The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-01-14
Daluaiialt 6aEettE.
WEDNESDAY, JANUARY IA 1885
Supreme Court Of the Hawaiian IslAnds.-
At Chambers In Equity.
Ohm r.. SYLVIA, ct AL. VS.. ANTONIO J
LoPEZ, ET Al.


This is an action brought to set aside s'le
under power in mortgage of real and per-
sonal property upon the ground that the 5 le
was not advertised as required by the pow u
or initiated as provided by the mortgage and
was improperly conducted, and sales Illegally
made to different purchasers; and for al in-
junction against further sale Of part Of the
property mortgaged, and for relief in accord
ance with the facts alleged.
shall first consider whether the sale was
properly advertised under the power. The
power provides that the sale shall be at public
auction ''flst giving three weeks notice in the
English and Hawaiian languages in two news
papers published and printed in Honolulu, OF
the time and place OF such sale"
The undiaputed fact is that the first adver-
tisement was made in the HAWAIIAN GAZETTE
of June 4th, Wednesday, announcing the sale
for June oath, Tuesday, the intervening time
being only twenty days. The GAZETTE is a
weekly newspaper published on Wednesday
morning The proofs show publications there
in on June 18th, 18th, and 18th, only, before
the sale.
Is this giving three weeks notice in accord
ance with the power. Had the notice been Of
a sale upon Wednesday, June 25th, 1884, this
advertisement would have been sufficient in
time, | think, though it would have been bet
ter to say June 26tb; but as it was, think,
the advertisement was defective. have exa-
mined with care the authorities cited by Coun-
sci on both sides and find none which would
hold this advertisement to be enough. A dis
tinction is made between statutes or powers
requiring publication for certain period oft im'
and those requiring the insertion of the notice
a certain number Of times in newspaper.
See Wade on the Law Of Notice Sec. 1917.
l think this distinction substantially eI-
plains and renders inapplicable the cases cited
by the defendants counsel.
Had the power required a notice published
once week for three successive weeks, what
was done would have complied with it.
In Alcott VS.. Robinson, 81 n. Y. $50 cited
by defendant there was sale of real estate or
execution under a statute which required "tbat
the time and place of holding any sale of real
estate on execution should be advertised pre-
viuusly for six weeks successfully as follows
lat, a written or printed notice shall be fast
ened up in three public places in the town
where such real estate shall be sold. End, =
copy of such notice shall be printed once il
each week in a newspaper Of such county il
there be one"
In this case it was held sufficient to post a
notice as required by the statute forty-twc
days previous TO the sale, aud publish copy
thereof in six successive numbers of q weekly
newspaper although the first publication be
less than six weeks prior TO the sale.
In Priest VS.. Tarlton ct al n H. 93-4 cited
by defendant, the holding is that "When q
computation of time is to be made from the
time of an act, the day when the act is done
is to be included"
That was case Of the discharge of an in
solvent debtor from Imprisonment. The sta
tutc enacts that "said debtor may, at the expi-
commitment, apply 10 have said oath (for his
discharge) administered to him.
Tarlton was committed on the 10th of Sept
1922, and on Oct. 1922, applied TO take the
oath This was held sufficient, but the time
the day the oath was applied 10 he taken.
In Dexter VS.. Shepard, III Mass. $50 also
cited by defendant the holding is that "thC
first publication Of notice of sale under
mortgage power which requires the notice tc
cessive weeks; need not be made three week.
before the time appointed for the sale"
See also Bachelor VS.. Bachelor, Mass. 25(
" a ChCNAs III We. hilHulY
Barb. 1916 the statute required the order L
be published four weeks successfully in two
or more newspapers and it was held sufficien
though four weeks did not intervene between
first publication and the day to show cause.
In SWEET VS.. Sprague, SIS Maine 1902 citet
by defendant, statute requiring publication
paper, is complied with by three publication
.hnuyI, tho time int bof,vaar m
LEGATION and sale is not three weeks.
These are the strongest cases that have beei
found countenancing an intervening time O
less than the whole period specified for notice
These views are strongly combatted in seve
raj cases, and by three dissenting Judges il
Alcott vs. Robinson, 81 y. Y. l5O, above cited
but if correct, they fail to sustain the publica
ton in the case at bar.
In Early VS.. Doe, in l6 How. 81 the Sup
RENE Court of the United States holds that
notice Of tax sale required TO be advertised
once in each week for twelve successive week
is not given unless the first notice preceded
the sale eighty -four days.
See also. Ronkendorf VS.. Taylor's lessees
Peters 1899. Bunce VS.. Reed, l6 Barb
347-5O-l.
In Howard VS.. Hatch, 30 Barb. 297-30O-l i
is held that twelve successive weekly publica
lions are sufficient, though less than 81 day
intervene between the first and last, provides
the sale is advertised TO be at least 81 day
after the first publication.
The rule Of computation is to include tn
day of the first publication and exclude til
day, tie act is advertised to he done.
See Ward on the Law of Notice, Sectio
1910. Publication for three calendar month
was held accomplished by publishing frs
January 10th, and last April 9th. To the en-,
of April 9th, was just three months.
Id. Sec. 1911, 80 Cal. 34T.
In Townsend VS.. Tallant, 80 Cal. 1851 III
order for hearing in Probate was required to b
published for at least successive weeks-2
days only interviewed and the notice was he'll
insufficient.
In the People e1 rel DemareSt vs. Gray, /
Abb. Pr. X. n. Y. 40s, it is held that wher
notice is required TO be published for to
weeks, seventy days must intervene. Sc
also anon Wend 90.
In the light of these authorities, nearly al
Of which have been cited by the respectiy
Counsel, feel that must decide in this cas-
that the sale under the power requiring tn
first giving three weeks notice requires tire
weeks to intervene between the first publica
ton and the time Of sale mentioned, and tina
the notice of sale was therefore insufficient
and under all the authorities mentione
if the notice is insufficient the sale under it i
void and not merely voidable.
See also Perry on Trusts Sec. 6O2 p.
Bloom VS.. Burdick Hill 1904.
Sherwood VS.. Reade, Z Hill 1914.
Shaber VS.. Robinson, 81 U. S. 6s-7s-
Wade on Notice Sec. 1905.
Rorer on Judicial Sales Sec. 90.
Second. If the advertisement were to be he'll
sufficient, very serious objections are made /
the method of conducting tho sale Of the liv
stock. They consisted of promiscuous 10
of COWS, oxen and horses. The cows wer
sold in lots of twenty, the horses in lots of ter
and o1en, and cart were sold together
The sale was at Adams auction room in Homo
lulu, none of the property sold was presen
but was at Manoa valley, miles away. n
opportunity was given for inspection and Oh
lots were not separated but sold generally Il
lots Of SO many. Under such method Of sal
they could not fail TO be sacrificed, as wa
admitted on the stand by the Attorney, VIII
conducted the sale. In fact every sale Of liv
stock made was shown to be a sacrifice. l d
not think such sale can stand.
No actual fraud is claimed, and it is tb
fact that the plaintiff sylvia was present an
consented to the sale, and afterwards deliyere
stock under it, but manifestly he was sinpl
ignorant man and believed he was bound
Other mortgagors were not present, and al
not bound by what sylvia did, but 1 do nc
think he is estopped from now making the oh
lection he makes herein.
The sale would seem TO be void for unceI
tainty. Definite lots Of particular animal
were not sold-but general large lots. On