The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-11-07
FORECLOSURE CASE
ANSWER FILED

Henry E. Highton and G W. Ash
i ford, counsel for appeuees. file a petit
ton for hearing of the case Of Koolau
Male ct al. VS.. JOS. O. Carter ct al,
concluding as follows:
We submit that Cooper vs.. Island
Realty Co, 10 Hawaii g. and Desky
VS.. Booth, Idem SOC do not sustain the
conclusion that, in the case under dis
cussion, the mortgage. N selling the
property as a whole, was not disre-
gardful of the rights of the minors In
those cases, on showing OF fact, the dis
erection of the Chancellor was exercised.
Here, a mortgage, not invoking judi
cial action, but selling under a power
and bent upon the acquisition Of the
land for a corporation, of which he
was the substantial owner. as against
the interests of the minor heirs and in
the face of the law already quoted,
exercised his own discretion for his own
interest. and, though a trustee, pur-
chased property worth S16.000.00 for So
500 90. On this ground alone, it may
well be that the foreclosure should not
be set aside, but the fact raises an
equity, connected with other and more
important grounds. that, if our idea
of the law is correct. should be used
for the benefit of the minors and not
of the corporation appellee.
THE inadequacy of the price obtained
for the property, S650O.00 less than its
value, standing by itself, might not
compel the annullment of the fore
closure, but when this additional value
is absorbed by the mortgage to his
own advantage and to the detriment
of minor heirs we contend that the
other equities of the bill are greatly
strengthened.
In respect tc the alleged entry on
the premises for the purpose of fore
closure. making no further allusion to
the other points connected with the
entry and the affidavit discussed in the
briefs and in the oral argument, but
merely referring to them. we claim that
the bill specifically denies that there
was any entry made. Such a denial
was necessarily inserted according to
information and belief.
1.-The bill sets forth the certificate
of Fl. H. Hanakahi and S. w. Spencer
to the effect that C. S. Dole entered
and took possession, alleges that the
certificate was untrue, that the entry
was not made and the possession not
taken, for any purpose or at ALL and
then proceeds to aIIege. in that behalf
that the said compliments allege that
the said Samuel G. Allen, either per-
sonalIy. or through any agent, duly
constituted, or acting as said agent,
never entered upon or took possession
of said premises
1--WE can not understand how, in
bill in equity. allegations that thee
was no entry or possession taken could
be more explicit or complete. The GER
tificate and affidavit We're on file ana,
for the purposes of this branch of the
argument. may be assumed, in them
selves, to have been prima facie suf-
ficient. The opinion recognizes this
fact, in considering the question as 20
whether the remedy at law. that IS in
the action of ejectment would be suffi-
cient, if the record in the Registrars
office should be contradicted on the
proofs, as it has been in the bill; The
predicate for this proof, it appears to
Us, could not be more clearly laid