The Hawaiian gazette., 1890-08-26

said bill Of complaint alleged, anC
, that judgments were rendered II
said actions as therein set forth;
9th. And these defendants fur
Their answering say, that the sai6
sum of Se7,0OO is not chargeablC
upon the premises in said bill Of
complaint set forth as in said bill
of complaint alleged in that, tn,
same WAS assumed by the Ha-
wauan Government by resolution
of the Legislature approved the
9th day of July, 1866; and that no
hen IN equity exists in favor of
complainant in the premises,
I Wherefore they pray to be DIS,
missed hence with their costs"
Messrs, +, NJ. Hatch and c.
Brown for respondents say:
Il. 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
,, 1868.
The Legislature was not acting
under eompulsion to protect any
existing title in the Government,
therefore the doctrine of subroga-
ton does not apply.
See Sheldon ON SEGREGATION,
See. II.
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, So Penn. st.
r. 400;
''Unger vs.. Letter, 80 Ohio ct,
21O;
Sanford VS.. MCLEAN, Paige, n.
Y. III;
234;
Woods VS.. Nilsson, IL Ill 21S.
"hitehell VS.. Mudgett, 81 Mich.
50;
Moody VS.. Moody, IS Me. l55;
''Mosiers APP. 90 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. $50.
1.-The Hawaiian Government was
not secondarily liable for the debt
secured by the mortgage, nor in
any way liable, it cannot therefore
claim the right of subrogatlon.
..Bispham's Principles of Equity,
Sec. 335 and authorities there
cited.
.'See also Sec $50.
II There was no mistake. The
mortgage i'll question was upon two
Crown lands, Paumalu and Pupu-
kea, as well as Honolulu Hale.
The mortgage was not then due.
The mOrtgagee could not be COM
PEELED to realease any part of his
security. There was no other
method in which these two Crown
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.
% The most that can be said is
that IN carrying out the law bene-
lit has incidentally resulted to
others. Suppose there had been
sureties upon this note? The pay
ment by the Crown Commissioners
would have been & benefit to them.
Could they be held to contribute?
The private estate had been ex-
hausted when this mortgage was
taken up. There is no evidence
that there was any estate available
for the administrators to dispose of.
The Connecticut cases which
have been cited of the payment OF
money to another under mistake
are not at all in point. because the
money had to be applied as it was
TO carry out the Act.
The transaction was simply a
loan by the Government to the
Crown Commissioners. There was
no intention to keep alive the mort
cages which were paid by the loan.
The contrary is the fact. The
money was advanced for the pur-
pose OF extInguishing the mort
cages. They cannot be kept alive
by operation OF law for the benefit