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

II
cation upon payment of debt and
a remedy for the payment itself,
cannot co-exist. Sheldon, Sec. 249
The latent equity was displaced by
express contract Or, in other
words, the equitable lien, if any ex-
listed, was lost by taking security.
Overton on Liens, Sec. 209;
Lien lost by taking security.
:. Berger VS.. Potter, 30 ILL.,, 66;
* Gilman VS.. Brown, Mason,
PA;
Williams VS.. Roberts, Ohio,
30;
Taking notes a waiver of a lien
for rent.
Hop Sing VS.. Kun On, 6 Haw.
1t is further urged that when
the Legislature by the Act of 1866
released the Commissioners of
Crown Lands from liability to pay
the loan, it extinguished the debt.
The Act was an acknowledgment
of accord and satisfaction. All that
the Court can now consider is the
legal operation of that Act The
motives of the legislature nor the
persons intended to be benefited
cannot control the plain language
of the law. 1t can hardly be
claimed that the Court could set
aside this Act on the ground 1t was
passed under mistake, yet in no
other manner can its effect be
avoided. There is no ambiguity
about the Act. 1t is a simple re-
lease and results to the benefit of
those liable secondarily as well as
the principal debtor.
Counsel for the plaintiff insists
that lien results from the pay
ment by the Government of certain
money to the use of defendants
ancestor. This may be a founda-
ton for suit for money had and
received, but it cannot constitute a
lien. The only hen which possibly
could be set up. would be the lien
of the mortgage under subrogation.
Approached from this standpoint,
all of the parcels of land IN the
mortgage must be charged pro
rata with the payment. An ac-
count of rents must also be taken,
If the Government can maintain
this suit in its own name, it must
be chargeable with rents which
have been received by the tenant
put into possession by them. But
it is again urged that the Govern.
ment dealt solely with the Crown
Commissioners. The latter took
up this mortgage and went into
possession. 1t is true they took ii
up with money loaned to them fol
the purpose, but that does not give
the lender any standing in Court
This consideration seems to have
additional force because the &C
count between the lender and Dor
rover is certainly settled"
Having, in my decision on the
demurrer C Haw. Rep. 579), gene
thoroughly into the question of Law
involved in this case, a brief deci
sion on the merits is all that is now
necessary.
/ find that the plaintiff hal
proved all the essential facts al
legged in it's petition.
While fully adhering to the view
taken by me on the demurrer tha
the doctrine of subrogation els no
to be applied in favor of one wht
has officiously and as a mere vol
unteer paid the debt of another, fol
which neither he nor his property
was answerable, and which he wa
under no obligation to pay" l an
of opinion that the people of thi
Kingdom as represented by it
Legislature had an interest in tn
Royal Domain sufficient to tak'
them out of the attitude of ''oH
cious volunteers
The preamble of the Act of Jan
uary Sd, 1865, entitled, can Act t.
relieve the Royal Domain from en-
cumbrances, and to render tn
same inalienable," recites that 9th
history of said lands shows tina
they were vested in the King TO
the purpose of maintaining tn
Royal state and dignity, and it i
therefore Instantaneous to tn
public interest that the said land
should be aiienated or the sal
Royal Domain diminished" state
correctly the position.
The people have an interest il
. maintaining the Sovereign in
state suitable to his condition, con
sistent with the traditions an,
means of this country, and it hav
ing been decided by the Suprem
Court and affirmed by the Legis
lature that the Royal Domain o
"Crown Lands" descended to tn
successor to the Royal office, an,
not to the personal heirs or devisee
of the Sovereign, it Is apparent tina
the people had an interest in then
to protect. For If the rents fror
, the Crown Lands were devoted t
the payment of the debts of tn
former Sovereign, or if they wer
5 sold for the same purpose, it woul
necessitate "a larger vote of tn
public funds for the prlvy purse.
Therefore, when the Legislator
5 by the resolution of July 1866 al
2 sumed the payment of the remain
e ing debts of the late King, it wa