The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-10-05
OPINION OF THE COURT BY FREAR. J.
SEPTEMBER TERM, 1897.

OPINION OF THE COURT FREAR, J.
The appellant purchased certain premises for $500 and
mortgaged the his vendor portion of the
purchase price, namely $4,000 He afterwards executed the
deed question, in which he rected his purchase and
mortgage and that he had remaining in the premises only an
equity of redempto and conveyed his vendee for consd
of 900 all his right title and interest," either at law
equity the being his equity of redemption IN the
premises and covenaned that his said purchase he has
made suffered other further ncbrance OF SAID
premises than as hereinbefore noted"
The question whether the duty should be estimated upon
the consideration expressed in the deed, that is, $4,000
upon that plus the of the mortgage thai upon
$18OOO upon the former the duty would be So TOR each
81 OOO that 1884, the conended for by the appellant;
if the latter the duty would be 81 for each $1,000 that
2 the assessed by the Minister The statute (Sec
g. Ch 1O3 Laws of 1922 provides that in the of con
upon the sale of property real personal rights
therein the duty shall be assessed certain upon 1.-The
purchase consideration money therein expressed also Sec
90 Ch So, Laws of 1870 that where property is conveyed
subject mortgage the amount due such mortgage shall
be stated in the boy of the and duty shall be cac
lated and paid the amount due and the amount expressed
be paid In addition"
In opinion this latter provision of the does
apply this and the duty should be $24 under the prov
sion first above quoted, conended by the appellant
The deed purpors to only the equity of redemption
that only the property that remained in the after
he executed the mortgage What remained in the moragor
after he executed the subject the
Again. there evidently intention the Of the
legislature passing Section 20 above quoted that in all
where property which happens be subject to mortgage
conveyed the duty should be estimated upon both the consdera
ton and the of the mortgage debt without regard the
question whether the vendor the vendee the
debt The intention that the of the mortgage debt
should be considered In estimating the duty only when forms
part of the consideration for the conveyance It is the
de1ation that made the basis upon which the duty be
estimated This is clear from many provisions of the
See In re Nocd1ane ante and portions of the
there referred to- Section 20 itself question: provides
that the duty shall be calculated upon the amount due the
mortgage and the expressed to be paid an addio
thus showing that the due the mortgage be
dered only when it be paid by the vendee part the
consideration The words in the first part of this section
" where property is conveyed subject mortgage
intended to whre property conveyed be sub
ect mortgage to be paid by the vende where prop
ery which happens to be subject mortgage conveyed
though the mortgage is be paid by the vendor
In the present the vendee did the payment of
the mortgage debt He be compelled pay either by
his VENDOR the mortgagor by the morgage If default
should be made IN the of the mortgage debt the
interest thereon the could the the
note He could not maintain action the venee the
note Ii the mortgage should his remedy by foreclosure
he would be obliged the vendee all that the sold
for over the amount secured by the that is the value
OF what the vendee purchased and what the vendor sold
~ the value of the property that remained in the
after he executed the mortgage IF the vendee should sell his
property that the equity of redemption he would have
further interest the existence of the IF order
prevent foreclosure he should pay off the mortgage debt he
would do SO at his option part OF the consideration for
the land or because he under onrctua obligation
It, but for the that might lead him
other in order obtain further complete control of