Brown v. Walker

24 Haw. 285, 1918 Haw. LEXIS 47

Opinion

OPINION OF THE COURT BY

QUARLES, J.

August 22, 1911, the respondent leased certain premises in Honolulu to one H. Mirikidani for a term of ten years at a rent reserved of $50 per month payable the first day of each month. February 5, 1917, the leasehold interest conveyed to said lessee by the said lease was sold at execution sale and purchased by one R. C. Smead Avho received a bill of sale for the same from the sheriff and who on the 14th day of February, 1917, by bill of sale sold and transferred the said leasehold interest to plaintiff. The respondent claiming a forfeiture for nonpayment of rent the plaintiff on March 9, 1917, filed her bill of complaint in equity seeking to have the said forfeiture nullified, asking to be permitted to pay the rent in arrears which she alleged to be three months’ rent amounting to $150, and seeking to restrain the respondent from enforcing or attempting to enforce a forfeiture of the leasehold pendente lite and for such other relief as the plaintiff in equity may be entitled. The plaintiff’s bill, after alleging the other necessary probative facts, alleges: “That on February 14, 1917, the respondent reentered the premises covered by Exhibit A (the lease) and declared that the leasehold estate thereby created was forfeited for nonpayment of rent.” The answer of respondent admits the execution of the lease, denies the reentry and alleged forfeiture in February, 1917, but alleges a reentry and forfeiture of said leasehold by respondent in March, 1916, and alleges an occupancy of the premises by said Mirikidani since March, 1916, as a tenant at will of respondent. The bill alleges and the answer admits a tender on behalf of the plaintiff to the respondent of the sum of $150 rent in arrears made on or about the 23d day of February, 1917. The answer alleges that the plaintiff did not succeed to the said leasehold, that it was terminated in March, 1916, and that the plaintiff has no interest in the premises. On hearing the trial judge, sitting at chambers in equity, found that on February 14, 1917, there was due to the respondent the sum of $150 rent; that respondent has withheld from the plaintiff the demised premises since the 14th day of February, 1917; that the rental value of the premises per month, plus the water rates, is $75; that plaintiff is entitled to relief against the pretended or attempted forfeiture, and a decree was entered in accordance with the findings decreeing the respondent entitled to rent, water and sewer rates paid by him and which the lessee was to pay under the terms of the lease, in the sum of $255.75, and decreeing the plaintiff entitled to damages in the sum of $216.50 up to and including November 5, 1917, and that the forfeiture be annulled and the plaintiff have possession of the leasehold premises.

From the decree the respondent has appealed assigning a number of errors which we deem unnecessary to treat seriatim. The plaintiff introduced in evidence the record in a mortgage foreclosure suit instituted by her June 2, 1916, against said Mirikidani in which she obtained a decree of foreclosure, and after sale of the mortgaged property and application of the proceeds of the sale to the costs, expenses and mortgage debt, she was awarded a decree for a deficiency in the sum of $1696.60, and which was entered. Upon said deficiency decree an execution was issued but same was thereafter returned unsatisfied after which an alias execution issued on the deficiency decree and the same was levied upon the said leasehold interest which was sold at execution sale and purchased by said Smead who sold and assigned to the plaintiff.

One of the principal errors assigned and upon which others depend is that the decree of foreclosure mentioned Avas and is void for the reason that the amount of the mortgage debt Avas not definitely found or fixed therein. It is admitted that the court rendering the decree had jurisdiction of the subject-matter and of the parties. We have examined the decree and while it is not in proper form it does fix the amount of the indebtedness for which a foreclosure was decreed. It sets forth in haec verba a copy of the note for $2850 payable by its terms as follows: May 31, 1916, $250 with interest at six per cent, per annum ; May 31, 1917, and each year following not less than $200 and interest as aforesaid until the whole amount with interest shall have been paid. The court found in the decree of foreclosure that the first payment had not been made but defaulted and by reason of the nonpayment of the note the conditions of the mortgage were thereby broken and decreed a foreclosure. The defendant did not appear, although summoned, and was defaulted. The deficiency judgment was properly entered. It will be noticed that the attack upon the decree of foreclosure is collateral but the respondent correctly claims that if the decree of foreclosure is void for uncertainty, as he claims it to be, he may attack it collaterally. We do not think the decree is void and hold it to be good against a collateral attack. A decree in equity foreclosing a mortgage securing a note payable in instalments which sets forth the note in haec verba, finds that the first instalment thereon payable is past due and unpaid, and finds that the conditions of the mortgage have been broken by the nonpayment of the note, is not void for uncertainty. The decree of foreclosure was for the whole amount of the mortgage note with interest thereon.

