The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-05-14
SUBMITTED APRIL /, 1897.

ton conveyance person
afterwards died Held that C ad
to be
of foreclosure and that AS grantee
promise c. from
time the mortgage
The facts ndisputed and substantially follows
One Kaipuahio executed mortgage of all his right title
and interest in certain parcels of land d. Toomey who
acting Grinbaum that time Kailpua-
hilo had to
wards died and he inherited all oneha of it. Afterwards
the mortgage debt having become DUE Kapuaho asked Ka
hewahewanu pay the then owing the mortgage
representing the time that the mortgage good and
valid mortgage all the property named therein and that
he danger of losing the property by foreclosure and
agreeing ACKNOWLEDGMENT the property subject to
life interest III himself Kahewahewanu relying upon this
promise and representation paid the amount due. Kaipua
ho executed the promised but just before
his death he executed without consideration of
the property fee the defendant Maria Maha who had
notice of the transaction between her ranor
The having died. the administrator of his
estate J. NJ Peenahee, brought bill in equity alleging the
above facts and praying for decree that he be subrogated to
the rights of the under the mortgage and have
first lien all the right title and interest that Kapuahilo
the land the paid by his decedent with in
teres foreclosure of the and sale of the
property decree signed in accordance with these pray
and the here appeal thereom by defendant
Maria Makiha.
Tt seems equitable reasonable and in harmony
the subject that the complainant should
ubrogaed rights of the under the crcum
above forth See Kapena Kdeeonalan Haw.
Cans Theme, n. Y. Detroit, &c. Co. Aspin0H
As Mich. 23S; Lockwood 4. Hdrsh 3 New. 1873; MIR
Berkshire, Ind 149 Morgan Z. Hdmnett % Wis. 80
Defendants counsel does appear dispute this HIS
is that since the purported to to the
only the right title and interest of the morgagor
(Which nothne and contained that would
cause the after acquired title the benefit OF the
mortgage, the complainant would gain nothing if he
subrOgated the rights of the morgagee But compliments
rely estoppe by deed arising from the
language the mortgage of the but upon
esoppe ia pals arising directly in favor OF the complain
ants decedent from the and representations made to
him by the the time the mortgage paid, and
particularly from the mOgagor representation that the
valid lien the land and that he danger
the land by foreclosure and his promise that he
in the land said decedent that is
SUBSTANTIALLY the land should be applied
said decedent for the advanced If the
would be esopped by his subsequent conduct to-
wards compliments deceden from setting up that the mort
gage was nugaory because he had title at the time
executed his grantee the defendant Maria Makha, with
ce would also be estOpped 1t seems to US that the mort
would be estopped under the circumstances No
has been brought attention in which mortgagor
has been held stopped subsequent conduct
the particular defense of title at the date of the
mortgage but there analogous IN which somewhat
similar subsequent have been held the
orgagor setting up other defenses such fraud usury
payment and failure of consideration. See Smith Merton,
80 ILL., $50; Scott Sader 50 Pa st. 211 Lesley John
son, Barb $780, Wilcor HoCeH, A n. Y. 39S; Bush
D. Cushnon n. j. Eq 131. Compliments decedent paid
the mortgage debt the of the mortgagor and the
belief induced by him that the conveyed good
title The his grantee with notice should not be
permitted contrary prejudice of the
relied the representation the administrator of his
The decree appealed from affirmed with costs, and the
case remanded the Circuit Judge for such further
ceedings may be proper
Kinnev cf BallOu, for complainant.
4 HugnDhreus. for defendants.