| Haw. | Dec 10, 1902
OPINION OF THE COURT BY
This is a hill in equity wherein the complainant avers that at a foreclosure sale ordered and had by the mortgagee in a certain mortgage under the power of sale contained therein and of the statutes applicable in such cases, he became the purchaser of the mortgaged premises, that all the requirements of the mortgage and of the law (detailing1; these- to a certain extent) were complied with, that the title to the mortgaged premises was duly perfected in him, that he is entitled to possession and made demand for the same upon the respondent, who- is the administratrix of the estate of the deceased mortgagor, and that the respondent refused to surrender possession. The prayer is for an order to' remove respondent and all persons claiming under her from the premises and for a writ of possession. To this drill the respondent demurred on the ground, among others, that the complainant has a plain, complete and adequate remedy at law and that a court of equity has no jurisdiction to grant the relief prayed for. The demurrer was by the lower court sustained upon the ground just mentioned
It seems clear that if the mortgage had been foreclosed by proceedings in equity and the sale ordered by the court and completed, equity would have jurisdiction, even on a subsequent and independent bill, to issue a writ of possession to remove the mortgagor or those holding under him and to put. the purchaser in possession; and from this it is argued for the complainant that the same relief will be granted in equity where the foreclosure sale- was, as in this case, not under a judicial decree, but under the power contained in the mortgage. We think otherwise. In the class of cases in which equity does issue writs of possession, the reason is that having already assumed jurisdiction for the purpose of foreclosing the mortgage it will retain jurisdiction to do complete justice between the parties, or, where an independent proceeding is brought, that it will make its former order effective and not compel the purchaser to resort to another and different court to secure a compliance with the decree. In this case, however, neither of these reasons can be invoked. Equity has not at any time had jurisdiction of the main subject nor has. it made any decree which it is now sought to enforce. The case presented by the. bill is simply that of a complainant who has the title to and right of possession of certain land and from whom possession is unlawfully withheld by another. For this wrong he has the ordinary remedy at law of an action of ejectment. The mere fact that his title and right of possession can be traced back through a mortgage and a foreclosure sale thereunder is not sufficient to give equity jurisdiction. The remedy at law is certainly plain and complete.
It is contended, however, that such remedy is not speedy and not adequate because, — and of this the court is asked to take judicial knowledge — there is a large accumulation of law cases undisposed of in the Circuit Court of the First Circuit and consequently an action of ejectment, if now instituted by this complainant, would not be heard for a long period of time, perhaps two V'ears. There Is no doubt that, upon the case being reached,
Tbe decree appealed from is affirmed.