The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-06-21

NORTCACOR
Supreme Court Settles
Their Relative
Rights.

The Supreme Court yesterday rem I
dered a decision which, when it was
first reported down town, created very
great interest and in some respects al
most CONSERVATION. 1t was decision
in the case of Samuel Noar, admins
traitor of the estate of Isaac Noar, VS..
C. Bosse. In this case the court held
that: I'm an action by mortgagor
to recover from the mortgage the sur
plus arising from a statutory fore
closure of a first mortgage. the tact
that third person holds a second
mortgage on the same premises which
has not been satisfied is no defense"
1t was at first supposed that TINS
decision shut out the rights of second
MORTGAGE altogether, but reading OF
the decision itself shows that this is
NOT so. The second mortgage was
not before the court in this case at all.
The court passed on only the respective
rights of the mortgagor and the first
mortgage to the surplus arising from
a statutory foreclosure. The rights OF
the second mortgage were not before
the court, nor did the court decide as
to the respective rights Of the mort
gagor and the second mortgage.
The opinion is written by Justice
wilder and is as follows:
| OPINION OF THE COURT BY
WILDER, J.
This was an action commenced IN
the district court and brought by the
representative of a deceased mortgagor
to recover the surplus money remain
ing in the hands of a mortgage aLter
a statutory foreclosure of first mort
gage. At the time of the foreclosure
sale there was second mortgage ous,
/ standing of which the mortgage had
notice The foreclosure sale TOOK pissoe
on January %. 1904, the mortgagor died
on August 4, 1905, and this ACTON Was
loonmenced on June a. 1906. The dis
Itrict court gave judgment for oeIenu.
ant and on appeal the circuit court
entered judgment for pialntln' from
which court defendant brings excep-
tions.
THE question to be decided is this, to
whom does the surplus belong as oe-
tween the mortgagor and the mortga-
gee with knowledge of second mon
gaeee and It is not, as claimed by de-
! PENDANT, to whom does the surplus pe-
long as between the mortgagor ana tne
second mortgage? Defendant couiu
have made that the question by orins-
q ing into this action by 1nterpleauel
the second mortgage. AS ne mas MOI
seen fit to do SO, in order 10 preVail he
nnst show a better right to the surplus
than the mortgagor
If the mortgagor is entitled TO Tie
surplus as against second mortgage
or course that would settle the ques'
ltion. But, for the purposes OF tiiiS
case, we will assume that, as between
the mortgagor and the second morlsd'
gee. the latter is entitled to the surplus
arising from a foreclosure OF the mrs.
mortgage The defendant makes h'
claim himself to the surplus money ou
contends that. because there was sec
Iond mortgage in existence at the tiiiis
Of the foreclosure sale, of which ne haC
notice, he is justified in refusing TO pay
plaintiff the money. With this propo
sition we can not agree. AS petWeei
the MORTGAGE and the mortgagor tii'
latter has the better right to the money
and the fact that a second mortgage
is entitled at his option TO claim 1t
no defense in this action because n
NAV never claim it, preferrlns 10 ie1'
,non the personal responsibility OF TN
lmortgagor and also upon other secu
. ritv. if any, included in the secoi,'
mortgage. which was not 1ncluoeo
the first mortgage. There is no ques
tion but that the first mortgagee
|. not entitled to retain this money nun
Golf and. in the absence OF cldln
for If nv the second mortgage IN I'M
Iaction. the mortgagor is entitled TO
II as against the first mortgage.
Tn American Mortgage Co. VS.. lhAei
70 90 fAla.l 5O7 it was held that j.
an action by a mortgagor TO FecoVe
5 from, a senior mortgage surplus
the nroceeds arising from the sale
the rnortgaged premises, the fact ina
a third person holds a second MOI
gage on the premises which mas NJ
been satisfied is no defense; for, tnoug
the second mortgage may MAINTAIN d
action against the defendant to nav
the surplus applied to his mortgage
IS is not compelled to do so, out ma
collect the entire debt from pldlh'ii
~ tho same effect are Truesdale VI
Sidfa s5 MINI. 315. and Itasca InVes'
ment Co. VS.. Dean, 81 Mimi. 500.
Our statute (R- L., Sec Zloo)' W.
viding that the surplus snail Dc pa,
= over to the "owner of the moftsase
property" is not applicable to TINS cas-
ID in the view we have taken or IT.
Exceptions overruled:
- g w, Ashford for plaint1ff.
G. II. Olson Holmes & StanleS
r. the brief) for defendant
III
or After the first of July no special os
AZ, 10 rao11irad to expf