The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-06-24

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 a lien until Sept. 1. 1900
He admits that the taxes from 1900 to
1903, 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-
tariIy. Between date of mortgage and
May II, 1903, there We're six statements
of account and defendant always paid
the full amount of interest, never in
all that time intimating that it was
not liable for the taxes.
On November II, 1903, the defendant
| company sent to plaintiff 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 Il, 1908.
flying him of the suit against it, for
| $2OO5 taxes, saying:
'The Island Realty Co., Ltd, has no
| defense to said suit, nor is it able to
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 II to Nov. II,
| 1903, being unpaid, plaintiff threatened
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
claim of $4,000 for taxes paid by it for
| the four years previous, which made
| net charge of $3.50, 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 a 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 $3250 at once in full set
tlement of interest due to that date.
Defendant also agreed not to set up
any further claim for taxes Heretofore
| assessed or thereafter to be assessed.
Plaintiff nows says he is still willing to
accept the sum stated on the given I'M
Outstanding 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 its mortgage, |
the amount secured thereby or the name
of the mortgage, and hence contends |
that it 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 it's |
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 |
have untitled it for other uses"
Finally, Mr.. Cooper denies the claims |
of defendants as to how the property |
should be sold and respecting the terms |
of sale in case of foreclosure, saying |
that if the land was sold as they pro- |
pose, for which the terms of the mort |
gage give no authority, plaintiff would |
be caused great and irreparable dam |
age.