Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1904-04-20
Majority Reyerses
Judge LittIe's Ruling

Majority of the Supreme Court sus-
tains plaintiffs expections to Judge
Titles judgment for defendant In the
suit of L. X. Lalakea VS.. The Hilo Sug-
al Co., Ltd, Justice Perry writing the
opinion. Judgment Is set aside and a
new trial ordered. Justice Galbraith
dissents. Smith & Parsons for plain.
tin; Wise L. Ross for defendant.
Following is the SYLLABUS:
IAN unrecorded chattel mortgage is
not valid or binding to the detriment
Of third parties.
THE registry Of a chattel mortgag
not entitled to be recorded is a nullity.
Actual knowledge OF the existence
Of a chattel mortgage is not a substi-
tute for recording.
1T is prerequisite to the valid reg
istry Of a chattel mortgage that the
acknowledging officer endorse on such
mortgage certificate Of the fact Of
acknowledgment.
"A certificate that on day named
personally appeared before me Chan
Gloon and Sing Kee. known to me to
be the persons described In, and who
executed the foregoing instrument who
executed the same freely and voluntar-
lily and for the uses and purposes there
In set forth, does not state the fact OF
acknowledgment and is for that reason
insufficient and invalid.
Testimony Of the acknowledging Of
ficer to the effect that the parties did
In fact acknowledge before him the ex-
ecution of the instrument can not cure
the defect and is inadmissible to aid
the certificate and to support the valid
ity Of the registry and mortgage"
Say Galbraith, dissenting:
1T certainly could not have been the
intention of the Legislature to declare
an unrecorded mortgage void between
the parties or as between the parties
and others without interest in the prop
erty or between first and second
mortgage, the latter having notice Of
the first mortgage. The Legislators are
presumed to have known that the OBJ
ject Of recording instruments is to give
notice and that notice may be given
aside from the record and that the
notice given by one method is Just as
effective as the other and ought not to
be held, In the absence OF plain words
to that effect, to have intended by this
statute to make recording the exclusive
method of giving notice OF the exist
ence of chattel mortgages, etc. While
the statute is not happily worded | am
inclined to think that 1t was not in
tended to do more than is accomplished
by most statutes providing for the reg
istration OF written instruments, name
ly, to provide that the interest Of no
one In property should be prejudiced
by an unrecorded instrument of which
he had no actual notice."
A mortgage Of cane on a three-acrs
tract executed by Sing Kee and Chan
Gloon to w. ID. Schmidt to secure q
$3.50 note started the affair. Four
months later Chan Gloon. who had
bought out Sing Kee, gave Lalakea a
mortgage on his interest in the land
and on growing cane to secure $500
note. Ten months later Chan Choou
abandoned the premises and left the
Territory. Six months rent had then
become due and was unpaid. The own
er Of the land, Kapu, took possession,
claiming a forfeiture OF lease and ex-
ecuted lease to plaintiff for five years.
lalakea also claimed to have entered
and taken possession under his mort
gage. Without entering Schmidt fore
closed his mortgage by publication and
the Hilo Sugar Co. claimed to have
bought the cane at the sale under his
foreclosure. Present action was for
value OF cane so taken by defendant.