The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-06-24
PROVED
TO ITS. HURT
II. E. Cooper Gives His
Side Of Mortgage
Dispute.

Henry E. Cooper, in his suit for fore
closure of mortgage against Island
Realty Co. and Joseph A. Gilman, has
| filed a separate replication to the an
swer of each respondent. He denies
| that at the date of the Island Realty
| Co.'s mortgage there was any incum-
brance on the property in the sum of
| $1,000 or any other sum, and alleges
, that the $1,000 due as taxes for 1900 did
not become lien until Sept. l. 1900.
He admits that the taxes from 1900 TO
1908, both inclusive, were paid by the
Island Realty Co This was in accord
ance with an agreement made at the
time of the execution of the mortgage
and defendant paid such taxes volun-
tarily. Between date of mortgage and
May IL, 1903 there We're six statements
of account and defendant always paid
the full amount of interest. never in
all that time intimating that 1t was
llOl liuDle loI tHe taNeS.
On November II, 1908, the defendant
company sent to plaintiff a purported
statement of account, which plaintiff
declined to accept. This account as
shown by exhibit contained two items
of $3.50 each for taxes of 1900 and 1901
respectively, which defendant debited
to plaintiff. Thereafter, the Island
Realty Co. being in default for taxes
for 1902 and 1903, suit was brought
against it therefor in the Honolulu Dis
trict Court, and on December II, 1908,
the company wrote to Mr.. Cooper noti-
flying him Of the suit against it, for
$2O05 taxes, saying:
1.-THE Island Realty Co., Ltd, has no
defense to said suit, nor is it able to
pay said taxes. AS the mortgage you
are liable to pay portion of said taxes
and you are therefore requested to pay
the same, and to take such other steps
as you may deem advisable for the pro-
lection of your interests in the matter"
Plaintiff answering this letter denied
his liability for taxes and after the suit
had gone to execution defendant paid
the taxes. Thereafter interest on de-
PENDANTS note from May IL to Nov. II,
1903, being unpaid, plaintiff thu tened
defendant with foreclosure proceedings,
whereupon defendant company wrote
to plaintiff a letter dated January 6,
1904, in which it claimed it did not owe
plaintiff $3.50 interest. Instead, it had
a claim of $4,000 for taxes paid by it for
the four years previous, which made
net charge of $780, plus interest there
on, against plaintiff. Defendant COM
pany therefore protested against the
threatened foreclosure proceedings, say
ing If plaintiff took such proceedings |
it would hold him liable for damages. |
The letter quoted the law providing |
that the payment by mortgagor of |
taxes on it's property shall be deemed |
to be a payment to the mortgage on
account of interest, or of principal and |
interest.
On May II, 1904, another instalment of
interest became due and defendant
company accepted a proposal by plain
tiff that it pay $3.50 at once in full set
Element of interest due to that date.
Defendant also agreed not to set up
any further claim for taxes heretofore
or thereafter to be assessed.
Plaintiff now says he is still willing to
accept the sum stated on the given I'M
derstanding if the payment was made
before the cause came on for trial.
Plaintiff, on information and belief,
alleges that defendant has not at any
time appended to its tax returns any
statement of the date of it's mortgage
he amount secured thereby or the name
Of the mortgage, and hence contends
that 1t cannot claim any exemption
from taxation on the property nor
charge plaintiff with the taxes.
1t Is alleged that the improvements
put on the land by the Island Realty
Co. have not only not increased its
value, but have decreased said value,
IN that the location and character of
the said property make it wholly I'M
suitable for building purposes at the
present time or at any time in the near
future, and that said improvements
nave untitled 1t for other uses"
Finally Mr.. Cooper denies the claims
IF defendants as 10 how the property
should be sold and respecting the terms
IF sale in case of foreclosure, saying
hat If the land was sold as they pro-
lose, for which the terms of the mort
gage give no authority, plaintiff would
le caused great and irreparable dam ,
lge,