Maile v. Joseph O. Carter & Allen & Robinson, Ltd.
| Decision Date | 16 October 1905 |
| Citation | 17 Haw. 49 |
| Court | Hawaii Supreme Court |
| Parties | KOOLAU MAILE, FORMERLY KOOLAU KAIKAINAHAOLE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN W. KAIKAINAHAOLE, DECEASED, ETHEL H. AND HERMAN M. KAIKAINAHAOLE, MINORS, BY THEIR GUARDIAN KOOLAU MAILE, AND JOHN KAIKAINAHAOLE, A MINOR, BY HIS GUARDIAN AD LITEM KOOLAU MILE, v. JOSEPH O. CARTER AND ALLEN & ROBINSON, LIMITED, AND PAUL MUHLENDORF, M. P. ROBINSON, J. O. CARTER AND BATHSHEBA M. ALLEN, TRUSTEES UNDER THE WILL OF SAMUEL ALLEN, DECEASED. |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
A mortgagee is not obliged to render an accounting to the mortgagor as a condition precedent to foreclosure under a power, even though the amount secured by the mortgage was left with him to be applied, and was so applied in part at least with the mortgager's consent, to the cost of improvements on the mortgaged premises.
The right to foreclose may not be barred by the statute of limitations, though a claim upon the note against the administratrix is barred.
Ordinarily, unless required by the mortgage, it is not necessary to advertise a foreclosure by posters in addition to newspapers, or to sell in parcels a lot mortgaged as a whole.
A foreclosure sale cannot be set aside if made in accordance with the provisions of the mortgage, even if the statute relating to foreclosures under powers of sale is unconstitutional in whole or in part.
Assuming that, when a mortgage authorizes the mortgagee upon a breach to enter and foreclose, entry is a condition precedent to foreclosure and that if such entry is not made equity may set aside the foreclosure sale (Silva v. Lopez, 5 Haw. 262), it is held in this case that the bill does not clearly show that such entry was not made.H. E. Highton and C. W. Ashford for plaintiffs.
Kinney, McClanahan & Cooper for defendants.
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 premises, but that the said sum was not received by the mortgagor but was left by him with the mortgagee to be applied, with the consent of the mortgagor, to the payment of the cost of certain improvements upon the mortgaged premises, and that various payments were so made prior to the death of the mortgagor, April 29, 1897, but that there had been no accounting between the mortgagor and mortgagee prior to the mortgagor's death and has been none since between the mortgagee or his legal representatives and the complainants, or any of them; that the mortgagee claimed in his lifetime that the amount due under the mortgage, including principal, interest, costs of foreclosure, etc., was $3976.85, but that in the absence of an accounting the complainants do not know and have no means of ascertaining whether the said claim was accurate or not; that the mortgagee filed no claim with the administratrix of the estate of the mortgagor; that the statute relating to sales under powers contained in mortgages is unconstitutional and void; that certain affidavits made in connection with the foreclosure are untrue or inaccurate in so far as they relate to entry by the mortgagee prior to foreclosure; that the sale was not conducted fairly or lawfully in that it was not properly advertised and in that the premises should have been sold in parcels instead of as a whole; that the price obtained, $9,500, was grossly inadequate, and that the premises were of the value of not less than $16,000; that an action of ejectment is pending for the recovery of the premises by the purchaser; and that certain other proceedings have been brought in the past in connection with the mortgage or foreclosure,-this last allegation being relied upon to rebut any possible presumption of laches.
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 to the foreclosure, even without any request for an accounting by the mortgagor. This contention cannot be sustained. It is not denied that some amount was due under the mortgage and that there had been a breach of condition, upon which, by the terms of the power contained in the mortgage, a foreclosure sale might be had. There is no provision of law, nor is there any provision in the mortgage, requiring an accounting as a condition precedent to foreclosure, whether the amount due is or is not definitely known to the mortgagor, nor is there any provision requiring a statement of the amount due to be made before the sale to the mortgagor or in the notice or advertisement of foreclosure or sale. The...
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