17 Haw. 49 | Haw. | 1905
OPINION OF THE COURT BY
This is a bill in equity to set aside a mortgage foreclosure made under a power of sale contained in the mortgage, to compel the purchaser to reconvey the premises to the heirs of the deceased mortgagor, for an injunction against an action of ejectment brought by the purchaser, and for an accounting and order to pay the amount found due on the mortgage. The appeal is from a decree sustaining a demurrer to the bill and dismissing the bill.
The bill covers twenty-three pages besides the exhibits which are made a part of it but the substance of its principal allegations may be stated in a few words. It is brought by or on behalf of the deceased mortgagor’s widow and children against the purchaser at the foreclosure sale, the corporation for which he is alleged to have purchased and most of the stock in which the mortgagee is alleged to have owned, and the trustees under the will of the deceased mortgagee. The mortgage permitted a purchase by the mortgagee. It is alleged, among other things, that the mortgagor on May 4, 1895, executed a note for $2500, payable in four years to the mortgagee, and a mortgage to secure the same, as well as taxes, insurance, expenses, etc., the mortgagor’s wife also releasing her dower in the mortgaged prem
The relief sought by way of reconveyance, injunction and accounting is incidental, the main relief sought being the setting aside of the foreclosure sale on the ground that it was either void or voidable.
The main contention is that, in view of the uncertainty as to the amount due under the mortgage, the mortgagee should have had an accounting with the mortgagor as a condition precedent
The fact that an action on the note was barred, if such were the case, or that the claim upon it against the administratrix was barred by reason of failure to present the claim within the statutory period would not prevent foreclosure of the mortgage. Campbell v. Kamaiopili, 3 Haw. 477; Kaikainahaole v. Allen, 14 Haw. 527; Castle v. Smith, ante, 32. This is not disputed, but the fact that the claim against the administratrix was barred is relied upon as an equity in the case in connection with the statutory provision prohibiting the allowance of any claim barred by the statute of limitations (Rev. L. Sec. 1852), the contention being that the mortgagee should not have foreclosed when, as he knew, the administratrix and the widow and minor children were unable to redeem, but that he ought to have filed his claim with the administratrix so that she could have paid the mortgage and thus have avoided a sale of the property at an inadequate price. We cannot say that the parties interested under the mortgagor, after his death, could not have redeemed (see Kuhoomana v. Carvalho, 11 Haw. 516), or that
The allegations relied on to show that the sale was not conducted fairly are insufficient. One of these is that the sale was not fully advertised in accordance with custom by posters distributed throughout the city and especially on or in the vicinity of the mortgaged premises. It was not necessary, however advisable, to advertise by posters in addition to advertising in the newspapers, but the affidavit of foreclosure states that the sale was further advertised by printed posters. The other allegation is that the premises were capable of subdivision into eight or ten residence lots and that if sold in such lots they would have brought a much higher price. The premises consisted of a single lot slightly over an acre in area and apparently had never been subdivided. They were described in the mortgage as a single lot and there is nothing in the mortgage to indicate that they should be subdivided for the purpose of a sale on foreclosure. It does not appear in any way that it was a violation of duty to sell the premises as a whole or that the mortgagee was disregardful of the rights of the mortgagor in so selling the premises. See on this point Cooper v. Island Realty Co., 16 Haw. 92, and Deskey v. Booth, 16 Id. 506, cases of foreclosure by decree in equity.
The contention that the statute in regard to foreclosure under a power of sale (Eev. L. Sec. 2163) is unconstitutional, is based on the ground that the statute should have declared how and where the publication of notice of intention to foreclose and of sale should be made. It requires that the mortgagee shall give notice of his intention to foreclose “by publication of such notice in the Hawaiian and English languages for a period of three consecutive weeks, before advertising the mortgaged property for sale, and also give such notices and do all such acts as are authorized or required by the power contained in the mortgage.”
Another contention is that no entry was made upon the premises before foreclosure although the mortgage itself expressly provides that upon breach of condition “it shall be lawful for the mortgagee, his administrators and assigns to enter into and upon all and singular the premises hereby granted, and to sell and dispose of the same,” etc. Opposing counsel urge that if entry was a condition precedent and there was no entry, that may be set up by way of defense in the action of ejectment and affords no ground for an exercise of equity jurisdiction. We will assume, however, that not only was entry a condition precedent but that failure to comply with that condition would justify a court of equity in setting aside the sale and the conveyance made in pursuance thereof — for the purpose of removing from the title a cloud that was not apparent upon the face of the conveyance or the affidavit of foreclosure sale or on the ground that the trust relation existing between the mortgagor and mortgagee, even after sale, especially if the purchaser was acting for the mortgagee, conferred equity jurisdiction. Silva v. Lopez, 5 Haw. 262, may, perhaps, be considered an authority upon both of these points. The decision in that case upon the point that the entry was a condition, precedent followed' certain Massachusetts cases there cited, which have been followed in the more recent case of Foster v. City of Boston, 133 Mass. 143,