The Hawaiian gazette., 1906-01-02
An ANSWER
CROSSCUTS
drom saturdays Advertlrerl

JOINT and several answer has been
fled hy defendants In the foreclosure
suit Of l.ahapa Ernstbcrgcr vs.. kim
Nahau and Nahau. Magoon and Light.
foot are attorneys for defendants, who
plead that the mortgage In question
was fully paid. They claim that Kina
Nahau Is possessed of an undivided
half interest in the land described in
the first paragraph of the bill, by vir
tue of a deed executed and delivered
by q. kalua Kaioipahia on March 81,
1904, admitting that when the deed
was executed the land was subject to
the mortgage set forth in the second
paragraph of the bill. They admit re-
fusal to pay any amount alleged to be
due in respect of promissory note ana
mortgage, denying that there remains
anything unpaid in respect thereof.
1t is further stated that Kina was
the aunt of Kaioipahia, who for many
years prior to his death was in feeble
health and nearly blind, and for
short time before his death was en-
tirely helpless and dependent upon the
nursing of his friends and relatives.
He made his home with Kina at Ho-
naunau, Kona, Hawaii, but for about
a year prior to his death had been
staying in Honolulu with Becky Kaa.
nohi, his niece.
Frequently in his lifetime he made
promises to Kina that she should have
his lands at death. There were feel
ings of great love and affection be-
tween them.
Three days prior to his death Kaioi-
pahia paid visit to Lahapa Ernst
berger, intending to stay a few days,
and became seriously ill so that he
could not be moved from Ernstberger s
house. Lahapa, it is declared, was not
related by ties of blood to Kaioipahia
and had no claim ON his affection or
bounty.
Defendants are informed and believe
that Lahapa, during the last illness of
Kaioipahia, frequently urged him to
convey to her all his lands Kaioipa-
hia, during brief intervals of CON
seriousness, at first steadfastly re-
fused to convey his lands to Lahapa.
but finally "being overcome by the
continued opportunities and coercion
of Lahapa, consented to convey por-
ton of his land to said Lahapa." A
deed of the land described in the
mortgage was accordingly executed,
Kaioipahia reserving to himself for
life the rents, issues and profits of the
lands The land conveyed was worth
$4,000 and the deed was executed with
the understanding and agreement on
the part of Lahapa that she would as
sumo the whole of the burden of the
mortgage, and apply the income from
the property to the payment of the
mortgage, or if the land was sold APP
ply the proceeds so far as necessary to
the same purpose.
The deed to Lahapa was dated
March 80, 1904, and about July 81,
1905, plaintiff and her husband, Joseph
Er1stberger, for the consideration of
$4,000 delivered to Fred. A. Luning
and his mother " decd of the same
property 1t is Lrther alleged that
Lahapa, to procure a release of the
mortgage, paid to W. X. Castle the
WHOLE of the principal and interest due
under the mortgage, "but with the in.
tention of defrauding these defend
ants and seeking to have the whole OF
said mortgage indebtedness made a
lien on the property of these defend
ants, said Lahapa secured from said
Castle an assignment of said mort
gage"
Defendants further show that the
value of the land conveyed to Kina by
G. Kalua Kaioipahia is of the value of
about five hundred dollars.
1t is prayed that defendants be dis
missed or otherwise that the court
decree that the deed to plaintiff is
void for want of consideration and for
duress and undue influence, and that
plaintiff be declared to be the trustee
of the $4,000 received from Luning for
payment of the mortgage, ETC., and the
balance to the heirs of Kaioipahia
And, if found that the deed is not
void, that it be decreed that the mort
gage be paid out of the proceeds of
the sale of Luning. Or, in case the
court shall decide not to grant the re-
lief above prayed for, that it shall de-
cree that the land of defendants shall
DE subject to payment of the mortgage
ir such proportion as the value of the
land of defendants shall bear to the
value of the lands conveyed to Luning.
SALE CONFIRMED.
Judge Robinson signed an order of
confirmation of sale in the suit of Will
liam o. Smith, trustee, VS.. The Pacific
Heights Electric Railway Co., Ltd, ct |
al. The sale was for $4,000 and the ex-
penses were $1977.30. The mortgage
debt was 800 ,ooO.0U commissioner 1
Simonton is directed to pay the net
proceeds of sale into court, to await |
the result of the appeal on the former
sale in the United States Supreme
Court, taken by G. G. Ballentyne and |
the Rapid Transit Co. If the decree
of the Hawaiian Supreme Court affirm
ing the voiding of the former sale is
sustained, then the money is to be paid
to w. o Smith, otherwise it shall be
paid in accordance with a covenant
between w. o. Smith, trustee, Cecil
Brown, F. NJ. Hatch, c. G. Ballentyne
and the Honolulu Rapid Transit &
Land Co., dated December IA, 1905.
PUBLIC CAUSES.
Time of respondent to answer in S.
Yamamoto s suit against A. J. Camp
bell, Treasurer of Hawaii, has been ex-
tended ten days by Judge De Bolt. 1t
is suit for mandamus to compel re-
spondent to issue pharmacist IS
license to petitioner.
Defendant in the escheat suit of
Territory of Hawaii VS.. Irene B. Corn
we'll has sixty days further wherein to