The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-09-16

at public auction on the 9th day of
September, 1889. The fact that the
mortgage In the same advertise
ment, also gave notice that after the
expiration of three weeks the mort
gagged property would be advertised
for sale at public auction on the 9th
day of September, 1889, cannot IN
any way affect the notice of inten-
ton to foreclose. The statute fixes
three consecutive weeks as tie time
for advertising notice of intention to
foreclose, but is silent as to the num-
Der of times notice of sale shall be
published. Under this state of facts,
find that the mortgage has COM
piled with the statute in regard to
the required publications.
The next question is in regard to
the affidavit of foreclosure and sale.
The object of filing this affidavit can
only be, that it may appear of re-
cord that the requirements of the
statute has been complied with. The
statute does read .he (the mort
gagee) shall within thirty days
8 < & file a copy 3 < and
his affidavit setting forth his acts
< 3" There is similar provision
made for the filing of answers in
civil actions. Section HOG of the
Compiled Laws reads: 1T shall be
incumbent upon every defendant
served with process of summons as
hereinbefore provided, within the
time < & < to file with the clerk of
the Court an answer to the plaintiffs
demand = 3"
An answer is rarely if ever filed
by the party defendant, but is filed
by his or her attorney and is held to
be sufficient, if it is done for and on
behalf of the party defendant.
In this case the affidavit is made
by William R. Castle who deposes
and says, ''he is attorney for the
mortgage that on behalf of the
MORTGAGE = & = he did foreclose *
= did advertise notice of intention
to foreclose and of sale as required
by law 4 <" The affidavit sets
forth his acts in the premises fully
and particularly. 1t also appears
that the affidavit was filed IN the
Registrars Office on the 10th day of
September, 1889, the day after the
sale, and was therefore within the
thirty days required by law.
1 am of opinion that the affidavit
of William r. Castle attorney for
the mortgage is sufficient, and that
the requirement of the statute has
been complied with: If there was
or is any doubt as to the authority of
MIR. Castle, it is entirely removed by
the affidavit of William Dean, the
mortgage, filed in this case, record
ed in Registrars Office 9th JAN
uary, 1890, as follows:
In the matter of the foreclosure,
Kualaau to VIM. Dean.
'Oahu:ss. William Dean, being
duly sworn, deposes and says: That
he is the mortgage named in GER
tain mortgage made by Kualaau and
others to him, dated 29th day of
December, 1884, recorded Liber 92,
page 377, and that said mortgage
was foreclosed for default in payment
of interest; that William r. Castle
acted as his attorney in the matter
and attended to all of the business
in connection with said foreclosure;
that he is the attorney for all of the
mortgages and investments of said
William Dean, made by him, the
said William Dean, and attends to
collections of interest and foreclos-
ures for non-payments; and that he
verify believes that in all respects
said mortgage was duly foreclosed
in accordance with the law as set |
forth in the affidavit of foreclosure,
duly filed and recorded in Liber i
page And further deponent |
saith not. WILLIAM DEAN.
Subscribed and sworn to before
me this I'd day of January, 1890.
NELLIE NJ. LowREY,
(seaD Notary Public.
The mortgages deed prepared by |
petitioner does not conform to the |
affidavit of foreclosure, but that can
be rectifed, as the sale has not been
completed.
The plaintiff not only has all the
title of the mortgages, but has quit |
claim deeds from the mortgagors.
The bill is dismissed with costs.
G. L. Carter for petitioner; W. r.
Castle for defendant.
June 9Th, 1890.