Polyblank v. Kawananakoa

CourtSupreme Court of Hawai'i
Writing for the CourtFREAR
Citation17 Haw. 82
PartiesELLEN ALBERTINA POLYBLANK, OTHERWISE KNOWN AS SISTER ALBERTINA, TRUSTEE FOR STELLA KEOMAILANI COCKETT, AND STELLA K. COCKETT, SOLE BENEFICIARY UNDER SAID TRUST, v. DAVID KAWANANAKOA, JONAH KALANIANAOLE, ABIGAIL W. KAWANANAKOA, ELIZABETH K. KALANIANAOLE, AND THE GERMAN SAVINGS AND LOAN SOCIETY, A CORPORATION.
Decision Date23 October 1905

17 Haw. 82

ELLEN ALBERTINA POLYBLANK, OTHERWISE KNOWN AS SISTER ALBERTINA, TRUSTEE FOR STELLA KEOMAILANI COCKETT, AND STELLA K. COCKETT, SOLE BENEFICIARY UNDER SAID TRUST,
v.
DAVID KAWANANAKOA, JONAH KALANIANAOLE, ABIGAIL W. KAWANANAKOA, ELIZABETH K. KALANIANAOLE, AND THE GERMAN SAVINGS AND LOAN SOCIETY, A CORPORATION.

Supreme Court of the Territory of Hawai‘i.

Argued October 4, 1905.
Decided October 23, 1905.



APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

A suit to foreclose a mortgage may be brought against the mortgagors without joining a subsequent purchaser of a portion of the mortgaged premises, and a deficiency judgment against the mortgagors may be authorized without first foreclosing the interest of the subsequent purchaser when that subsequent purchaser is the Territory of Hawaii.


E. A. Douthitt for plaintiffs.

C. W. Ashford for defendants.


FREAR, C.J., HARTWELL AND WILDER, JJ.

OPINION OF THE COURT BY WILDER, J.

This is an appeal from a decree of foreclosure and sale under a mortgage from D. Kawananakoa and J. Kalanianaole to Sister Albertina, trustee for Stella K. Cockett. The suit was brought by the mortgagee against the mortgagors and their wives, the German Savings & Loan Society, a junior mortgagee of a portion of the mortgaged premises, and the Territory of Hawaii, and later discontinued as

[17 Haw. 83]

to the Territory. After the execution of the mortgage the mortgagors conveyed a portion of the mortgaged premises to S. M. Damon, who, in turn, conveyed it to the Territory. The decree authorized the entry of a deficiency judgment against the mortgagors in case the proceeds from a sale of the mortgaged premises should be found to be insufficient to pay the amount due.

The first claim of appellants is that the decree should be reversed because a purchaser, subsequent to the mortgage, of a portion of the mortgaged premises was not made a party to the suit. It is clear that, unless joined as a party, the rights of a subsequent purchaser cannot be affected or concluded by the decree. The mortgagors have no reason to complain because their interest in the mortgaged premises is foreclosed without joining the subsequent purchaser of a portion. It follows that the foreclosure is good as far as it goes. See Childs v. Childs, 10 O. St. 339;Landon v. Townshend, 112 N. Y. 93; 2 Jones on Mortgages, Sec. 1395; Kay v. Whittaker, 44 N. Y. 565;Merriman v. Hyde, 2 N. W. 218.

It is further claimed that no deficiency judgment should be...

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5 practice notes
  • In re Lincoln Loy Mccandless for Registration of Title to Land in the Dist. of Waianae, No. 2204.
    • United States
    • Supreme Court of Hawai'i
    • March 5, 1937
    ...of suits against the United States to recover possession of real property, or to redress a tort.’ ” In Polyblank v. Kawananakoa, 17 Haw. 82, a bill to foreclose a mortgage was brought by the mortgagee against the mortgagors. At a time subsequent to the execution of the mortgage the mortgago......
  • Munoz v. Ashford, NO. 2923.
    • United States
    • Hawaii Supreme Court
    • January 14, 1955
    ...consent to be sued constitute a bar to the action. ( Reed v. Timberman, supra; Coffield v. Territory, 13 Haw. 478;Kawananakoa v. Polybank, 17 Haw. 82, aff'd. 205 U. S. 349.) The fifth issue raised by the joint demurrers, is whether [40 Haw. 688]the action is barred by either the doctrines o......
  • David Kawananakoa v. Ellen Albertina Polyblank, No. 273
    • United States
    • United States Supreme Court
    • April 8, 1907
    ...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......
  • Yuen v. Kimikaua, No. 2437.
    • United States
    • Hawaii Supreme Court
    • September 29, 1944
    ...9 Haw. 195;Hyman Bros. v. Sing Warn, 16 Haw. 106. 6.Byrne v. Allen, 10 Haw. 668;Lyle v. Slegman, 26 Haw. 351. 7.Kawananakoa v. Polyblank, 17 Haw. 82,aff'd205 U. S. 349. 8. R. L. H. 1935, § 4420. 9.McCoy & Son v. First Nat. Bank, 123 Okla. 90, 252 Pac. 404,...
  • Request a trial to view additional results
5 cases
  • In re Lincoln Loy Mccandless for Registration of Title to Land in the Dist. of Waianae, No. 2204.
    • United States
    • Supreme Court of Hawai'i
    • March 5, 1937
    ...of suits against the United States to recover possession of real property, or to redress a tort.’ ” In Polyblank v. Kawananakoa, 17 Haw. 82, a bill to foreclose a mortgage was brought by the mortgagee against the mortgagors. At a time subsequent to the execution of the mortgage the mortgago......
  • Munoz v. Ashford, NO. 2923.
    • United States
    • Hawaii Supreme Court
    • January 14, 1955
    ...consent to be sued constitute a bar to the action. ( Reed v. Timberman, supra; Coffield v. Territory, 13 Haw. 478;Kawananakoa v. Polybank, 17 Haw. 82, aff'd. 205 U. S. 349.) The fifth issue raised by the joint demurrers, is whether [40 Haw. 688]the action is barred by either the doctrines o......
  • David Kawananakoa v. Ellen Albertina Polyblank, No. 273
    • United States
    • United States Supreme Court
    • April 8, 1907
    ...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......
  • Yuen v. Kimikaua, No. 2437.
    • United States
    • Hawaii Supreme Court
    • September 29, 1944
    ...9 Haw. 195;Hyman Bros. v. Sing Warn, 16 Haw. 106. 6.Byrne v. Allen, 10 Haw. 668;Lyle v. Slegman, 26 Haw. 351. 7.Kawananakoa v. Polyblank, 17 Haw. 82,aff'd205 U. S. 349. 8. R. L. H. 1935, § 4420. 9.McCoy & Son v. First Nat. Bank, 123 Okla. 90, 252 Pac. 404,...
  • Request a trial to view additional results

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