Waterhouse v. Achi

Citations

• 24 Haw. 431
• 1918 Haw. LEXIS 21

Syllabus

<p>Parties — equity—mortgages—application, of payments.</p> <p>Where a mortgage contains a stipulation that the mortgagor may sell the mortgaged property in parcels, the mortgagee to receive and apply on the mortgage indebtedness certain portions of the proceeds of the sales and a second mortgage is given on the same property in which it is stipulated that the mortgagor may sell in parcels and all of the proceeds of sales not applicable to the prior mortgage indebtedness, shall be paid upon the subsequent mortgage indebtedness, the mortgagee in the prior mortgage is a necessary party to a suit to foreclose the latter mortgage, especially when it is alleged in the answer of the mortgagor that sales had been made the proceeds of which over and above the amounts applicable to the senior mortgage indebtedness were sufficient to satisfy the junior mortgage indebtedness and that the junior mortgagee had, without the consent of the mortgagor, permitted the senior mortgagee to retain all of the proceeds of such sales, as under such circumstances the mortgagees in both mortgages are legally and beneficially interested in the subject matter of the suit, and the mortgagor has the right to have the application of the payments determined.</p>