David Kawananakoa v. Ellen Albertina Polyblank

• Decision Date: 08 April 1907
• Docket Number: No. 273,273
• Citation: 205 U.S. 349,27 S.Ct. 526,51 L.Ed. 834
• Parties: DAVID KAWANANAKOA, Jonah Kalanianaole, Abigail W. Kawananakoa, and Elizabeth K. Kalanianaole, Appts., v. ELLEN ALBERTINA POLYBLANK, Otherwise Known as Sister Albertina, Trustee for Stella Keomailani Cockett, and Stella K. Cockett, Sole Beneficiary under Said Trust
• Court: U.S. Supreme Court

205 U.S. 349

27 S.Ct. 526

51 L.Ed. 834

DAVID KAWANANAKOA, Jonah Kalanianaole, Abigail W. Kawananakoa, and Elizabeth K. Kalanianaole, Appts.,

v ELLEN ALBERTINA POLYBLANK, Otherwise Known as Sister Albertina, Trustee for Stella Keomailani Cockett, and Stella K. Cockett, Sole Beneficiary under Said Trust.

No. 273.

Argued and submitted March 21, 1907.

Decided April 8, 1907.

Mr. Sidney M. Ballou for appellants.

[Argument of Counsel from pages 349-351 intentionally omitted] Messrs. Aldis B. Browne, Alexander Britton, and E. A. Douthitt for appellees.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a decree affirming a decree of foreclosure and sale under a mortgage executed by the appellants to the appellee, Sister Albertina. 17 Haw. 82. The defendants (appellants) pleaded to the jurisdiction that after the execution of the mortgage a part of the mortgaged land had been conveyed by them to one Damon, and by Damon to the territory of Hawaii, and was now part of a public street. The bill originally made the territory a party, but the territory demurred and the plaintiffs dismissed their bill as to it before the above plea was argued. Then the plea was overruled, and after answer and hearing the decree of foreclosure was made, the appellants having saved their rights. The decree excepted from the sale the land conveyed to the territory, and directed a judgment for the sum remaining due in case the proceeds of the sale were insufficient to pay the debt. Eq. Rule 92.

The appellants contend that the owners of the equity of redemption in all parts of the mortgage land must be joined, and that no deficiency judgment should be entered until all the mortgaged premises have been sold. In aid of their contention they argue that the territory of Hawaii is liable to suit like a municipal corporation, irrespective of the permission given by its statutes, which does not extend to this case. They liken the territory to the District of Columbia (Metr- opolitan R. Co. v. District of Columbia, 132 U. S. 1, 33 L. ed. 231, 10 Sup. Ct. Rep. 19), and point out that it has been a party to suits that have been before this court (Damson v. Hawaii, 194 U. S. 154, 48 L. ed. 916, 24 Sup. Ct. Rep. 617; Carter v. Hawaii, 200 U. S. 255, 50 L. ed. 470, 26 Sup. Ct. Rep. 248).

The territory, of course, could waive its exemption (Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140, 20 Sup. Ct. Rep. 919), and it took no objection to the proceedings in the cases cited if it could have done so. See act of April 30, 1900, chap. 339, § 96. 31 Stat. at L. 141, 160. But in the case at bar it did object, and the question raised is whether the plaintiffs were bound to yield. Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 'Car on peut bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy.' Bodin, Republique, 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestatis, chap. 3. Nemo suo statuto ligatur necessitative. Baldus, De Leg. et Const. Digna Vox, 2. ed. 1496, fol. 51b, ed. 1539, fol. 61....