Butterfield v. Bon
| Decision Date | 02 May 1900 |
| Citation | 12 Haw. 337 |
| Parties | JOHN A. BUTTERFIELD v. CHARLES BON. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREORIGINAL.
Syllabus by the Court
The words “time of entry” as used in Session Laws 1874, Chap. 48, Civ. Laws, Sec. 1787, relating to foreclosure of mortgaged property by entry and possession, mean the “date or day” of entry and not the “hour and minute” of the day.
The certificate of entry is evidence of all facts therein stated necessary to the foreclosure.
The statement of facts, on which the submission without action is based, not showing with certainty that a material fact is agreed upon, it requiring evidence to establish the same, is dismissed without prejudice.
Castle & Weaver for plaintiff.
Henry Holmes for defendant.
Submission of case without action on agreed statement of facts, viz:
1. Agreement of sale from which the following only is material: Butterfield agrees to sell and Bon agrees to purchase a piece of land (described) on Punahou and Hastings streets in Honolulu; purchase to be complete June 1, 1899, time being of the essence of the contract ***. Butterfield shall furnish Bon with a good title to the premises free from incumbrances with warranty.
2. Tender of deed by Butterfield to Bon on June 1, 1899, which was refused on the sole ground that a good title had not been furnished. No other objection was made.
3. The title to the premises stands as follows: The lot in question became vested in Thomas Beverly Spring (by deed, November 20, 1895; recorded Liber 155, p. 410, Registry of Conveyances). Spring made mortgage deed on these premises to the Trustees of Oahu College August 5, 1899, of record Liber 163, p. 220. At this point title is good. This mortgage was for the sum of $3,000 with covenants including one for fire insurance, to wit, “that insurance against loss by fire shall be maintained upon the buildings on said premises for not legs than twenty-five hundred dollars, loss if any payable to said mortgagee or their representatives.”
In case of default in the payment of note, “or in the observance and performance of any of said covenants or in any of the terms hereof” the whole debt becomes due and payable and mortgagee may “thereupon foreclose this mortgage either by bill in equity, entry and possession or by sale at public auction.”
4. Before the end of August, 1896, the mortgagor absconded and the mortgagee foreclosed by entry under the statute of 1874, Chapter 48. In September, 1896, the mortgagee being then in possession under the certificate of entry, assigned over to Butterfield the said mortgage, the certificate of entry and all of its rights. Possession has been continuous from entry to date hereof. Subscribed and sworn to by them before a First Circuit Judge August 24, 1896.
A copy of the assignment by the trustees to Butterfield is attached but need not be here set forth in detail.
5. The mortgage, certificate of entry and assignment constitute Butterfield's title to the premises to which objection is made as insufficient.
Claims. The said Butterfield claims that his title in the premises is good, that he is the legal owner of the land agreed to be sold; that the entry and certificate are both in accordance with law, and more than a year having elapsed since the entry was made and the certificate was recorded and possession having been continuous since, the foreclosure is complete, the mortgagor is barred from redemption, the title is good and said Bon is legally bound to carry out the contract and accept a conveyance from Butterfield.
Bon claims. (1) That Butterfield does and can produce no evidence of the breach by the mortgagor Spring of the condition to insure, the breach of which condition is alleged to have given the mortgagee (the trustees of Oahu College) the right to foreclose.
(2) That the certificate of entry does not comply with the statute (Session Laws 1874, Chap. 48) under which the proceedings for foreclosure were taken by stating the “time of such entry;” that such certificate is therefore invalid and all proceedings consequent thereon are abortive.
(3) That the terms imposed by the statute not having been complied with, the mortgagor's equity of redemption has not been foreclosed and Butterfield is not the legal and equitable owner of the land, and is not possessed of the land agreed to be sold by him to Bon for an estate in fee simple, and is therefore not able to furnish Bon with a good title to it, and specific performance of the contract cannot therefore be decreed.
It is stipulated that judgment may be entered in accordance with the law determined by this court.
Foreclosure of mortgaged property by entry and possession. Session Laws 1874, Chap. 48, Civil Laws, Sec. 1787, provides:
“After breach of the condition, if the mortgagee, or any one claiming under him, is desirous of obtaining possession of the premises for the purpose of foreclosure, he may proceed in either of the following ways, viz: First, * * (by consent in writing of mortgagor). Second. “He may enter peaceably and openly, if not opposed, in the presence of two witnesses and take possession of the premises, in which case a certificate of the act and time of such entry shall be made and signed and sworn to by such witnesses before any judge of a court, and such written consent and such certificate shall be recorded in the Registry of Conveyances and no such entry shall be effectual unless such certificate or consent in writing shall be recorded within thirty days next after such entry is made.”
Sec. 1789. “Such possession obtained in either of the two modes above described being continued for the term of one year shall forever foreclose the right of redemption.”
The defendant Bon claims that courts will not...
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