
    CHAS. S. DESKY v. C. W. BOOTH AND W. E. FISHER.
    Appeal from Circuit Judge, First Circuit.
    Submitted February 24, 1905.
    Decided March 6, 1905.
    Frear, C.J., Hartwell and Wilder, JJ.
    
      Mortgage — reformation.
    Decree of circuit judge dismissing bill to reform mortgage affirmed.
    
      Mortgage — foreclosure sale — in lots or as a whole.
    
    Discretion of circuit judge to order a foreclosure sale of tbe mortgaged lands in lots, instead of as a whole, not interfered with. Cooper v. Island Realty Co., 16 Haw. 92, followed.
   OPINION OF THE COURT BY

WILDER, J.

This is 'an appeal by C. S. Desky from a decree of one of the judges of the first circuit court, dismissing a bill to reform a mortgage, and for an injunction to prevent a statutory foreclosure sale of the mortgaged property as a whole.

The first contention of the appellant is that the mortgage in question should be reformed so as to exclude therefrom certain items of property included therein, as he alleges, by mutual mistake. The mortgage was executed in 1900, and the bill to reform the same was brought in 1904. This contention is utterly untenable. Aside from the fact that the suit to reform the mortgage was not instituted for more than two years after the discovery by Mr. Desky of at least one of the alleged mistakes, the evidence clearly shows that there was no such mistake as would justify the reforming of this instrument.

The next contention of the appellant is that the mortgaged premises should be sold in lots and not as a whole. This contention must also be overruled. Tbe authorities referred to by appellant on this point are either not applicable to the facts herein or are disposed of by the case of Cooper v. Island Realty Co., 16 Haw. 92, 105, which was not referred to by counsel for either side, holding that it was discretionary to decree a sale of mortgaged land in lots or as a whole. It is a well settled principle that the discretion of a trial judge will not be interfered with except in a clear case of abuse. In this case, after an examination of the record, exhibits and testimony, including the evidence which was offered but rejected, we are of the opinion that the trial judge was correct in refusing to order a sale by lots instead of as a whole.

John W. Cathcart and J. G. Pratt for plaintiff-appellant.

J. Alfred Magoon and J. Lightfoot for defendants-appellees.

The decree appealed from is affirmed.  