The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-06-05
HUMPHREYS
REVERSED.
Supreme Court Is
Divided Once
Again.

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 litem, e. NJ. Watson. Chief Justice
Frear writes the opinion, Justice Perry
signing 1t with him. A dissenting opin-
ion is filed by Justice Galbraith. w
!, A. Whiting, Holmes & Stanley and c.
f. Clemens conducted the case for
plaintiff, and Il. NJ. Watson and j. J.
Dunno for defendants. In its opening
the opinion thus states the controversy;
| This is statutory action to quiet
title. 1t is brought by a mortgage
after default of the mortgagors, against
| certain other persons, who, 1t Is alleg-
| ed, claim an estate or interest in the
mortgaged land. on demurrer, the Cir
! cult Court ordered the complaint dis
! missed and plaintiff to pay costs in
Guiding a fee of S75 to one of the guar
dams ad Item and of $50 to the other,
to which order the plaintiff excepted
and now brings the case here by writ
of error"
The principal point raised is that a
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 1t pur-
ports to be-a deed defeasible upon the
performance of condition subsequent
IN o. w
is entitled to possession and may re-
cover 1t 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-
cedents 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
gage 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,
% 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
and in some Jurisdictions,
lnder statutes, by the court trying the
action, but not by that court in the alb
;ence of statute and against the op-
)osite party.
THE writ Is allowed, the judgment
md order below reversed and the case
emanded to the Circuit Court for fur
her proceedings consistent with this
opinion"
In the syllabus the law of the case Is
hus declared:
"A mortgage has sufficient title or
interest after default by the mortgagor
o enable him to bring statutory ac-
"a court of law cannot, in the abb
ence of statute, allow fees, in the ma
ure Of counsel fees, to guardians I'D
item to be paid by the opposite par
ies"
Justice Galbraith maintains that the
Hawaiian statute Is not so broad as the
majority states. and that "the general
aw requires that the plaintiff in the
ction to quiet title must hold the legal
ltle." Further along he says:
"A good and sufficient reason In law
Thy mortgage cannot, prior to fore
losure and sale. maintain the staru-
Dry action to quiet title Is that he does
OF hold the legal title to the land"
Regarding law and precedent in Ha-
'aii, he says:
while we have no statute governing
his question there Is not wanting here
ldicial development of the law along
he lines contended for by the plaintiff;
nd, 1t seems to me, that 1t Is only nee
Ssary to advance one more step in or
err to render a statute on the subject
ntirely superiluous. This step, as
Understand it, Is taken In the majority
pinion, namely, holding in effect that
mortgage conveys to the mortgage
lie legal title to the mortgaged prem
es."
He quotes the Hawaiian decisions in
ampbell VS.. Kamaiopili and Kaikaina-
lole VS.. Allen. and proceeds thus:
There is "a wide difference between Il
,sted interest in land and the legal
tie to land. The law of this ques-
On ought not, in my opinion. TO be
veloped further by judicial decisions
statute on the subject is desir-
lie the legislature and not the court
ould make it,
The dissenting Justice in conclusion
intends that there is a procedure OF
lg usage ample to protect and enforce
cry right of a mortgage after de-
ult, adding: mo satisfactory reason
shown why the plaintiff should not
low this settled procedure instead OF
with this statutory ae-