Ballentyne v. Smith

This is an appeal from a judgment of the supreme court of the territory of Hawaii (17 Haw. 96), affirming an order of the third judge of the first circuit court in the territory of Hawaii, which refused to confirm a sale of property made by a commissioner under order of court in a foreclosure suit brought by William O. Smith, as trustee, against the Pacific Heights Electric Railway Company, Limited, a Hawaiian corporation, and directed that the property be again offered for sale. The suit was brought to foreclose a trust deed of $50,000 executed by the railway company to Smith, as trustee, on April 1, 1902, and purporting to convey an electric railway 2 1/2 miles in length and running up to Pacific Heights, with its equipment of every kind, and also all land and other property conveyed to it by deed from one Charles S. Desky, dated January 25, 1902.

The sale was made on February 4, 1905, for the sum of $1,100. It was in bulk of the entire property covered by the mortgage, except a cable and condenser, which were of comparatively little value, and which, for reasons not at all affecting the merits of this controversy, were not sold with the balance of the property. The commissioner who made the sale reported that the amount realized was disproportionate to the value of the property sold, and recommended that it should not be confirmed, but that such further order should be made as to the court should seem meet in the premises. On the hearing of a motion to confirm the sale, and objections thereto, the trial court found that the evidence was overwhelming that the actual value of the property was at least seven times the amount at which the property was struck off, that being the highest and best bid therefor.

Messrs. David L. Withington and William R. Castle for appellants.

[Argument of Counsel from pages 286-288 intentionally omitted]

Messrs. Francis M. Hatch, William O. Smith, A. Lewis, Jr., and L. J. Warren for appellees.

Statement by Mr. Justice Brewer:  Mr. Justice Brewer delivered the opinion of the court: