The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-05-07

shall be efectual unless such certificate in writing
shall be recorded within thirty days next after such entry
made"
Sec. 1879. Such possession obtained in either of the two
modes above described being continued for the of year
shall forever toreclose the right of redemption
The defendant Bon claims that will decree specific
performance where the title doubtful; that the purchaser
entitled to marketable title and that doubtful such
to expose the vendee litigation. Numerous cited
by counsel but deem necessary here cite only Peterson
a. Lazarus, Haw 1885, where the says Specific per-
Torrance of agreement real never enforced
unless the satisfied that good title offered the
vendee"
If the foreclosure of the Spring mortgage not good or
complete then the plaintiff Buttereld is entitled decree
or judgment.
The certificate entry claimed be fatally defective as
1t does not state the hour and minute of the day entry
We of opinion that time" used in the statute Civil
Laws Sec 1877, SUPRA does the hour and minute OF
the entry but the day date of entry. This appears the
meaning as used in certificates of entry Maine New Ham
shire and Massachusetts, Hoacdrd Hardy IS n H. 49,
Freeman a. Arood so Me 473 Fullr RUSSELL Gray 1913
The purpose of the entry give rnortgagor and
others interested that the equity of redemption will be exn
guised unless the debt is paid and the Of the mortgage
are fulfilled. Smif .: Wendell. Cusl 357
The object to fix the time which the term of foreclosure
shall commence that the know when the year
commences beyond which his right of redemption will cease
(Smt WENDELL supra and the recording of the certificate
full and authoritative notice. all persons of the fact and
date of the mortgages peacebe and of and
purpose OF it. Bennett Cona, 10 Cush 1911; Fletcher
cary 103 Mass AIS; Jones Mortgages Sec 1916; Ellis a.
Drake, Allen 1853 The limitation of year commences
after the entry has been made and possession acquired for
OF
not take notice of fractional parts of day. the continuance of
possession the day following that of entry Jones'
Mortgages Sec 1862; Thompson Vinon, 121 Mass 1879;
Fuller RUSSELL Gray 1913. The Hawaiian statute of fore
closure by peaceabe entry and possession substantially the
same as the statutes of Maine New Hampshire and Maachu
SETS We have examined in reports of those
states but have found where the hour and the
day OF entry are 1t out the cerfcae but the day date
merely is set forth The setting forth the date complies with
the statute which requires the time of entry be in the GER
ifcate
10 randm and
has bearing on the question of peaceabe and nopposed
entry made in the night time it would be OPEN The
law however silent to whether the entry may be made
day night 1t is sufficient if the certificate shows peaceabe
entry in the presence of witnesses nder statutes provd
ing for the foreclosure of mortgage by open and peaceabe
try the morgaged premises and possession thereof continued
eaceaby Tor three years. entry peaceabe if opposed
by the mortgagor any claiming the premises
clenty open made in the presence of competent wit
whose certificate thereof sworn to and duly recorded
Thompson Kenyon, 100 Mass 1OS This point was raised
in Ellis Drake Allen 163 but overrued the saying
that the tact that the entry made less public
that the same attended by circumstances adapted for
ceament Importance the certificate of entry
duly to and recorded This registered certificate fur
nlses ample means to guard against surprise conceament
such record must exist three years lacking DAYS before
foreclosure take effect"
The certificate of entry is in compliance the law the
foreclosure complete and the equity of redemption barred
and the title in Butteeld is good if there breach
condition of the mortgage.
Bon claims that Butered does and produce no evidence
the breach by the Spring of the condition insure
that being the breach of condition which gave the mortgage
the right to enter and foreclose.
This might be answered by simply referring the certificate
Of entry which of itself is evidence of all facts therein stated
necessary to the foreclosure A the facts necessary to the
foreclosure must appear in the certificate which only
proper evidence of them The certificate however is not con
elusive evidence that there has been breach of the condition
OF the mortgage Jones Mortgages, Sec. 1860: Peee
Case, II Gray AIS
Assuming fact that there breach of the condition
to insure then the title of Buttered good and such mar
ketabe title that the vendee must accept But if called
upon decide whether was breach of the condition to
insure then the agreed statement of facts should be dismissed
Tor that IS fact in dispute and not called on to pass
upon evidence but upon the law applied facts agreed The
parties must agree this fact produce their proofs
IN proper case before court in equity If there
preach OF the condition to insure then the title of Buerfed is
detective and the vendee be compelled complete the
purchase
Every purchaser OF real estate is entitled to marketable
te tree from membranes and defects marketable title
that free from reasonable doubt There is
ouot When there uncertainty fact appearing
e course OF Its deduction and the doubt be such
affects the value OF the land will interfere with IFS sale
purchaser IS not to be compelled to take property the possession