11 Haw. 506 | Haw. | 1898
OPINION OF THE COURT BY
This is an action for $661.25 upon a bond executed August 19, 1897, in favor of Ered Harrison by Louis Marks as principal and J. A. Magoon as surety. The condition of the bond is as follows: “The condition of this obligation is such that whereas said E. Harrison claims that the sum of Six Hundred and Sixty-one 25-100 Dollars is due to him for rent of certain premises being No. 514 and 510 Port Street. And whereas said E. Harrison has begun distraint proceedings for the collection thereof upon the chattels in said premises and whereas the said L. Marks claims the said chattels as mortgagee in possession. Now therefore in case the said L. Marks shall pay or cause to be paid to the said E. Harrison all rent that said E. Harrison under the law and the circumstances of the case has a right to distrain for upon the said goods and chattels then this obligation shall be void otherwise to remain in full force and virtue.”
The judgment of the Circuit Court was based on several grounds, only one of which need be considered by us, namely, that the plaintiff had no right to distrain because the defendant Marks was a mortgagee in possession of the goods sought to be distrained.
Our statute permits distraint of the goods and chattels of the defaulting tenant only, not those also of a stranger found on the premises. Widemann v. Thomas, 10 Haw. 371. The right to distrain cannot be exercised as against a mortgagee -in possession under a recorded mortgage of the chattels in question. Wundenberg v. Campbell, 9 Haw. 207; Cartwright v. Widemann, 9 Haw. 692. The main question in this case is whether the defendant Marks was a mortgagee in possession of the chattels in question when the plaintiff attempted to distrain and when he took the bond which is the subject of this action. It is undisputed that the relation of landlord and tenant existed between th_ plaintiff and one E. A. Williams, who was conducting a furniture and undertaking business on the premises in question and that the amount of rent due on the date in question was as claimed.
The property on the demised premises, except a portion thereof which had been after-acquired in the course of business, belonged originally to C. E. Williams, father of E. A. Williams and had been sold by him to the said E. A. Williams and another son, H. H. Williams, and afterwards, so defendants claim, it had been sold to Mary E. Williams, wife of E. A. Williams. The plaintiff contends that there was no valid sale to Mary E. Williams. In this decision we consider the property as not belonging to her. There were three mortgages upon it, — two of
As to whether Marks took possession before the plaintiff attempted to distrain, there was testimony as follows: In the early p.°r; of August, 1897, Marks came to the conclusion that he ought to foreclose; on Thursday, August 5, defendant Magoon acting as attorney for Marks sent another attorney who was then with him to Williams’ place of business to take possession in the name of Marks; Williams asked for time to see his wife and with her went to Magoon’s office where a meeting with Marks was agreed upon for the next day, Friday; on Friday, the meeting was held and after ineffectual attempts to come to some other agreement, it was decided that the mortgages should be foreclosed, Magoon agreed to assign his mortgages to Marks, and Williams and his wife consented to Marks taking possession; Marks then asked Williams to take charge for him until the next morning, Saturday; on Saturday, Marks asked Williams to continue in charge under him on salary and Williams consented to do so; the same day Marks delivered to Williams and his wife a written notice at their place of business that he took possession under the three mortgages for breach of conditions; Marks also on that day or the following Monday sent his own book-keeper to take charge of the books, with a written notice to Williams to that effect and a request to Williams to render the book-keeper assistance; on Monday Magoon formally assigned the two earlier mortgages to Marks in pursuance of the agreement made on the previous Friday, and on the same day Marks advertised notice of foreclosure of the first mortgage in a newspaper; he also on the same day paid Williams $25, one week’s salary; the next day,
The Circuit Court found on all the evidence that “the possession of Marks was actual and sufficiently notorious to complete his title to the after-acquired property.” Regarding, as we must, this finding as in the nature of a finding of a jury, there was sufficient evidence to support it and it cannot be set aside. We cannot hold that a mortgagee cannot, as matter of law, under any circumstances retain the mortgagor to take charge for him. In the present case bearing in mind that the mortgages were recorded and that there is no suggestion whatever of fraud, we are of the opinion that the finding of the Circuit Court cannot be disturbed.
The exceptions are overruled.