The Hawaiian gazette., 1886-05-04
Supreme Court Of the Hawaiian Islands,
In Equity. In Banoo. April Term 1886.
y. R. SILVA EFT AL. VS.. A. j. LOPEZ Er AL.


BEFORE JUDD, c. J., MouIII AND PRESTON, }. J.
Opinion Of the Court per JUDD CT
II appears that at the close OF this case,
which has been before the Court in various
stages. since August, 1884, at hearing had
before Mr.. Justice Preston, on January 10,
1856, decree was made ordering judgment in
favor Of A. J. Lopez against John R. Silva
for 81 ,O63.26, being tho amount due and I'M
paid, and owing by said John r. Silva 10 said
Antonio j. Lopez, after deducting the amount
realized from the sale of the mortgaged prop
erty, which amount, so realized, has been
deducted and paid to said Lopez on account
of the finding of the amount due him by the
Masters Report, of ST,20l.l0, said sum SO
paid on account of said sale being S6,l37. 81
And it is further ordered that the Clerk pay
the balance of money in his hands Oh account
of said mortgage sale to the said A. j. Lopez.
From this decree Mcssrs. Ashford & Ash
ford, attorneys for ]. R. Silva, appeal and say
that the Court has no jurisdiction to render
Judgment against complainant; that the res
pondent Lopez, should have filed cross-bil
to entitle him 30 judgment.
The bill in this case was TO set aside sale
made by defendant under a power of sale mort
gage by the plaintiffs, and the allegations
therein make it substantially bill for an &C.
count and for redemption Of the mortgage.
1t contains the tender to do equity, as fol-
lows: "Your orators and oratriceB hereby
Offering TO pay said mortgage or other parties
in interest, whatever sum or sums may, upon
such account as above prayed for, be found due
and owing upon said mortgage"
We think this was sufficient upon which 10
decree judgment against complainant for the
aTS6Gnt f36Ed due by hin on Interference
The decree of Mr.. Justice Preston, of 10th
January, 1856, was IN conformity to the de-
cree Of the full Court of date the 18th October,
1885. The part in question is as follows:
"And this Court doth further order and de-
cree that the property comprised in the said
deed of mortgage be sold by public auction
under the order, direction and control of one
Of the Judges of this Honorable Court, at the
expiration of one month from the date of the
ascertaining the amount due in respect thereof,
unless previous to such sale the complainants
pay TO the defendant, Lopez, the amount as
certained TO be due as aforesaid; and that the
money arising from such sale be paid into
Court, and after payment thcreout, of the
amount due TO the defendant, Lopez, the resi-
due be divided among the parties complainant
according to their respective interests"
Ii is clear that as the complainant did not
pay the amount found due on his mortgage,
the sale of the mor1gaged property was justi-
ied, and was necessary to foreclose the mort
gage and end the litigation. The proceeds of
the sale were insufficient TO pay the amount
found due, and judgment over for the de-
hoiency followed, according to the practice of
this Court in foreclosures of mortgages.
We are referred by counsel for plaintiff, to 2
Jones ON Mortgages, Sec. III, as follows:
"a Court of equity cannot, independent of any
provision of statute giving the authority, de.
cree the payment Of the balance that may re
main of the mortgage debt after applying the
proceeds Of the property mortgaged, unless the
debt, without the mortgage, was such that a
Court Of Chancery would have jurisdiction of
| il and could enforce il. "Witbou,
the aid of statute or of circumst;lnc giving
equitable jurisdiction over the demand, the
only proper remedy for the deficiency is by
action at law, upon the bond or note"
Citing Dunkley VS.. Van Buren,, Johns CHI
AL.
We also refer 10 Jones' Mortgages, Sec
| 1895, "The bill TO redeem must make ten
der of the amount the plaintiff comedies to be
due on the mortgage debt, or must offer to pay
whatever may be found to be due.
II seems to Us. that the admission in the bill
Of the execution Of the note and the mortgage
securing it. and the offer TO pay whatever sum
or sums may, upon account, be found due,
gives this Court in equity jurisdiction over the
debt and the means Of enforcing it.
The appeal is dismissed.
Ashford g. Ashford for plaintiff; c. Brown
for defendant.
Honolulu, April rs, 1856.
4