The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-07-26
MORTGAGES
FORECLOSEO.
Island Realty Co.
Neglected a
Proviso.

Judge Gear found defendants in de-
fault in the mortgage foreclosure case
of Henry Il. Cooper VS.. Island Realty
Co., Ltd, and j. A. Gilman. The bal
| ance of principal due on the mortgage
was $65, 900, and $4,000 interest was
claimed to be in arrears. Defendants
admitted the statement of interest to
be correct, but claimed an offset in the
amount of taxes paid by them. The
court sustained defendants objection to
the pleading of an oral agreement that
the Island Realty Co. was to pay all
taxes and give complainant six per
cent. net interest. Defendants set up
the statute which says: THE mort
gagor of any property shall, in respect
of such property, be liable to taxation
only on the difference between the
whole value of the property mortgaged
and the amount of money owing on the
mortgage of the property" and, after
provision that the facts relating to the
mortgage shall be appended to the
mortgagor's assessment return: I'm re-
spect of the amount of money secured
by such mortgage he shall pay the tax
thereon, which payment shall be deem
ed to be a payment made by the mort
gagor to the MORTGAGE on account of
interest, or of principal and interest as
the case may be, and all moneys so paid
by mortgagor shall be allowed for in
the account between the mortgagor and
MORTGAGE"
The court finds that the defendants
are not entitled to the benefit of these
provisions because they did not file
the statement in their assessment re-
turns which the statute requires. 1t
adjudges defendants in default of pay
ment as alleged and states that de-
cree of foreclosure will be signed.
Regarding the second mortgage on the
property set up by defendant Gilman,
the court finds that he is entitled to
the sum of 21,524.7S under said second
mortgage, and that in case thei mort
gagged premises are sold for more than
enough to satisfy the first mortgage
with costs the decree should provide for
the payment of the surplus on the sec
ond mortgage,
The mortgages are allowed to bid at
the sale.
If defendants pay into court the full
amount of interest and costs to date,
no order of foreclosure will be made.
The court denies the application of
the defendants 10 nave tiie iaiiu SOU III
docks or parcels as III any event II
would seem that the ohly supuiVisiohs
Whlch could De recognized are liiose SCI
out in the mortgage.
The court declares it has no authority
IN order a sale on credit under fore
orosr,a and tberefore will NOT Grant the
nra var of defendants in this regard
KINNEY McCIanaban & Conner for
comnIainant. Castle G. Wilmington for
rasnondant
TOO HEAVILY LOADED.
S. f. Chillingworth, deputy sheriff,
has made return of execution for $19l0.23
in the case of w. O. Smith ct al, trus-
tees of Gear, Lansing & Co., VS.. John
D. Holt Jr, as wholly unsatisfied. The
property levied on consisted of 20 I'M
divided interest in the estate and effects
of owen j. Holt, 2-27 undivided interest
in the estate of r. w. Holt comprising
interest or share in lands stated, ag
gregating nearly $4,000 acres, and land
at foot of Punchbowl street, Honolulu.
Tho yyara Suhiact IN S1b 0OO in