24 Haw. 285 | Haw. | 1918
QUARLES, J.
August 22, 1911, the respondent leased certain premises in Honolulu to one H. Mirikidani for a term of ten years at a rent reserved of $50 per month payable the first day
From the decree the respondent has appealed assigning a number of errors which we deem unnecessary to treat seriatim. The plaintiff introduced in evidence the record in a mortgage foreclosure suit instituted by her June 2, 1916, against said Mirikidani in which she obtained a decree of foreclosure, and after sale of the mortgaged property and application of the proceeds of the sale to the costs, expenses and mortgage debt, she was awarded a decree for a deficiency in the sum of $1696.60, and which was entered. Upon said deficiency decree an execution was issued but same was thereafter returned unsatisfied after which an alias execution issued on the deficiency decree and the same was levied upon the said leasehold interest which was sold at execution sale and purchased by said Smead who sold and assigned to the plaintiff.
One of the principal errors assigned and upon which others depend is that the decree of foreclosure mentioned Avas and is void for the reason that the amount of the mortgage debt Avas not definitely found or fixed therein. It is admitted that the court rendering the decree had jurisdiction of the subject-matter and of the parties. We have examined the decree and while it is not in proper
It is also contended by respondent that the execution under which the leasehold Avas sold was void and unauthorized and that an execution cannot legally issue upon a decree in equity. If this contention is correct the result would be that in every foreclosure case, Avhere the mortgagor obtains a decree for a deficiency remaining after exhausting his security, he would have to bring an action at law upon the deficiency decree before he could enforce
One of the errors assigned is that the plaintiff is not entitled to any reduction from rents, water and sewer rates that were in arrears by the Avithholding of the premises by respondent for the reason that the prayer of the bill did not ask for such relief. There was a general pray'er in the bill “that other relief be afforded the petitioner to which in equity she may be entitled.” There was no allegation in the bill as to the rental value of the demised premises but evidence showing the rental Avalué of the same to be $75 per month was introduced Avithout objection. Under all of the proven circumstances the rent reserved, Avhich was in arrears, and charges for water and sewer rates paid by respondent, were properly reduced by the rental value of the demised premises during the time they Avere withheld by respondent from the plaintiff. Equity having jurisdiction to relieve from a forfeiture for nonpayment of rent reserved and water and sewer rates the decree properly offset the rental value of the demised premises during the time they were withheld by the lessor from one who had purchased the leasehold at an execution sale and tendered the rent due.
One of the assignments of error is that the court refused to admit evidence of witnesses to prove that the respondent’s reputation for truth and veracity is good. There had been no attempt to impeach the respondent by showing that his reputation for truth and veracity was
We have examined the other assignments of error and find none of them sustained by the record and find no reversible error therein. '
The decree appealed from is affirmed.