7 Haw. 138 | Haw. | 1887
Lead Opinion
Decision of
Appealed From.
The complainants, Ating (otherwise known as Atini and Akini), Alang and Ho Look, co-partners under the name, style and firm of Hop Sing Company, allege that on the 16th of August, 1881, the defendant McGrew demised to the complainant Ating certain rice lands and fishing rights at Kalawao, in the district of Ewa, for a term of six years. That on the 13th of August, 1883, the complainant Ating assigned said-lease and premises to the defendant Kam On, who is still in occupation as servant to the defendant McGrew. That on the 11th October, 1883, the defendant Kam On assigned the said
The bill prays that an account be taken of the rent due, and upon payment thereof the complainants be ■ decreed to have possession of the premises ; or that an account be taken of what is due in respect of said mortgage, and that on default in payment the premises maybe sold, and the usual order in foreclosure suits and for general relief.
The defendant Kam On failed to answer, and the bill was taken pro confesso as against him.
The defendant McGrew by his answer admits the making of the lease and the assignment of the mortgage to the com
At the hearing the following documentary evidence was introduced by the complainants:
Lease, J. S. McGrew to Ating. (Exhibit A).
Assignment of same to Kam On. (Exhibit D.)
Assignment of partnership interest, Ho Hang to Kam On. (Exhibit G.)
Mortgage, Kam On to Ho Yeng. (Exhibit B.)
Transfer of mortgage, Ho Yeng to complainants. (Exhibit E.)
The following is a translation of the mortgage: “I, Kam Ona (ch.), of Kalawao, Ewa, Island of Oahu, bind over (or mortgage) all my leased lands described in an instrument executed Dec. 4, ’82, and also in an instrument executed Aug. 13. ’83, together with all the houses, pigs, chickens, ducks, horses, cattle and rice now growing upon said leased lands ; also all the leases and deeds (before) in possession of Ho Yeng by way of mortgage as security that I pay him what I owe him, to wit: the sum of $1000, for the period of one year from Oct. 11, ’83, to Oct. 10, ’84, with interest one per cent, per month. And I bind myself to pay said principal of $1000, with the interest, $120, out of all the rice on said lands, that is, out of all the present rice crop now growing, which is under mortgage; also, that I deliver said rice to Ho Yeng till the end of the year above mentioned without selling the same to anyone else until my debt to Ho Yeng shall have been paid. In case that I sell the rice to anyone else, Ho Yeng, his heirs and assigns, are hereby authorized, according to law, to seize upon the rice wrongfully disposed of by me in contravention of the provisions of this instrument. Further, if at the end of the period of this mortgage deed, my debt shall not have been satisfied, said Ho Yeng is hereby authorized to dispose of the remaining terms of lease, as well as all other property enumerated in said instruments in satisfaction of my said debt to him. Provided, that if I truly pay the same in the specified time, this instrument shall be void and become of no effect.”
The defendant McGrew introduced in evidence a lease, dated the 24th March, 1885, whereby^ he demised to the defendant Kam On the premises comprised in the former lease for a term of six years from the 16th day of August, 1887, (the date of the expiration of such former lease).
On this lease this deed is endorsed. “Know all men by these presents that the foregoing indenture of lease made by and between John S. McGrew of the one part and Kam On of the other part, and the term therein granted, is hereby canceled and made void for non-payment of rent, and possession is hereby restored to the lessor, without prejudice, however, against any collection by distress or otherwise of all rents now unpaid and owing from the within named Kam On to said John S. McGrew by virtue of and under the lease of -and term in the same premises granted to Ating, dated August 16, 1881, and by said Ating assigned to the said Kam On, and the last mentioned lease ; and the terms thereby granted are for the same reasons and consideration hereby canceled and made void. In witness whereof the said parties have hereto set their hands and seals, this 12th day of July, A. D. 1886.
“Kam On, [Seal].
“John S. McGeew, [Seal].
“Acknowledged before W. A. Whiting, July 12, 1886.”
The defendant McGrew claimed that by virtue of this last mentioned deed, he was entitled to the possession of the demised premises against the complainants, either as a purchaser for value, without notice of the mortgage, or as landlord having entered for a forfeiture by non-payment of rent. He also claimed that the complainants ought not, as against him, recover
I am of opinion that the mortgage having been duly recorded, the defendant McGrew must be held to have had notice thereof.
I am also of opinion that.the so-called surrender of the 12th day of July, 1886, is an assignment of the defendant Kam On’s equity of redemption in the lands comprised in the lease, and consequently that the defendant McGrew holds the same subject to the mortgage; and that the crop harvested since the commencement of this suit, and the subject of the interlocutory injunction granted herein, is also subject to the mortgage.
I am also of opinion that the mortgage does not cover advances made subsequent to the 1st day of October, 1884, but that the defendant McGrew is not. entitled to have the amounts received by Ho Yeng subsequent to that date, from the sales of rice, applied in satisfaction of the mortgage debt.
