The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-09-10

OPINION OF THE COURT BY M'cULLY, ].
Referring to the opinion of Mr..
Justice Bickerton for the statement
of the case, in adopting, as we do, his
reasoning and conclusion, we may
further observe that we do not read
the statute as expressly requiring
that certain acts be done by the
mortgage personally or any assign
personally, and implying that the
things done shall be invalid If done
for him or on his behalf by another
person. In this respect the fore part
of section one, prescribing that no
tice of intention to foreclose shall be
given by publication and further ad-
vertisement of the sale, stands upon
the same footing as the latter part
which requires that She" that is, the
mortgage or the person having
estate thereon, shall within thirty
days after selling the property in
pursuance of the power file copy
of the notice of sale and his affidavit
setting forth his acts in the premises
fully and particularly, etc. Now it
has not been contended in this case,
and no reasonable contention could
be made, that the mortgage could
not employ an attorney at law, an
attorney in fact or mere business
agent to do for him the preliminary
acts required. Such other construc-
ton would debar an absent mort
gage, for instance, from this pro-
ceeding in foreclosure. But if this
may be done by such an agent, who
but he he is qualified to make the
affidavit setting forth his acts! So
that the reasonable construction of
the statute would be that these GER
tain proceedings be had, for the pro-
lection of the mortgagor. When it
appears in a contention that they
were done by person properly act
ing for the mortgage, and one can
not suppose that an unauthorized
stranger could assume to act, which
would be simply fraudulent, the pro-
visions of the statute are satisfied.
The common maxim, Qui tacit per
alum .facit per Sc, seems to be appli-
cable here.
1t is the ordinary phraseology of
an Act requiring a person to do
something, which is of a character
to be done by another person in his
behalf.
Story's Equity Jurisprudence, Sec
1927 a, prescribes that such powers
of sale are construed literally for the
purpose of effecting their general
object. The objects of the statute
in this case were effected, and it
would be an illiberal construction to
hold that the acts of this business
could only be validity done by the
mortgages in person.
In Field VS.. Gooding, LOG Mans.
80, the Court say, in a contention
that if the statute provision to file
the affidavit within thirty days is
not complied with the sale becomes
void, that the title passes by the
sale and deed and Immediately vests
in the purchase; that it was not the
intention to make it subject to a con-
dition subsequent and liable to be
defeated by failure of the mort
gage to perform an act which must
follow the conveyance in point of
time; that it must be regarded as
directory and not precluding a re-
sort to other evidence that the power
of sale was duly executed; that the
mortgagor cannot complain il the
conditions he has chosen to insert in
the deed have been in fact complied
with. Childs VS.. Dolan, 5 Allen,
319; Cranston VS.. Crane, 81 Mass.
459; Hamilton VS.. Lubukee, 81 Ill.
Ais.
The decree appealed from is con-
firmed.