The Hawaiian gazette., 1885-04-08
Aawaiiatr 6azette,
WEDNESDAY, APRIL 5 1855
supreme Court of the Hawaiian Islands
In Equity.

Supreme Court OF the Hawaiian Aslanos--
In Equity.
II. $. GRtvBAusf AND VI. LoU1ssoN, CON-
rR1srvo THE PIRN OF IS. GRISBAUN 4
COMPANY, VS.. THE HEETA SUGAR PLANT
ALTON Co, c. NJ. COOKE, H. MAoFARLAEE
q Co. AND ALEXANDRA KENNEDY.
Bgtors Chancellor yr5l. Opinion.
On The bill sets forth that the plaintiffs on
the 18th August 1853, took 70 ortgage from
the Heeia Sugar Plantation Company corpor-
alton established under the laws OF the State
Of California, upon all the property cOnstiiut-
ing the Heeia Sugar Plantation, to secure the
repayment Of SCI, 900, in the three years, witt
interest semi-aunually: and. that $4,000 and
more have been advanced by plaintiffs to carry
on the plantation; (2) that the semi-annual
interest (2GOO,) due on the 10th February
1854 has not been paid; (3) that said mortgage
purpurted to be subject to the three following
mortgages, (irsD from J. Mckeague and
Alexander Kennedy to H. Hackield & Co,
dated Sept. 80 lsT9, and now by successive
assignments held by c. NJ. Cooke, defendant
(second) from J. McKeague and Alexander
Kennedy 10 II. Macfarlane & Co, defendants,
dated July 1881, tthird) a mortgage from
!. McKeague to Alexander Kennedy dated
Sent. p 1851; C4) that plaintiffs are informed
and believe that the last mortgage mentioned
was collusive and fraudulent, &c; 90 thatai the
date Of the execution Of the mortgage to II.
Macfarlane * Co, McKeague and Kennedy
were partners and plaintiffs cannot ascertain
if there has ever been legal dissolution Of
said partnership; that Kennedy's last place
e ! s..t E,s- ell nd n4 lint Nh
s. NJ. Damon is his attorney in fact;
C6) That said mortgage from McKeague and
Kennedy to Il. Maclarlane & Co, was only to
secure the debt due to II. Macfarlane & Co,
and for moneys advanced by them. % That
the said mortgage was, among other property
upon the lease Of the Ahupuaa OF Heeia from
c. r. Bishop and wife TO John McKeague, and
by a subsequent agreement dated October
1856, extended for the period Of 10 years ad-
ditional to October 1894. That after the
date Of the mortgage to II. Maciarlane & Co.,
and before the date Of mortgage to plaintiffs.
the lease aforesaid was cancelled with the
knowledge aud consent os II. Muclarlane g.
Co, by written agreement dated February
] lss3 and recorded; that a new lease of the
Ahupuaa Of Heeia was executed to the Heeia
Plantation Company dated JANUARY 29 1883,
for the term Of p years commencing October
] lss2, and that thereby II. MaCfarlaue & Co,
lost the security Of said leasehOld Of the land
of Hccia
The bill prays, for an account Of what is
due plaintiffs, principal and interest, on their
mortgage
,. That in default Of payment the Heeia
Sugar Plantation Company may be fOreclose
of their equity Of redemption in the mortgaged
premises.
,, That all said mortgages may be mar
shalled in the order Of their priority and an
account taken Of what is due on each.
3. Thatthe mortgage to Kennedy may be
decreed to be fraudulent aud void
5. That said II. MaCfarlane & Co, have no
lien or security upon the said lease Of the
Of Heeia.
6. That said mortgage Of II. Macfarlano &
Go, is a valid security only 10 the extent Of
moneys advanced by H. Maclarlane & Co, to
said John McKeagUe and Alexander Kennedy.
:. And for process aud general relief.
The bill is dated July 1881. On the %
July, John McKeague by his guardian 7. A.
Lloyd was made party defendant to this
action, on the ground that by decree Of this
Court IN former case McKeague is entitled
to a certain equity in the property involved in
this controversy.
