Whitney v. Ross

Hawaii Supreme Court

Whitney v. Ross

17 Haw. 453, 1906 Haw. LEXIS 65

DecidedApril 11, 1906

StatusPublished

This text of 17 Haw. 453 (Whitney v. Ross) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitney v. Ross, 17 Haw. 453, 1906 Haw. LEXIS 65 (haw 1906).

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Opinion

OPINION OP THE COURT BY

HARTWELL, J.

The plaintiff, as administrator of the estate of a mortgagor, brought assumpsit against the assignee of the mortgagee to obtain the surplus of $710 remaining in his hands after payment of the mortgage debt from the proceeds of foreclosure under a power of sale, which surplus money the defendant refused to pay to the administrator on the grounds that the mortgage provided for its payment to the mortgagor, his heirs [454]*454or assigns and that Sec. 2165, R. L., requires that “it shall be paid over to the owner of the mortgaged property.” It appeared in evidence that the estate was insolvent. Jury being waived, the court'gave judgment for the defendant, on the grounds above stated, to which the plaintiff excepted.

Castle & 'WUhvngion for plaintiff. Magoon & Lightfoot for defendant.

In addition to the grounds on which the defendant refused to pay the surplus to the administrator, namely, the provision cited from the statute and the words in the mortgage requiring payment to the mortgagor, his heirs or assigns, he contends that the mortgaged land, subject to the mortgage, descended to the heirs upon the death of the mortgagor and therefore that the heirs are entitled to the surplus money which represents, in away, the equity of redemption. It was in this view that in Wright v. Rose, 2 Sim. & St. 321, the court held that “the estate being unsold at the death of the mortgagor the equity of redemption descended to his heir, and he is now entitled to the surplus produce.” He- also contends that the rights of the heirs cannot be disposed of in this action as they are not made parties. But however it may be in cases in which an estate is shown to be sufficient to meet the claims of creditors we think that the surplus money is properly paid to the administrator when, as in this case, it is clear that all of it is required for the payment of debts.

Exceptions sustained, judgment reversed.

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OPINION OP THE COURT BY

HARTWELL, J.

The plaintiff, as administrator of the estate of a mortgagor, brought assumpsit against the assignee of the mortgagee to obtain the surplus of $710 remaining in his hands after payment of the mortgage debt from the proceeds of foreclosure under a power of sale, which surplus money the defendant refused to pay to the administrator on the grounds that the mortgage provided for its payment to the mortgagor, his heirs [454]*454or assigns and that Sec. 2165, R. L., requires that “it shall be paid over to the owner of the mortgaged property.” It appeared in evidence that the estate was insolvent. Jury being waived, the court'gave judgment for the defendant, on the grounds above stated, to which the plaintiff excepted.

Castle & 'WUhvngion for plaintiff. Magoon & Lightfoot for defendant.

In addition to the grounds on which the defendant refused to pay the surplus to the administrator, namely, the provision cited from the statute and the words in the mortgage requiring payment to the mortgagor, his heirs or assigns, he contends that the mortgaged land, subject to the mortgage, descended to the heirs upon the death of the mortgagor and therefore that the heirs are entitled to the surplus money which represents, in away, the equity of redemption. It was in this view that in Wright v. Rose, 2 Sim. & St. 321, the court held that “the estate being unsold at the death of the mortgagor the equity of redemption descended to his heir, and he is now entitled to the surplus produce.” He- also contends that the rights of the heirs cannot be disposed of in this action as they are not made parties. But however it may be in cases in which an estate is shown to be sufficient to meet the claims of creditors we think that the surplus money is properly paid to the administrator when, as in this case, it is clear that all of it is required for the payment of debts.

Exceptions sustained, judgment reversed.

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Bluebook (online)

17 Haw. 453, 1906 Haw. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-v-ross-haw-1906.