The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-04-20
NEW TRIAL
IS ORDERED
Judge Little Reversed
by Supreme Court
Majority.

Plaintiffs exceptions to Judge Lit.
Ties Judgment for defendant in ths
suit of T. K. Lalakea VS.. the Hilo SUI
gar Co, Ltd, are sustained by Chief
Justice Frear and Justice Perry, the
latter writing the courts opinion The
judgment is set aside and new trial
ordered Justice Gaibraith dissents in
an opinion at length. Smith & Par
sons for plaintiff; Wise & Ross for de
fendant.
The trouble started with mortgage
of cane growing on three-acre tract,
executed by Sing Kee and Chan Gloon
to w. D. Schmidt to secure payment
of note of $3.50. Nearly four months
later Chan Choon, who had bought out
Sing Kee, gave Laiakea a mortgage on
his interest in the land and on the
growing cane as security for note for
5000. About ten months later still
Chan Gloon abandoned the premises
and left the Territory and has not been
heard of since by the lessons. Six
months rent had then become due and
unpaid Kapu, owner of the land, took
possession of the premises the follow
ing month, claiming a forfeiture of the
lease, and the same month executed a
lease to the plaintiff of the same land
for FIVE years from the FIRST of the
next month. Lalakea also claimed to
have entered and taken possession I'M
der his mortgage Schmidt without
entering foreclosed his mortgage by
publication of notice and the Hiio SUI
gar Co claimed to have bought the
cane at the sale under this foreclosure.
The present action is for the value
of the cane so taken by the defendant.
Judge Little's judgment for the de-
fendant, the IIilo Sugar Co., was based
wholly upon the view that the Schmidt
mortgage and the foreclosure proceed
ings Hereunder were valid and that the
defendant acquired title to the cane not
from the plaintiff but through the fore
closure sale.
The reasons why the Supreme Court
decides that the Judgment was not
right are sufficiently we'll revealed in
the followino syllabus of opinion:
AN uilrecorsied chattel mortgage IS
not valid or binding TO the detriment
of third parties.
THE registry of a cfattel mortgage
not entitled to be recorded is a nullity.
Actual knowledge of the existence
of a chattel mortgage is not sub
stitute for recording.
1T is prerequisite to the valid regis
try of a chattel mortgage that the
acknowledging officer endorse on such
mortgage a certificate of the fact of
acknowledgment.
"A certificate that on day named
personally appeared before me Chan
Choon and Sing Kee, known to me to
be the persons described in, and who
executed the foregoing instrument who
executed the same freely and volun-
tarily and for the uses and purposes
therein set forth, does not state the
fact OF acknowledgement 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.
Justice Galbraith concludes his dis
serlting opinion in the following words !:
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 a 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 it was not in-
tended TO do more than IS accomplished
by most statutes providing for the
registration of written instruments,
namely, to provide that the interest of
no one in property should be prejudiced
by an unrecorded instrument of which
he had no actual notice