Wong v Sungiyama [1967] TTLawRp 27; 3 TTR 367 (18 December 1967)

Action to determine rights of parties under equitable mortgage of land. A previous High Court suit for ejectment involving same property had been brought by individual who claimed under defendant-mortgagor in present case. The Court there held that mortgagee-plaintiff had right of possession only in that part of property occupied by mortgagee with consent of mortgagor or those claiming under her, and that mortgagor had right of redemption even in that portion. In present foreclosure suit, the Trial Division of the High Court, Associate Justice D. Kelly Turner, held that because of prior holding, mortgagee's security interest is limited to portion allowed by Court in previous ejectment action, as well as other portion of property not willingly released by mortgagee from mortgage debt.

Principle of res judicata rests upon ground that party bound by doctrine, or another party in privity with him, has litigated or had opportunity to litigate a question or issue or controversy in former action and may not litigate it again with same opponent or one claiming under him.

In order for doctrine of res judicata to be applied in any court action it is necessary that same questions were litigated by same parties in prior action.

Where same parties litigated same questions in prior Court action court's rulings in that action are binding upon parties in subsequent action and only questions reserved for future decision may be considered in second suit.

Where court in former action between same parties involving property limited mortgagee's security interest to certain portion of land in question, court in subsequent case must likewise limit mortgage security.

Tender of mortgage debt after maturity operates to discharge mortgage and constitutes a defense to foreclosure action.

Before a tender which is refused may discharge mortgage debt, tender must be for entire amount of mortgage debt and interest.

An offer by Mortgagor to "talk about" amount of money she is ready to give mortgagee, and offer that money would soon be available to repay unspecified amount of mortgage debt are not tenders in legal sense sufficient to extinguish mortgage.

Where mortgagee and those claiming under him occupy portion of land subject to mortgage with consent and acquiescence of mortgagor, lien interest and legal title in property so occupied are merged, and to that extent mortgage is released.

Although in general merger of legal and equitable interests occurs only when legal title to all land subject to mortgage liens vests in mortgagee, exception is recognized where parties intend to merge le-gal and security interests in only part of property subject to mortgage.

Where mortgagee and mortgagor agree to extinguish mortgage debt by transfer of land, mortgagor's right of redemption is extinguished as to portion of land transferred.

Even if mortgagor and mortgagee evidence no express intent or agreement to extinguish right of redemption in mortgaged property, mortgagor loses such right by failing to pay mortgage debt for nine years after default and by acquiescing in mortgagee's use and occupancy of land during that period.

Action to foreclose mortgage is dual in nature, whereby judgment is rendered for amount of money due mortgagee from mortgagor and property is then auctioned at foreclosure sale and amount of judgment paid out of proceeds.

Where, at foreclosure sale there are no other bidders or other bidders are unwilling to pay amount of judgment awarded to mortgagee, latter may buy land by bidding amount of his money judgment.

If anyone, including mortgagee, buys property at foreclosure sale, mortgagor has period of redemption by paying purchaser amount he paid at sale plus interest.

Since Trust Territory law has no provision relating to foreclosure of land mortgages, period of redemption should be reasonable time to be determined by court.

Mortgagor may avoid foreclosure sale and subsequent exercise of right of redemption by paying amount of money judgment awarded to plaintiff before Sheriff's sale of land.

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Interpreters:	JUDGE PABLO RINGANG
Assessor:	HARUO I. REMELIIK BARENCHINO NGIRIKILANG
Reporter:	NANCY K. HATTORI
Counsel for Plaintiff:	WILLIAM O. WALLY
Counsel for Defendant:	JONAS W. OLEKERIIL
Counsel for Intervenor:	ITELBANG LUII

This action is concerned with the rights of the parties under an equitable mortgage of land which has been in default more than nine years. The debt, which the contract between the parties secured, has existed for ten years. This is the third time the issues between the parties have been tried, first in the District Court for debt, and twice in the High Court regarding the land; although the first High Court trial, in 1960, raised the question in a different proceeding than the present mortgage foreclosure.

The first trial and judgment in the High Court concerned an action in ejectment against plaintiff in the present case, who is the mortgagee, brought by an individual who claimed under the defendant-mortgagor in the present case. Although the defendant in this case also was named a defendant in the prior action, she was in fact only a nominal defendant and was the real party in interest. She testified at the present trial, "We brought the suit" against the plaintiff in the present case. Mers Iyar v. Rosang Sungiyama and Sintau Wong, 2 TTR 154.

Reports of the Trust Territory of the Pacific Islands

Wong v Sungiyama [1967] TTLawRp 27; 3 TTR 367 (18 December 1967)