The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-04-02

The mortgage contained an agreement to
sell to mortgage future crops not
growing on the premises at the
time the mortgage was executed. 1t
was Contended that sale and delivery
of the crop levied upon had not been
made as required by the agreement
Held, that as the crop was still stand
ing on the premises when the mort
gagee took possession it was covered
by the mortgage.
OPINION OF THE COURT BY CIRCUIT JUDGE
WHITING.
The plaintiff brought his action in
the District Court of Honolulu, to
replevy of defendent 166 bags of
paddy seized by the Marshal under
levy of an execution in the action of
Kan Loi vs.. Chong Kim Tai and her
husband, and recovered judgment
from which defendent appealed to
the Supreme Court upon the grounds
that the judgment is contrary to law
on the points of delivery-on the con
tract Of sale-on the question of pos
session of plaintiff; of the rights of
creditors on such contract and gen
orally on the law of the case.
The evidence shows that in May
or June, 1894, under duly recorded
chattel mortgage executed by one
Chong Kim Tai, married woman,
(such execution being approved and
joined in by her husband) the plain
tiff Ho Sun the mortgage took pos
session Of certain rice plantation at
Waikiki, Oahu, upon which at the
time OF entering into possession Of
the premises was a crop Of rice or
paddy not harvested. The mortgage
was overdue and the mortgagor was
in default. The possession was given
amicably by the mortgagor and Ho
Sun placed the mortgagor's husband
in possession as his agent and paid
him wages for his services and also
hired laborers and paid them, and
while in possession with such labor
ers harvested the crop, thrashed and
bagged it in bags of plaintiff, 154
being marked S. c., the mark of
plaintiffs factors Sing Chong & Co
and IL bags without mark. Before
this paddy was removed from the
premises, the Marshal made his
Loi against Chong Kim Tai, ct al.
In the action Of Kan Loi against
Chong Kim Tai and husband, June
Is, 1894, an attachment was issued
and dissolved before judgment,
which was rendered on June rs. 1894,
and execution was levied on July 2,
1894, on the paddy in question.
Prior to this levy, notice was given
on June 27, OF the possession taken
by Ho Sun by letter, viz:
Honolulu, H. l., June 81, 1894
e. G.. Hitchcock,
Marshal of the Hawn. Islds.
Sir: In Re the Mortgage from
Chong Kim Tai to Ho Sun, of plan
tation premises at Waikiki.
I respectfully inform you that Ho
property conveyed by said mortgage,
including the plantation, leases, crop,
implements, live stock and other
chattels heretofore in possession of
Chopg Kim Tai; and that said Ho
Sun proposes to devote said property
10 the payment Of said mortgage, as
erein provided. You are therefore
respectfully requested to refrain
from any and all acts, whether act
ing under executions against the
property of said Chong Kim Tai, or
otherwise in any manner conflicting
with the rights of possession and of
property under said mortgage, now
existing in Ho Sun.
Yours faithfully,
(s) G. w. Ashford,
Attorney for Ho Sun"
The evidence clearly shows an
open actual and notorious taking
possession of mortgaged property by
the mortgage under his mortgage
prior to the severing 'he crop from
the soil and bona tide delivery by
the mortgagor to the mortgage of
such property and actual possession
by the mortgage to satisfy the lien
aside by the execution creditor of the
mortgagor by the mere levy of the
execution. The execution creditor
could obtain no more rights than his
debtor possessed unless the trans
action was fraudulent or void. This
is not shown to be so. The debtors
(mortgagor's) rights Of possession
had ceased and the properly could
not be taken under the execution IN
less the lien of Ho Sun was first
satisfied.
The contention is made by defend
ant that by reason of the clause in
the mortgage Il hereby sell all |
paddy from my said rice plantation
to Ho Sun, said Ho Sun paying me |
the ruling market rate at the time of |
delivery until my said note is fully |
paid' the growing crop did not pass
to the mortgage. That this was an
executory contract Of sale of the |
crops contained in the mortgage, |
and that future crops were not sub |
ject to the mortgage and that only
when the crop was served and |
delivered by mortgagor could any
rights or lien attach on behalf of the /