Being therefore of opinion that the defendant McGrew cannot be considered to be in possession under the alleged forfeiture for non-payment of rent, the question as to whether a sufficient tender of or offer to pay the amount alleged to be due, does not arise.
I therefore find that the complainants are entitled to relief under their bill, and order and adjudge as follows:
That an account be taken of what was due to Ho Yeng on account of principal and interest accrued by virtue of the said mortgage, on the 1st day of October, 1884, and that the said defendant Kam On be decreed to pay the same to the complainants with interest thereon at the rate of nine per cent, per annum, up to the time of taking such account, and that the said Kam On do pay the amount found to be due within seven days from the date of the confirmation of the master’s report, and in default of such payment, the right or equity of redemption of all parties in the premises comprised in said mortgage
I reserve further direction and costs: parties to be at liberty to apply as they may be advised.
Opinion of the Court, by Judd, C.J.
Having heard the arguments of counsel and examined the pleadings in the case, we are of opinion that the opinion of Mr. Justice Preston, rendered on the 18th January, 1887, appealed from, should be sustained, and we hereby adopt and affirm the same.
In addition we wish to say that Ating, the original lessee of Dr. McGrew, having assigned the lease to Kam On, and Kam On having mortgaged the term to Ho Yeng, and Ho Yeng having assigned the mortgage debt and security to Hop Sing, (the plaintiff) the term is still outstanding, the lease not having expired, and Hop Sing is entitled to have his mortgage foreclosed.
The so-called “ surrender ” taken by Dr. McGrew from Kam On, on the 12th July, 1886, cannot be held to be a surrender of the leasehold, or a forfeiture of the lease for the non-payment of rent.
Kam On had assigned the lease of 1881, by way of mortgage.
His only remaining interest in it, therefore, was the equity of redemption. This was all, if anything, that passed to McGrew, by the instrument of July 12, 1886, for this was all Kam On had.
The lessee’s interest in the lease was then held by Hop Sing.
There was no merger of the term with the freehold in McGrew, for there was an equity'intervening — the mortgage held by Hop Sing.
McGrew having taken possession, there is no rent accruing to him thereafter, for the lessor cannot have his land and rent for it as well.
But as to any arrears of rent, prior to the taking possession by McGrew, this should be paid by the mortgagee, who, as the assignee of the lessee, would be liable for it.
For if a mortgagee has had the lease assigned to him as a security merely, he is held to be seized of the legal estate, and is liable as assignee, whether in possession or not. Taylor’s Landlord and Tenant, Section 455, and cases cited.
But as we understand the evidence, Dr. McGrew has taken notes from Kam On for the rent accruing prior to his taking possession. This would preclude him from claiming it from the mortgagee.
Decree affirmed.
Rehearing
Decision of the Court, on Motion for Re-hearing, by
While re-affirming the views of the Court as expressed in Kenway vs. Notley, 5 Hawn., 129, in regard to the right of parties to have a case re-heard, we have deemed it proper to make a few observations in regard to this case. The rule of law, as we understand it, is that the taking of notes for rent does not necessarily extinguish the claim or bar the remedy by distress, yet where the circumstances show that it was intended by the parties that the note should be taken as absolute payment of the rent, then the landlord’s only remedy is upon the note.
Without discussing this question further, we think a modification of the decree ordering that McGrew be paid his back
Mr. Hatch, for Dr. McGrew, further says: “ Upon the point whether or not the waiver of the right to have demand made for rent, as contained in plaintiff’s lease, affects the question of forfeiture. Defendant asks to be heard on this point for the reason that the same has not been decided by the Court, though presented and relied upon by counsel.”
From the view taken by the Court of the document called a “ surrender,” dated the 12th July, 1886, it was unnecessary to decide whether a demand for rent was essential to complete the forfeiture. We have considered the document as effecting not a forfeiture, but as being a purchase of the equity of redemption.. We call attention to the fact that the answer does not set up a title by forfeiture, but merely alleges that defendant is rightfully in possession as against the plaintiff.
The defendant’s counsel urge further: “ The crop put in by McGrew, after taking possession in July, was harvested in December, 1886. The decree gives this to plaintiffs. If defendant McGrew is disallowed rent after he took possession, on the theory that he has had the use and enjoyment of his land, how can the crop, the fruit of that possession, be given to plaintiffs ? If, on the other hand, plaintiffs are to be allowed the crop, as if they made the advances and cultivated it, why should they not be held to pay rent ? If the crop goes to the plaintiffs, the reference to the Master should cover the expenses of cultivation.”
We would remark that the plaintiff (mortgagee) does not get the crop by virtue of making the advances, but he is to be
The defendant, McGrew, being in possession under th§ lease, and not as landlord under a forfeiture, cultivated the land for the mutual benefit of the mortgagee and mortgagor in order to enhance the. value of the mortgage security. Certainly if the crop was not kept in good condition, the value of the security and its ability to discharge the mortgage would diminish ; and it was for the interest of the mortgagor that this should not take place, for if the crop did not pay the mortgage debt, the mortgagor would have to make it good.
Upon a review of the whole case, we see no reason to modify the decree.