The defendant c. NJ. Cooke submits to such
order OF the Court as may be made.
The defendant Kennedy says that he dis
solved his copartnership with McKeague a,
he time Of bis sale to him Of his interest in
he plantation for S54,5OO, and that the
in question was given him to secure
part Of the purchase money and was not i'll
tended as fraud upon any one; that the
Ieeia Sugar Plantation Company purchased
he premises from McKeague with full know
edge Of respondents mortgage and assumed
payment Of same and that plaintiffs had full
knowledge of said mortgage before making
a. advances and took their mortgage subject
10 respondents mortgage, and plaintiffs have
made payment of one note of $4,000, secured
10y said mortgage and as 10 other matters they
are either denied or the respondent has no
knowledge Of them.
George W. Macfarlane and Henry Il. Mac
iarlaue Of the firm Of G. W. Macfarlane & Co.
make answer and say they are wrongly i'm
pleaded as II. Macfarlane & Co; thatthey are
ignorant Of the matters set forth in the LIST
and 2d allegations Of the bill: and that the
mortgage made by McKeague and Kennedy
10 ii. MaCtarlaue was by him assigned TO G.
W Nactarlane & Co, on the LIST day of Au-
gust a. D. 1881: that the moneys advanced
by them, 20 secure which the mortgage was
given, were made TO carry on the plantation
OF Mcheague and Kennedy, and that advances
were so made until Kennedy sold to McKeague
and thereafter II. MaCfarlane continued to
make advances to McKeague and acted as his
agent until LIST August 1851 when II. Macfar-
lane transferred the agency and assigned the
mortgage 10 g. W. MaCfarane q Co, Of which
hrm Il. MaciarIane was and is a partner: AID
that Il. W. MaCtarlane Il Co, continued TO
advance money under the mortgage to Nc
he9gue 10 carry on the plantation until the
3Oth June 1852, Oh which day McKeague
owed them ii,Gs6.sl Of which $4,000 is
secured by the said mortgage and is now due
and owing with interest: that on the LIST July
los2, the plantation having passed into the
possession of the Hecia Sugar Plantation Com
pany, new account was opened with it and
respondents advanced money 10 the company
10 carry on the plantation 1883
when IL amounted to SIS ,sGs.I5, over and
above the amount of $4,000 secured by the
mortgage and that this amount was paid to
respondents by the said company on the trans
ier Of the agency to the plaintiffs. They admit
that their said mortgage includes the assign
ment Of a lease by c. r. Bishop and wife ia
Mchuague and that afterwards they made a
now lease to the Heeia Sugar Company, but
they deny that the first lease to McKearue
has ever been cancelled or that they ever con-
scented to the cancellation thereof aud they say
that the Heeia Sugar Company had no power
or authority to cancel the lease, sc.
The hrst question raised is whether the
mortgage dated July ssl to II. Macfarlane
y Go, covers and is secured upon the lease
Of the Ahupuaa Of Heeia. On the lst October
lS59 the owners Of this land Mrs c. r. Bishop
ana her husband had by an instrument in
writing and recorded 10 Book 20 folios 295
and 2g6 extended to John McKeague the lease
Of Heeia Tor term Of thirteen years from the
LIST October ISL This lease would not by
ITS terms expire until October 1891 Mac
iarlane.s mortgage recites this lease in the
schedule OF property mortgaged. But after
the Heeia Sugar Plantation Company of Cali
ioruia had purchased the plantation from
MCkcague, a new lease was obtained by il for
twenty-five years from the LIST October 1852
az an increased rental This lease il dated
the 2qth January 1888.
Il was admitted by counsel for respondents
That this new lease is not within the Macfar-
lane mortgage. But Is commended tia: As
Aaciarlane paid the increase rent under the
new lease, and as the cancellation Of the lease
covered by his mortgage is on record. he was
bound by the notice thus acquired and il
amounts 70 a consent aud ratification of the
whole transaction. The evidence shows that
Maciarlane did not know of the cancellation
Il The old lease or the making Of the new