The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-08-21

pieces OF property, to-Wlt: the Anu
puaa of Pupukea and Paumalu,
situate in the District of kooIauloa,
Island of Oahu, and which were at
that time and are now part of the
Royal Domain, or so-called Crown
lands, and that said payment was
made in order to release said lands
from said mortgage, and WIS not
paid by mistake;
9Th. They admit the execution
of the deed set forth in subdivision
(12) of said bill of complaint, but
deny that the same was made un-
der the belief or for the considera-
ton named in said paragraph;
7th. To the (16) subdivision Of
said bill of complaint they say that
they do not know whether said
bonds or the interest thereon have
been paid or not;
9Th. And these defendants fur
Their answering say that they admit
that proceedings were taken by
the said Emma Kaleleonalani and
the said Ruth Keelikolani as in
said bill of complaint alleged, and
that judgments were rendered in
said actions as therein set forth;
9th. And these defendants fur
Their answering say, that the said
sum of S27, 200 is not chargeable
upon the premises in said bill of
complaint set forth as in said bill
of complaint alleged in that, the
same was assumed by the Ha-
waiian Government by resolution
of the Legislature approved the
9th day of July, 1866; and that no
lien in equity exists in favor of
complainant in the premises,
Wherefore they pray to be dis.
missed hence with their COSTS
Messrs. F. NJ. Hatch and c..
Brown for respondents say:
~. Upon the facts shown at the
hearing it is respectfully submitted
that the Hawaiian Government is
not entitled to be subrogated to
the rights of the mortgage under
the mortgage given by VIM. Web
ster to J. Mott Smith, dated March
2, 1868.
''The Legislature was not acting
under compulsion to protect any
existing title in the Government,
therefore the doctrine of subroga-
ton does not apply.
"See Sheldon on SEGREGATION,
Sec. IL.
''Neither was the Government a
creditor of the estate of Kameha-
meha ~, nor surety, nor did it
have such an estate or interest in
the subject matter as would bring
it within the limits of the rule
established by courts of equity
"Webster's Appeal, sc Penn. st.
r. 400;
ginger VS.. Letter, 80 Ohio ct,
21O;
Sanford VS.. MCLEAN, Paige, N.
Y. III;
"Shinn VS.. Bodd, IA N. Y. Eq.
234;
"Woods VS.. Nilsson, II III. 21S.
"Kitchell VS.. Mudgett, 81 Mich
80;
"Moody VS.. Moody, IS Ne. 1855;
"Mosiers APP. sc Penn. St. 76.
"The mortgage was not paid at
the instance of the debtor, or of his
administrator, nor from the circum-
stances of this case can it be infer
red that it was the intention of the
parties that the Government should
be entitled to the security. The
contrary IS the case as expressed
by the Joint Resolution of 1865.
"Candle VS.. Murphy, SO Ill. 352
"The Hawaiian Government was
not secondarily liable for the debt
secured by the mortgage, nor il
any way liable, it cannot therefore
claim the right of subrogatlon.
"Bispham's Principles of Equity
Sec. 1876 and authorities there
cited.
''See also Sec. 1876.
II. There was no mistake. The
mortgage i'll question was upon two
Crown lands, Paumalu and Pupu
kea, as we'll as Honolulu Hale
The mortgage was not then due
The MORTGAGE could not be com
PEELED to realease any part of biz
security. There was no other
method in which these two Grown
lands could be released from the
mortgage then by paying the debt
The Commissioners were bound by
law to take UP this mortgage. Act
ing directly in accordance with The
law there is no possibility of saying
they acted by mistake. The case
is therefore entirely different from
that presented on demurrer.
q The most that can be said i
that IN carrying out the law a bene
fit has incidentally resulted t.
others. Suppose there had beer
sureties upon this note? The pay
ment by the Crown Commissioner
would have been q benefit to them
Could they be held to contribute?
I" The private estate had been ex
hausted when this mortgage wa
taken up. There is no evidenc
that there was any estate availabl
for the administrators to dispose Of
The Connecticut cases whic
have been cited of the payment c
money to another under mistak
are not at all in point, because th
I money had to be applied as it Wa
to carry out the Act.
The transaction was simply
loan by the Government to tn
Crown Commissioners. There wa
| no intention to keen alive the mort