The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-01-14

Third. The regularity Of the sale was
further objected to on two grounds; erst, that
the mortgage provides that upon failure 10
pay, the mortgage is authorized and empow-
cred to enter into and take possession Of the
property and cliattels mortgaged and that this
was not done: and second that Mr.. Brown, the
plsinIiffs solicitor bought several lots of the
property sold which he was unauthorized to
do Nv law.
\, to the point that no entry was made be-
for, sale, think enough was done 10 autho-
riz, the advertisement for sale. The interest
due was demanded, and threat made OF sale
und,r The power, unless payment was made.
TIE mortgage continued to neglect TO pay.
To enter and take actual possession of the
stock till Immediately before the time Of the
sale would have been inconvenient and expen-
siTe. The power does not in terms require, it
only authorizes and empowers" entry 10 be
made.
Upon the point that the solicitor of the
mortgage bought some of the property sold,
the authorities cited by plaintiffs Counsel seem
strong, but am inclined TO doubt the wisdom
of the rule. Provided the sale be fairly couduc-
ted do not see that injury can arise by allow
ing the mortgage or his solicitor to buy. The
mortgage is interested at least TO bid up TO
the amount of his mortgage. At most the sale
would be vOidable, and if at fair prices and
Some' time passed before objection was made
certainly the sale should stand.
But for the reasons first and second above
given, the sale must he set aside and the con-
Veyances made Hereunder must he cancelled.
There are several purchasers upon whom
this decree will operate as a hardship. They,
however have no remedy against the plaintiffs
because thereof. Some of the animals bought
IL anIJ h.. fI,o
chasers. The animals still remaining must be
given up 10 the plaintiffs those not forth
coming must he accounted for by the pur-
chasers on reasonable terms, and proofs rela-
tive TO the same and the values, and also the
expenses of returning the animals returned,
may be taken before the Clerk and on his re-
port an equitable decree will be made in regard
thereto.
computation may also be made by the
Clerk of the amount due on the mortgage 10
the end that the plaintiffs may pay the same
in full.
Upon presentation, proper decree will be
signed under this decision.
c. W. Ashford, for plaintiffs; f. NJ. Hatch,
for defendants.
Honolulu, October, 9th; 1854.
Supreme Court of tho Hawaiian islands,
At chambers in vacation.
Ii THE MATTER OF THE PETITION OF KAMEE-
VI, KEALoHA AND PoLIKAPU.. FOR WRIT OF
PROHIBITION.
Before chief JDstics Judd. Opinion Of The Court.
BY the petition in this case and the an
nexed exhibit it appears that on the Sth
of November 1884, an action of trespass
was begun in the District Court of North
Kona, Island of Hawaii by Ben Tenorio
alleging that they had wrongfully entered
fenced close at Kahaluu in North Kona
and built house thereon, contrary to the
rights of the plaintiffs to their damage
$40 also that the case was, heard by j. q.
Hoapili the District Justice, on the 10th
of November and the petitioners answer
ed that they had entered the land but
that they had n right so to do under the
authority of one Helani ivy who claimed
the land; and that j. e. Hoapili District
Justice rendered Judgment that the petit
tioners should remove the house from the
land or pay damages $40 and costs of Court
S20.10 and that execution has been or
is about to be issued therefor. The peti-
ton prays for Writ of Prohibition, to be
directed to the Judge and the parties
suelng in the inferior Court, forbidding
them to proceed further in the cause on
the ground that the cause is beyond its ju
risdiction.
The plaintiffs in the trespass suit, res
pondents herein, demur and say that the
petition does not set forth such case as
entities them to the relief prayed for. The
issue of law thus raised is whether a Dis
trict Court has jurisdiction to try an
action of trespass quaro elausuni .tregi when
the defendants plea is FJeI1pa tenementunl
or title in themselves
The petitioners counsel, J. NJ. Poepoe
and W. L. Holokahiki rely upon Coney VS..
Manele 4 Hawn. 154. in support of the
proposition that District Courts cannot try
titles to land; also that petitioners are
not bare tort-feasors, but that there is a
priyy of contract between them and He
lani who has the legal title. Referring to
Waits Actions and Defences p. 80 and
cases cited.
The respondents counsel, Kinney and
Peterson, urge that an action of trespass
determines nothing in respect to the title
of the land in question beyond the action
tried, and rely upon Chandler VS.. Walker
Il n. H. 2S2 and cases cited: Waterman
on Trespass s 1119 ct seq, also Waits
Actions and Defences supra.
Per curidm. The case of Coney VS.. Ma
nele was an action for summary possession
of land where the defense was made OF
title in the defendant, and it was there
held that the District Magistrates have nc
right to try titles to land This is not
disputed by respondents, but they claim
that the title TO the land is not involved
in this case
In Waterman on Trespass, Sec. 1119 the
author says that "a judgment for the de
PENDANT in an action of qudre eldusum fregi
would not be conclusive upon the title
because the right of possession only and
not the title is involved in the action OF
trespass." = "Yet the title may
be Irrigated as a matter directly involved
in the issue; and when that question is
adiudicated and judgment rendered in
this form of action by Court of compe,
tent jurisdiction, the Judgment will con
clude the parties and operate as an estop-
pei If the matter appears on the face OF
the record, or as evidence conclusive in
relation to the title in any subsequent lit
CATION of the matter between them" 4
Cowen, $50, IL N Y, 420.
In 2 Greenleaf's Evidence, Section Glib
the author in speaking Of trespass says
Though the right of property may, and
often does come into controversy in this
action, yet the gist of the action is injury
to the plaintiffs possession" And in Sec
ton 626, "The plea of H6erm teaeaeatun
admits the fact that the plaintiff was in
possession of the close described in the
declaration: and that the defendant did
the acts complained of; raising only the
question whether the close described was
the defendants freehold or not"
An inspection of the petition shows that
the defendants admitted the acts com
planned of, but set up title of third party
| to the land, under whom they acted. To
properly decide this suit the title must be
passed upon, and in the law Courts OF
Record of this Kingdom there would be
no difficulty in the way of this procedure
But it would not be right to allow the
title TO real estate to be thus settled by a
District Justice, for a Judgment of this
character in an action of trespass would
work an effectual estoppel in subsequent
action of ejeetment- certainly SO far as
the particular part of the land trespassed
upon was concerned.
Assuming it to be law that actions tc
| try titles to land are beyond the jurisdic
ton of District Courts position not de
MED by the respondents counsel-I thinl