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

The following IS SIN Dllueu StdDcuiSAAO
of the essential allegations in the bill:
|. Certain premises on Merchant street
in Honolulu, known as Honolulu haze,
as well as several other parcels Oh land
described in the bill, were the property OF
Kamehameha " IN his private capacity,
and were not part OF the Royal DOMAIN
commonly known as Grown Lands, al,
though they were enormously understood
and believed to be such and were SO
treated
U. An Act of the Legislature passed
January Bird, 1865. entitled 'An Act to re
lieve the Royal Domain from encum.
brances &c" authorized the Minister of
Finance to extinguish such mortgages on
the Crown Lands as might remain unsatls-
fed after the administrators OF hameha-
neha Tvs estate had exhausted the estate
belonging to their deceased intestate in
his private capacity.
Ill Improperly described in paragraph
l was not sold by the administrators, be-
cause it was believed to be part OF the
Royal Domain and not the private estate
Of the deceased King.
| ". The premises above described as
Honolulu Hale as well as certain Grown
Lands" had been encountered with mort
/
through the Intervention of VIM. Webster
as trustee, and this mortgage amounting
to S7.732, was paid off by the Minister of
Finance in pursuance OF the SAID Act OF
the Legislature OF January Bird, 1865, I'M
der the belief that all the private estate OF
Kamehameha " had been sold, and the
Minister OF Finance pad other mortgages
and liens amounting IN all to the sum OF
I h.. .lnl,+ 81
Kamehameha ".
Y. The plaintiff Is the Minister of Fl
nance and in behalf of the King and peo-
pie Of this Kingdom makes this demand
| and asks for the relief prayed for. The
defendant Emma is the widow and statu-
| tory heir of one half of the estate which
was of Kamehaneha ~.
VI. The premises above described as
Honolulu Hale were held by the Com
missioners of Crown Lands as part of the
Royal Domain from the time of the crea-
ton OF their trust by law until the ter
mination of a suit on the equity side OF
this Court brought by defendants against
the Commissioners OF Grown Lands, by
which the said premises were decreed to
belong to the defendants.
The bill prays that the premises known
as Honolulu Hale" may be decreed to be
chargeable with the amount of the mort
gage paid off by the Minister of Finance
and that they be sold to satisfy the
same &c.
Both defendants demur. The questions
raised are first the Commissioners of
Crown Lands necessary parties to the
bill either as plaintiffs or defendants.
] cannot see that the Commissioners of
Il i Il.
terest IN the premises sought to be charged
with the payment made, or in the fund
sought to be recovered by the Minister of
Finance. Their claims have been con
sidered and adjudicated by the Court and
they cannot be again heard.
Ii the Minister of Finance has paid
from the public treasury greater sum
than he would if the land in question had |
been sold to extinguish the mortgage upon |
it, his right to recover this sum from the |
owners of the land is unaffected by the |
fact that the Commissioner of Crown |
Lands have had possession of the premises |
and collected Its rents, for they are &C
countable for these rents, not to the Minis |
ter of Finance, but to the defendants, the |
holders Of the title. The diminution |
of the supposed extent of the "Crown |
Lands" by the decree above referred to in
favor of defendants, Is a matter not raised |
by the bill and the enquiry as to who
should be made good in consequence of
the diminution, whether the Grown or the |
public Treasury, is therefore not pertinent
to the issues before me.
l do not think the bill is demnrrable on
account of the nonjoinder of the Com
missioners of Crown Lands.
1. IL.
cUtOrs of the will of the late r. Keeliko-
LAM be made parties instead of her heir
and devisee.
1t is elementary law that it is not neces-
sary to make the personal representatives
of a mortgage parties to bill for fore
closure of mortgage upon real estate.
author says this is not necessary even
though the mortgage is primarily a debt
chargeable upon the personal assets.
If the bill sought to charge the per
sonality of the deceased defendant with
this claim or to recover from it any de-
ticiency over and above the proceeds of
of the land, her personal representatives
should be made parties, otherwise not. 1t
was so held in Leonard vs. Norris 9 Paige
SO. / think the heir and devisee who holds
the title to the real estate sought to be
charged with hen is the proper party
defendant. The case of Campbell VS.. Ia
maiopHi Hawn. r. AT is in point.
The objection taken by defendants that
the administrator of Kamehameha " had
no authority to sell the deceased Kings
lands in order to pay his debts, do not
think Is tenable The jurisdiction to order
such sales when the personal estate is in
sufficient has been exercised by the Pro
bate Courts Of this Kingdom from the
time OF their creation and confrmatory
statute was passed by the Legislature of
1876. The administrator did as matter !
of fact sell many of the Kings private s
lands IN pursuance of the authority of the
Probate Court. {
1 do not think that the fact that the law !
set apart one fourth of the revenues of t
the Crown Lands to be devoted to the re-
payment of the advances made by the t
Treasury affects this case.
Nor do think the issues raised in this l
case are affected by the subsequent act of )
1866 which discharged the Commissioners G
Of Crown Lands from all liability to repay i
these advances. This law made the grant U
N relief an absolute gratuity, the object b
II the Legislature being to relieve the 5
lOgd1 DpAAdln VI ble mortgages upon IT | Z
and thus benefit the reigning Sovereign f
~ enhancing the revenues Of the Crown d
Lands. ] can see nothing in the Acts in a
Heating that their object was to benefit r
he heirs -atlaw of Kamehameha ". The a
'elgnIng Sovereign Kamehameha V. was v
lot the deceased King Kamehameha Tvs L
leir-at-law. The statutory heirs of Ka-
~ were his widow and his O
ather III o.
The remaining question is whether the a
I'LL shows title to the plaintiff to relief in Il
equity b
Is there lien in equity in favor of the CT
,ubic Treasury upon the premises in 81
question by virtue Of the Treasury having tc
aid the mortgage upon it Is the Minis G
er of Finance subrogated to the rights of IL
he MORTGAGE? M
The decision of these questions involve to
he discussion of many points not easy of
olution.
The duty was by the law cast upon the =,
linister of Finance in connection with -!
ne Commissioners, to negotiate for the 8,
exemption of the mortgages, and he was n n
, issue the bonds and use them to ssex- A.
nnIllsl those mor.tu uas which ,,,,,- = Va