The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-06-04

REVERSED
Supreme Court Is
Divided Once
Again.
Frear and Perry Agree
On Law Regarding
Mortgages.
GaIbraith Suggests Court Ought
to Leave Law.Making to
the Legislature.

By a majority opinion the Supreme
Court has reversed the Circuit Court
| in the action to quiet title Of Samuel c.
Allen VS.. George w. Lucas, Albert H.
Lucas, a minor by his guardian ad
Item, J. j. Dunno, and Thos. r. Lucas,
Jr., Lydia C. Lucas, Jr., and Norman
w. Lucas, minors, by their guardian
ad Item, E. NJ Watson. Chief Justice
Frear writes the opinion, Justice Perry
signing it with him. A dissenting opin-
A. Whiting. Holmes & Stanley and C.
F. Clemens conducted the case for
plaintiff, and E. NJ. Watson and j. ].
Dunno for defendants In it's opening
the opinion thus states the controversy:
This is a statutory action to quiet
title. 1t is brought by a mortgage
after default of the mortgagors, against
certain other persons, who, it is alleg-
ed. claim an estate or interest in the
cult Court ordered the complaint dis
missed and plaintiff to pay costs in
Guiding a fee of SIS to one of the guar
dams ad Item and of $50 to the other.
to which order the plaintiff executed
and now brings the case here by writ
of error
The principal point raised is that
mortgage has not such title or interest
as to enable him to bring an action of
this kind. Two leading theories of
mortgages are discussed by the court.
One is the common law theory which
regards the mortgage as what IT pur-
ports to be-a deed defeasible upon the
performance of a condition subsequent.
The title passes to the mortgage, who
is entitled to possession and may re-
cover it in ejectment, in the absence of
an agreement to the contrary, even be-
fore default by the mortgagor. After
default his title becomes absolute at
law and the mortgagor cannot even re-
deem. But equity after some centuries
stepped in and permitted the mortgagor
to redeem.
The other is the equitable theory,
which the court says is mostly of
statutory origin. There are no Hawai-
ian statutes nor Hawaiian judicial pre-
oedents requiring it's adoption here.
On the contrary. the presidents, so far
as they go, point the other way. There
has been no usage here that has gone
to the extent of showing that a mort
gagee has not sufficient title after de-
fault of the mortgagor to enable him
to protect himself against third par
ties.
Another question at issue was the
payment of fees to the guardians ad
Item of the minor defendants ordered
against the plaintiff. LAS to the merits
of the question of fees" the court says.
- a court of law has no authority in
the absence of statute to allow fees of
this kind. in the nature of counsel fees,
against a losing party. Such fees may
be allowed as necessary expenses in
probate out of the estates of the minors
themselves, and in some jurisdictions,
under statutes, by the court trying the
action. but not by that court in the alb
sence of statute and against the op-
posite party.
The writ is allowed, the judgment
and order below reversed and the case
reHanded to the Circuit Court for fur
Their proceedings consistent with this
opinion"
In the syllabus the law Of the ease is
thus declared:
"A mortgage has sufficient title or
interest after default by the mortgagor
to enable him to bring a statutory ac-
ton to quiet title against third parties.
"A court of law cannot, in the alb
senee of statute, allow fees, in the ma
ture of counsel fees, to guardians ad
Item to be paid by the opposite par
ties"
Justice GalbTaith maintains that the
Hawaiian statute is not so broad as the
majority states, and that the general
law requires that the plaintiff in the
action TO quiet title must hold the legal
title" Further along he says:
a good and sufficient reason in law
why a mortgage cannot, prior to fore
closure and sale. maintain the statu-