The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-08-12

was under no obligation to pay; and it il
not allowed where it works any injustice
to the rights of others" Sheldon on Subr
Sec. L
Bispham says, The principle is gene
raj one, and will apply in every instance
Except in the case OF mere stranger
where one man has paid debt for which
another is primarily liable" Bispham
Principles of Eq. Sec. 337.
Chancellor Kent in the leading case in
America. Ch6esc5rough vs.. Willard l John
Oh. 4I2 SAYS, 1T is a rule which is founded
on natural Justice and is recognized in
every cultivated system of Jurisprudence y
The doctrine does not depend upon
privity. 1t is not necessary to show any
privity of contract between the Minister
of Finance and the mortgage.
The debt has been paid and the mort
gage discharged. But this is not fatal to
the application of the doctrine, although
as between debtor and creditor, the debt
may be extinguished, yet as between the
person who has paid the debt and the
other parties the debt is kept alive SO far
as may be necessary to preserve the Sc
curities."
Val VS.. Mason 102 Mass. 316 This case
is an instructive one. A grantee of land,
who, through neglect to record his deed,
has had the land taken from him on an
execution issued upon Judgment rem
dered against his grantor in an action on
debt secured by mortgage of the
grantor's other land, may maintain bill in
equity against his grantor and the judg-
ment creditor, to be subrogated, to the
extent of his loss by the levy, to all the
rights of the latter under the mortgage,
not required for the full satisfaction of
the debt. 1t was claimed in the demurrer
that the bill showed that the mortgage
was extinguished and discharged by the
levy so that the judgment creditor had no
rights to which the plaintiff could be sub
rogated or which could be assigned to the
plaintiff; also that the plaintiff omitted to
record his deeds as required by law through
no fault of the defendants but through
gross negligence from the consequences
of which he had no ground of relief in
equity. Chapman j. says "The doctrine
of subrogation is not founded in contract,
either express or implied, but is resorted to
for the sake of doing justice between the
parties. In the present case, the plaintiff,
by neglecting to record his deed, left his
land exposed to be attached and taken on
execution by the creditor of his grantor.
1t has been taken and set off by the de
PENDANT Thayer The plaintiff has thus
paid his grantor's debt which the grantor
ought to have paid himself; and it is but
just that he should have the benefit OF THE
security which his grantor had previously
given to the creditor for the debt" l will
again refer to this case later on.
The mortgage upon the land in question
should in equity and good conscience have
been paid by the administrator of the
estate of Kamehameha ~ out of the pro-
ceeds of the land itself, for it was private
land of the King The Minister of Fl
nance was not mere volunteer, for 1t is
to be presumed that he was requested to
pay this mortgage by the administrator.
He cannot be regarded as having made
the payment officiously and without any
color of obligation to do so. The act in
question placed the obligation upon him
to discharge the mortgages upon the
Crown Lands. In attempting to do this
he made the double mistake, first, of pay
ing the mortgage before the administrator
had exhausted the private lands of his
and secondly, of paying mort
gage existing upon private land of the
King. But he nevertheless paid debt
which the administrator or the heirs at
law of the King should have paid, and
under the definitions above given of the
doctrine of subrogation, he should have
the benefit of the security given by the
ancestor of the heirs at law to the mort
gagee.
"Where the owner of premises conveyed
to him subject to mortgage, in ignorance
Of the lien thereon of Judgment against
a former owner, subsequent to the mort
gage, pays the mortgage and causes the
same to be satisfied of record, he is entitled
10 have the same reinstated as lien prior
and paramount to the lien of the iudg-
nent" Barnes VS. Not 81 n. Y. 1877. Here
he Court say so much of the judgment
rs restores the mortgage upon the pre-
misses now owned by the plaintiff, paid off
md satisfied by the devisees of Burr, the
hen owners, and Teinstates the same as
len upon the mortgaged premises prior
md paramount to the lien of the Judgment
by Orchard and assigned to the
defendant, is clearly right. Upon pay
nent of the mortgage by the then owners
If the premises, they were entitled to all
he rights of the mortgage and to an as
ignment of the mortgage; and having
,aused the same to be satisfied under cir
authorizing an inference of
nistate of fact, equity will presume such
mistake and give the party the benefit of
he equitable doctrine of subrogation. To
10 this IN this case is to prevent manifest
INJUSTICE and hardship and interferes with |
10 superior intervening equities"
Here the payment was made in ignor-
nee of the fact of judgment lien.
In the case from 102 Mass the payment |
vas made Tor rather the land was levied |
POM because the grantee had, through |
ignorance of law, not recorded his deed.
In the case before us, the Minister of
finance was ignorant of the fact that the
lortgaged premises was private land of
be King. He acted under the mistaken
elief that the land was Crown Land. Is
lis such a mistake as Will entitle him to
elief?
The general rule is that ignorance Of
Nv will not furnish an excuse for any
erson, either for a breach or for an omis-
ion of duty. / Story's Eq. Jur. Ito. The
resumption Is that every person is &C
TAINTED with his own rights, provided he
as had reasonable opportunity to know
lem. Judge Story says, id Sec. 116,
that whatever exceptions there may be to
lis rule they will be found to have some
ing peculiar in their character and to
lvolye other elements of decision" Judge
tory i'd 12O says "The most general class
cases relied on as exceptions to the rule,
that class where the party has acted
nder misapprehension or ignorance of
is title to the property respecting which
me agreement has been or conveyance
1ecuted. So far as ignorance in point of
ct of any title in the party is an ingre-
ent IN any Of these cases they fall under
very different consideration" hume.
us cases are given where equity relieves
person who had parted with title of
hose existence he was wholly ignorant
|. Secs. 123, la, lbs. q
In 10 American Decisions 1872, the case
Black and Ward from q Mich. 191 is
upon and all the principal U
liberties are well reviewed L excerpt
e following: "The case of Brigham VS..
1gtaH l Yes. Sen. 126 is an important
Sc on this side. The plaintiff had puu- {