The Hawaiian gazette., 1884-08-13
Supreme Court of the Hawaiian IslAnds-,
In Equity
MNKNNoNNoA MERsUURGH ". JAMES RI.S-
Ton AND TIN UNIcN MILL Co.
OPINION @, Chancellor .J"da.


This is a bill in equity to f0reclose mort
gage made by the defendant ReutOn on certain
lands in Kohala, Hawaii, the estate having
been transferred to the Union Mil Co.
The mortgage is for :, 900, will interest at
s per cent per annum and is dated Sept. llth,
1871. 1t became due Sept llIh, lssl. The
answer admits the execution o. the mortgage
and the transfer Of the estate, but alleges that
when the mortgage was due payment was not
demanded, though the defendant Co. was vii
ling and prepared to pay the amount due,
principal and interest: and on enquiry why Il
was not demanded defendant learned that the
mortgage and note were lost, whereupon de-
PENDANT agreed 10 pay principal and interest
upon = sufficient bond Of indemnify being exc
cuiei The offer to furnish indemnity was
made by plaintiff IN March 1854. The proofs
show that the interest was paid regularly up
to the llIh March, lsSl, and that there was
due Of interest, mp 70 tile lltll September;
ISL, eighty dollars. The sum Of $1,000 prin-
cipal aud $50 interest is paid into Court. The
contest in this case Is upon the question
whether the defendant Is now liable for full
interest TO date. The defendant contends that
interest ceases 70 run from the time Of It's offer
TO ray,un the execution Of indemnity.
The plaintiff contends that DO legal tender
was made and that full interest shoHld be
allowed her.
The plaintiff saws. in evidence, that she
never demanded payment o! the mortgage nor
authorized any demand on her behalf; also that
no tender WINS made to her. 1t is IN evidence,
however, that M Brown the attorney for de-
PENDANT wrote, soon after the mortgage became
due, 70 Mr. Vida. who was acting as plaintiff S
agent, and ascertaiuel that the mortgage and
note were lost and thea offered TO pay the
amount due, on Mr. Vida's engaging to provide
suitable indemnity This Mr.. Vida declined
to DO, and matters went along until March Of
this wear, when Mr.. Brown offered to pay one
halfo the computed interest, which offer being
refused, this bill is brought
In Jones on Mortgages, See. 500, 1t Is laid
down that "it is a settled rule that interest
will cease to run from the time Of tender, when
the money really due upon the mortgage is
actually and properly rendered by person
having the right to make the tender, SO that
the mortgage is bound TO accept it.
But tested by flIe well settled rules Of law
applicable. no sufficient tender has been shown
10 have been made For tender must be alb
soluie and unconditional. No actual money
was offered.
Indemnity Is required in case OF q lost note
in order that the payee may not be twice liable
on the same instrument, hut there are album
dan, authorities to this effect tina; if the note
is not negotiable no indemnity can he required
No question is however made in this case as
to tie right Of the plaintiff to foreclose the
mortgage upon secondary evidence, l. c, the
certified cory Of the mortgage from the Reg
istrar's Office the original being lost
an Of the opinion that the plaintiff ought
to recover full interest. 1t was the duty Of
Tie debtor 10 see his creditor, to make lis pay
meut aud to make legal prefer Of the money
If he expected TO stop interest.
Decree accordingly.
IN. Norserrai for plaintiff; c. Brown FOL
defendants.
Honolulu, July 22d, lssi.