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

release the same. That on the 14th
day OF April, 1890, the petitioner did
tender the sum Of $757.5 the full
amount then due to said defendant,
and demanded that said note and
mortgage be cancelled; that defend
ant refused 70 accept said amount or
to cancel said note and mortgage.
And the petitioner prays:
First. That an account may be
taken of what, If anything, is due
the defendant for principal and in
terest on the said note and mortgage.
Second. That your petitioner may
be permitted to redeem the said
mortgaged premises, your petitioner
being ready and willing and hereby
offering to pay what, If anything.
shall appear to remain due in respect
to the principal and interest on said
note and mortgage.
Third. That said defendant may
be decreed to cancel and release the
said note, mortgage and premises,
and make, execute and deliver to Pc
titioner lawful cancellation and
release thereof ready to 60 of record,
and may deliver over to your petit
toner all deeds and writings in his
custody or power relating to the said
mortgaged premises.
Fourth. That your petitioner may
have such further and other relief in
the premises as the nature of the
case shall require, and to the Court
shall seem meet, with his costs.
The answer admits all the aver
ments excepting that Kualaau, Ma
holowaa and j. X. Pae assigned and
quit claimed unto the petitioner the
said premises, and says that de-
PENDANT has no information suffi-
cient to form a belief as to the mat
ter. And for further and separate
defense to the matters and things
set forth in the complaint says, that
on account of the non-payment OF
interest due upon the mortgage re-
ferred to in the petition he caused
the said mortgage to be foreclosed
by sale at public auction as pres
cribed by law: that said sale took
place during the month of Septem-
Der, 1889, at which sale the petit
toner became the purchaser for the
sum of $500; that an affidavit Of
foreclosure was fled and a deed
upon such foreclosure was prepared
by said petitioner, and that no part
of said sum of $500 has yet been
paid to said defendant. And further
shows that all the papers and instru
ments relative to said mortgage and
of said foreclosure are now in the
hands of the petitioner and prays
that the same may be produced upon
the hearing.
The petitioner files q formal repli-
cation.
The petitioner claims, that the
of the statute have not
been complied with in regard to
the notice Of foreclosure and sale.
And further that the affidavit
of sale should have been made
by the mortgage and not by
William r. Castle as attorney
for mortgagee; and therefore that
the foreclosure sale is void and that
he is entitled to the equity of re-
demption under his deeds from Kua-
laau, Naholowaa and j. K. Pae,
which are dated subsequently to
date of mortgage sale, one being
dated 25th November, 1889, and one
18th of April, 1890.
The powers of sale contained in
the mortgage read: But il default
shall be made said mort
gagee, his heirs, executors, admins
traitors and assigns are hereby fully
authorized and empowered to sell
said premises or any part thereof
at public auction on three weeks
advertisement, as provided by law
(Act, 1874"
The notice of foreclosure reads as
follows:
Mortgagee's notice of foreclo-
sure.
In accordance with the provi-
sions of certain mortgage made by
Kualaau, K, OF Waikiki, Maui, and
Naholowaa, w, and j. X. Pae, her
husband, of Honolulu, Oahu, to VIM.
Dean of Honolulu, Oahu, dated De-
cember 18th, 1884, recorded in Liber
80, pages 377 and 1878; notice is here
by given that the mortgage intends
to foreclose the same for condition
broken, to wit: non-payment OF IN
terest.
{" Notice is likewise given that at
ter the expiration of three weeks
from the date of this notice, the
property conveyed by said mort
gage will be advertised for sale at
pnblic auction, at the auction rooms
of Jas. f. Morgan in Honolulu, ON
Monday, the 9th day of September,
1889. at IL o'clock noon of said day.
" Further particulars can be had
of w. II. Castle.
dated Honolulu, August Ii, 1889.
WIN. DEAN, Mortgagee.
1.-The premises covered by said
mortgage consist of ALI that GER
tain tract or parcel of land situate
in Waikiki, Maui, more particularly
described in r. p. 6066, L. G. A.
245S to Kawaiohia, containing an
area of 3 26-10O acres which said
mortgagors own in fee simple
The statute reads:
When a power OF sale is con-
tanned in a mortgage, the mort
gage, or any person having his es-