18 Haw. 179 | Haw. | 1907
OPINION OP THE COURT BY
This was a hill to foreclose a mortgage by the defendant Iiolt and his wife dated August 5, 1899, which purports to include 2-27 of certain lands at Waianae and Waialua in the County of Oahu. The controversy is in respect of these lands only, there being no question about the other lands covered by the mortgage. The Waialua Agricultural Company, Limited, in its answer and cross bill, claimed the same interest under a mortgage by Holt of Hay 16, 1898, foreclosure of which was sought by the cross bill. The answer of the defendant Colburn avers his ownership of the 2-27 interest in the land at Waialua as purchaser at a foreclosure sale April 28, 1904, decreed in a suit by Henry Smith, trustee under the will of R. W. Holt, for foreclosure of Holt’s mortgage of January 18, 1903. The answer of the defendant Lucas avers that as trustee for a daughter of the said Henry Smith he owns the 2-27 interest in the land at Waianae by conveyance from Van Giesen who bought defendant Holt’s 2-27 interest in the estate of R. W. Holt, deceased, at an
E o appearance having been made by Holt or his wife or either of the Yan Gdesens the bill and cross bill were ordered to be taken pro confesso as against them. The judge decreed a foreclosure sale declaring the Waialua Co.’s mortgage to be a valid first lien and the plaintiff’s mortgage to be a valid lien subject only to that of the Waialua Co. From this decree Colburn and Lucas appealed.
The mortgagor acquired this property as follows: 1-27 by purchase from his brother Owen J. Holt, Jr., the other 1-27 under the will of R. W. Holt as one of the heirs of Owen J. Holt deceased.
The appellants’ contention is that certain proceedings in equity, referred to in Haw. T. & Invest. Co. v. Barton, 16 Haw. 294, brought by R. W. Holt’s executor against his surviving partners for a partition sale of the partnership lands resulting in a deed by the executor and surviving partners conveying certain lands, including those now in controversy, to the executor “and his successors in trust for the use and benefit of the legatees named and referred to in the last will and testament of Robert W. Holt, deceased, forever” amounted to “a conversion of realty into personalty.” This claim is based upon the fact that the eight parcels of land conveyed by the executor and surviving partners to the executor for the sum of $14,570 were paid for to the extent only of $8,674.50 out of the decedent partner’s 1-3 share in the proceeds of the sale of all the partnership lands, the rest of the purchase money, $5,894.44, having been paid out of the funds of the decedent’s estate. It is “well settled,” says one of the appellants’ counsel in his brief, “that where realty is purchased with personalty belonging to the estate of a deceased person, such realty, for the purposes .of
There is no reason for regarding this land as personal property and no object to be gained thereby by any one concerned. By Hawaiian law the same persons who inherit real estate succeed also to the personal property. This land has invariably been treated as real estate, which in fact it is. The conveyance to the executor effected a partition of the decedent partner’s share of the partnership lands the sum paid being in the nature of owelty. The theory that under certain circumstances and for certain purposes partnership land or land purchased with money which otherwise would have gone to legatees or distrib-utees is to be treated as money is not applicable to the facts in this case.
The appellants further contend that the title under the trust deed did not pass to the heirs of the testator’s sons by operation of law upon the death of the sons but required a conveyance by the trustee. The will of R. "W. Holt gave an annuity of $800 to his widow to be paid to her by his executor, devised 1-4 of his estate to each of his three sons the income to be paid to them by the executor, on the death of each son devised 1-4 to his heirs and their assigns. By necessary implication the will required the executor to hold each son’s share during the life of the son, upon the death of whom his heirs took under the will and not by descent.
In a certain sense it was the executor and the surviving partners who, by their deed of November 22, 1862, created the trust therein expressed, but the deed was merely a method adopted by them for impressing upon the testator’s property, segregated from that of his partners, the trust created by the
These rulings dispose of the appellants’ claim that the record of the plaintiff’s mortgage does not charge them with notice that it includes the interests in the lands above mentioned because not devised by the will and to be regarded as personal property. The mortgage explicitly covers those interests in conveying, as it does, “Two undivided twenty-seventh parts or shares of all the real estate devised by the will of - R. W. Iiolt, deceased (the grandfather of said Mortgagor) or of which he died possessed, (the said above described interests or shares being the same conveyed to said Mortgagor by Deed of Owen J. Holt, Jr., dated August 5th, 1891, and recorded in the office of the Registrar of Conveyances in Honolulu in Liber 133, page 158), and also the interest or share of the said Mortgagor as inherited by him from the estate of his said father, Owen J. Holt, or from the estate of R. W. Holt, both of said interests or shares including the following described lands, to wit:” (Here follow descriptions of the Waialua and Waianae lands.)
It is claimed that the mortgage was not entitled to registry because the certificate of acknowledgment of the mortgagor’s wife does not comply with the statute that “it shall not be lawful to enter of record any release of dower” without the previous acknowledgment of the wife “apart from her husband that she had signed such release without compulsion, fear or restraint from her husband,” (R. L., Sec. 2361) in omitting the word “constraint.”
It is “the policy of the law to uphold certificates when substance is found.” Lalakea v. Hilo Sug. Co., 15 Haw. 573; Haw. T. & Invest. Co. v. Barton, 16 Haw. 300. See Merriam v. Harsen, 2 Barb. Ch. 323, in which the certificate omitted the 'word “freely” required by the statute, and Dennis v. Tarpenny, 20 Barb. 374, in which the certificate was defective in omitting the statutory word “private” before “examination,” also Gates v. Hester, 81 Ala. 357, 1 So. 850, with reference to the words “voluntarily” and “compulsion” used in the certificate instead of the statutory words “of her own free will and accord,” and “constraint” which were held to be synonymous with the statutory words “of her own free will and accord and without fear, ■constraints or threats on the part of her husband,” the court saying, “Compulsion and constraint are synonyms when used with reference to extrinsic power, force or influence as when ■exercised by one person on another.” We think that the certificate was sufficient to require registry although the mortgage would properly have been recorded even in the absence of any certificate of acknowledgment by the mortgagor’s wife.
The appellants’ final claim is that the judge’s decree which left the commissioner at liberty to sell the property together or in lots ought to have required him to sell first the lands concerning which there is no controversy. This would be an appropriate request for the appellants to make of the trial judge unless they ascertain that the commissioner will of his own 'volition take this course.
Decree appealed from affirmed.
