The Hawaiian gazette., 1885-07-29

rl,l.,is. January ssh, 1854, ss,eee. ard ea
April TtA, 1851. S.ooe, and en- April lSsh. lsSs'
$S,Oea.
NE eoatensioa On behalf Of The defendants
is that The SS,O0o paid 90 JANUARY SSth, lSsi,
should Ne Appropriated by plaintsns Y ne m
teress 70 Tall Que February ltthp saw,
A careful reaaiag eI the ueytgage shows
that Il dees neg in tcras secure tasnre advances
Ga tie other hand il eontAins no agreement On
tie pant e the mortgagees 70 aeke these az,
xaaees. II Was aaaoahsedly The hepe and ez-
,sectstioa 81 both mertgaEor ard tiorsgaEeea
that the rroeeeis ifesn the planiAiiea wesla .
spfsclent 10 Ray an earrent expenses, and =
sprrlus remain which was stipulated sheald be
applied each year towards paying the See,eoo
ssceros hy the mortgage.
NesSrs. n. ;, 6rinhaum \ o., nud'ag that
The pyoceels were not saaielenS TO eaysy On
ths plaaiatioo. write 20 The oorisorattos N San
Franeisco. under date ct March lsth, lSsi,
ststics that ~ iaaas being deposited With
thera 10 carry On the planting aud ether i'm
prpyelncngs which are absolutely necesSayy
fcr tie comiuE cgcp, On war plantation adj
wise them q dgait they bad drawn On them
fov Sle,eoe, aud desire the corpcyaiton e honor
il with its (yourl acceptance, Mr.. Ganhauin
saws be presented this arA0 personally, and 10
was net Paid. Previous 10 this, osso Mnser,
The President. and Hermann Liehcs, = direetor
Of the coapany, had paid two suns Of s. zee
each, (ln all Slo.eoo,l 20 him towards the run =,
ming expenses Of the plantation. This was IN
pursuance of > written contract, teopy q which
Is in eviienee) dated October 18th. lSSs, BY
which MesSrs. 6yinhsun 4 Go. agree 10 ad-
vance (iu aaiitioa 70 = sum Of SSo,Oee) the
further sum Ct Sle,e0e, for the earrens ex-
penses Ct running the plantation during the
mouths Cf November and December, lSSS, 10
consideration Of the promise Of Otto Mnser and
HernAna Liebes g repay this sum by Nay lst
iSS4.
1 thiak this makes Il clear that il was the
understanding q the defendant corpcratico
| tia. Messrs. Grinbanu, & Go, were not hound
to carry the plantation for three years. But
! GrinhAum 4 CO. had advanced the necessary
Suns, Up 70 that tiue, 70 carry oe the plSntS-
/ lios, and this with the knowledge and consent
| and presumably AZ the request Of the defend
art, The failure 10 pay the last drafs Of Slo,-
| 00e made j, certain that the corporation
wpcl6 advance 10 more. think that the
covenant IL the mortgage above stated, lnnui-
bered 81 only bound N. s GJinbaum 4 Co. not
g take rnoge than $50, 900 Of the net proceeds
Ct the crOp Of 1854 etc, towards paying the
So. 00o secured ~ the mortgage
| There were other ard prior mortgages On ihe
| property, which l presume the corporation
wished 10 pay with the excess over the SSo,-
coo, Bat eanHos gather fron The mortgage
that 6rinhauui & CO. were obliged to apply
the grUSs proceeds OF the sugars to the pay
neal Of So, 900 Of the mortgage debt.
/ BY the terms Of the mortgage, the Interest
due on the indebtedness was TO be paid befcrS
the application Of the SSo,000 This presup-
| poses SINE proceeds available to be thus APP
| piled, but If the plan.a,ion went behind and
cost more 70 rcr il than The returns, and the
owner did not supply funds to run it, fail 8
see how be could expect q mortgage to apply
any part Of the grvss receipts to payment o.
interest or principal The 5000 paid in Jan.
uary by The deferdAn! corporation, was MOI
| directed BY j! to be applied TO the interest tt
fall due in February, but as l understand IL, i
was Intended for running expenses Of the
PiaaiAticp.
{ thi7f. On principle, Sat- NSssss, y, 9
6CluGLum i CO, we're n0t 6oG1d 10 apply tbi;
sgu o tie PSymen: OF The interest. think
this Is well supported BY authority also.
! The general rule is that i mortgages debtor
nay il the 6rst Instance appropriate pay
usas to whatever account he pleases, ethel
| principal or Interest, or 70 another debt duS
- -ll4 4e-@N- @--ala-A-A e~@@NsN-N1
sscnEl,ssa Bloli1saz So}rgziiS. But when ths
debtor has omitted to make any specific appli-
eaten Of the money be has paid, bat has lef
this to the PresumpSioas Of the law, or to b
applied by the creditor as he may see hs. h'
| cannot afterwards 70 hack and make an apPTc-
| priatiou Of il himself The general payment
nay be applied by the creditor to elaia
against the debtor Tor which he has no security
| or auoug secured claims to that for which b
| has the least security" Jeaes on Mortgages
Sec sos and cases cited.
Here we have 10 direction to apply The pay
| usnE BY the defendant 70 the interest, and al
appropriation BY the plaintiff towards the IN
secured Debt See also Doodlf IS, PsIrrs,
! Allen Is5, HUE rs. Lars, II Pick. S3l.
l see 10 reason on the defendants znswe
and proofs % rescind the order Of foreclosure
already made n this case
A. $. Hlrtwell for plaintiffs; Paul Neumanl
aud F. N. Hatch for defendant.
Honolulu, July Il, 1855.