It is also contended by respondent that the execution under which the leasehold Avas sold was void and unauthorized and that an execution cannot legally issue upon a decree in equity. If this contention is correct the result would be that in every foreclosure case, Avhere the mortgagor obtains a decree for a deficiency remaining after exhausting his security, he would have to bring an action at law upon the deficiency decree before he could enforce it. We hold otherwise. An execution may issue upon a decree for money rendered in a suit in equity where the court rendering the decree has jurisdiction of the subject-matter and of the parties. The second assignment of error is that the court erred in holding and deciding that the respondent had not declared a forfeiture in March, 1916. The correctness of this assignment is to be decided upon the evidence. In March, 1916, the lessee Mirikidani was in arrears of rent two months or tó the extent of $10 9 for the months of February and March. While testifying in his own behalf the respondent stated that on March 18, 1916, he went to see Mirikidani and told him the lease was paw and that he must get out and that Mirikidani said he would do so but failed to do so and that he (respondent) saw Mirikidani afterwards from time to time about rent that was due and unpaid and later asked Mirikidani why he did not get out, who gave the excuse that he could not get hnother house. Mirikidani testified that the respondent never informed him that the lease was terminated until after the plaintiff purchased the lease; that after the leasehold was sold and purchased by the plaintiff he received a writing — a paper — from plaintiff and took it to the respondent who examined it and said: “Never mind about this paper, you remain here under the old lease; you will have no pilikia■, no trouble.” Mirikidani testified that this conversation with the respondent was about two weeks after the plaintiff purchased the lease. He also testified that the respondent received rent from him two or three times after the plaintiff bought the lease and then refused to accept further rent and took his copy of the lease and his receipts for rent and asked him to go to the office of Mr. Peters (counsel for respondent) and tell him that the lease was paw or ended; that respondent then said to witness that the lease is pau; that this conversation was about two weeks after plaintiff bad purchased tbe lease and that respondent bad not told him (Mirikidani) that tbe lease was terminated or pau before that time; that he went to Mr. Peters’ office after tbis suit was brought, at tbe request of respondent, and told Mr. Peters that tbe lease was pau; that be (witness) then knew that tbis suit had been brought. Tbe receipts for rent were presented at tbe bearing by the respondent. There was competent evidence to show that tbe rental value of tbe property is $75 per month introduced without objection on tbe part of respondent. Tbe evidence tending to show that tbe respondent reentered and terminated tbe lease on March 18, 1916, consists alone of respondent’s statement and is flatly contradicted by Mirikidani. The evidence tending to show when respondent claimed tbe forfeiture and attempted to terminate tbe lease is contradictory and depends upon tbe direct evidence of tbe respondent on tbe one side and the witness Mirikidani on tbe other with the circumstances favoring the testimony of tbe latter. We think that on tbis point tbe trial judge was justified in finding the facts in favor of tbe plaintiff. An inspection of tbe receipts for rent which were introduced in evidence shows that tbe lessor did not require tbe prompt payment of rent on the day the same was due, tbe first of each month, but tbe rent was generally paid after tbe first and sometimes towards tbe close of tbe month or even after tbe expiration of tbe month. According to the evidence of Mirikidani tbe respondent did not claim a forfeiture, of tbe lease for nonpayment of rent until after the plaintiff bad acquired tbe leasehold, which was in February, 1917, when respondent told him tbe lease was pan. Tbe actions of the respondent and the circumstances corrobrate the testimony of Mirikidani. He, as original lessee, bad sublet a por tion of the premises, one of the two storerooms, at a rental of $35 per month, and continued to collect this rent, and with $15 additional (for Avhat appears to be half of the demised premises) paid the rent under the lease until after plaintiff had bought the leasehold when respondent commenced to collect the $35 per month from the subtenant and $25 from Mirikidani, that is, since February 14, 1917.

One of the errors assigned is that the plaintiff is not entitled to any reduction from rents, water and sewer rates that were in arrears by the Avithholding of the premises by respondent for the reason that the prayer of the bill did not ask for such relief. There was a general pray'er in the bill “that other relief be afforded the petitioner to which in equity she may be entitled.” There was no allegation in the bill as to the rental value of the demised premises but evidence showing the rental Avalué of the same to be $75 per month was introduced Avithout objection. Under all of the proven circumstances the rent reserved, Avhich was in arrears, and charges for water and sewer rates paid by respondent, were properly reduced by the rental value of the demised premises during the time they Avere withheld by respondent from the plaintiff. Equity having jurisdiction to relieve from a forfeiture for nonpayment of rent reserved and water and sewer rates the decree properly offset the rental value of the demised premises during the time they were withheld by the lessor from one who had purchased the leasehold at an execution sale and tendered the rent due.

One of the assignments of error is that the court refused to admit evidence of witnesses to prove that the respondent’s reputation for truth and veracity is good. There had been no attempt to impeach the respondent by showing that his reputation for truth and veracity was bad, hence evidence to show that it was good was properly rejected.

J. T. DeBolt for plaintiff. E. G. Peters for respondent.

We have examined the other assignments of error and find none of them sustained by the record and find no reversible error therein. '

The decree appealed from is affirmed.