Polynesian., 1859-11-26
No. 80.

his proportion thereof that partition of the property
may be decreed between himself and the respondent
and that the portion that may be allotted to him. may
henceforth be held by him in severay or that in leu
thereof he and the respondent may be decree to hold
the entire land and building, and to receive the rents
and profits thereof alternately according to their re-
spechVe shares and for the appointment Of receiv-
er &c., concluding with the usual general prayer for
such other and further relief as the natureapd rcum
deem just.
The principal facts affecting the case as alleged in
e o are admitted IN the answer Of the respondent,
who also admits the necessity Of having the rights and
shares of the respective parties ascertaned and yie
and pras that the premises may be decreed to be sod
and the proceeds apportoned to the respective parties
according to their several interests but resists the
eompanants claim to any share of the rents hereto
accrued the ground that the assigns or repre-
sentatives of A. b. Howe have never performed the
covenant contained in the agreement between the said
Howe, on the one part, and Coady, Cahoon and Lake
on the other part, to fix price at which the latter
should have the option Of buying the share Of the
| former IN the building, or selling out their own.
During the argument of the il was treated by
counsel particularly by the counsel for the respondent
as If this was suit between A. B. Howe and Richard
Coady and Others the original parties to the agreement
of the 18th November 1851 but, to my mind, il is
In some respects very different II true that the as
signs or representatives of Howe the one hand and
OF Coady, Cahoon and Lake the other are subject
to the same eQues and only have the same rights
and remedies, the against the other that the orig
ina parties whom they now represent would have il
the suit was between them. But suit between the
original parties never could have arisen from the same
circumstances which lie at the foundation of the present
suit IT, at the expiration of the FIVE years agreed
upon, Howe had been still living, and being still pos
sessed of the interest in the premises that he had
at the date Of the agreement, ne had fixed price at
which he would either sell his own interest in the
building to COady, Cahoon and Lake, or purchase their
interest," and they had refused either to buy or SELL
then Howe mil ght have applied to this Court for assist
ance to compel specific performance Of the agreement
by the other parties. But the present had its ORR
gin in state of facts entirely different from that. Be-
fore the expiration of the of FIVE years. Howe had
assigned his interest in the premises to HegaFty and
Sea, as tenants in common Sea interest had passed
into the hands of the complainant and that Of Hegar
ty had been purchased at auction by John c. BulliOns
! the partner in business of Richard COady and,
the other se COady had become sole owner of the iu
terest which at first had belonged to Coady, Cahoon
and Lake When the proper time arrived for that pur-
pose, the complainant desrous and ready to carry
out the covenant contained in the agreement of the 21h
November 1851, by fixing price at which Mr.. Coady
might, at his option, buy out the interest Of HOwes
representatives sell his own. But complainant
unable to do this, because Mr. Bulons, his eotenant
the OstenSble owner in common with complainant, of
Howes former interest, refused either to unite with
complainant in proposing to Coady any reasonable
as buying or selling price, to leave the matter 10
the judgment Of referees replying to complainants
application, first by offering to fix which,
the face of it. was plainly unreasonable and finally,
by declining every overture made by the complainant.
The origin Of this suit then not the refusal of Goa
dy to listen to proposal from HOwes representatives,
in pursuance of the agreement of November, 1851,
for no such proposal was made to COady but the
refusal by Bulons, the co-tenant of complainant, TO
agree with him in carrying out the contract their
side.
have endeavored to lay bare the root of the conro-
versy, because, apprehend it must be upon the pc
cular feature of the case, thus presented, that Mr.
COady in his life time resisted and the respondent
resists, the claims Of the complainant.
Let us see then whether not the respondent has
assumed tenable position of defence Her counsel
argues the as if Howe the complainant here,
and was seeking the aid of Court Of equity to vary
the terms Of his contract, to relieve him from the
consequences of improvident bargain. by which he
had deprived himself Of the ability to carry out the
agreement Of November 1851 and contends that this
Court cannot grant the relief which the complainant
seeks to obtain But 1t seems to that this line Of
argument is aside from the real state Of the case, and
based upon erroneous premises. Howe is not the COM
painant in this case, does Montgomery who Is the
complainant ask US, as understand it. TO vary the
terms of the agreement between Howe and COady,
to relieve him against any imprOvdent act either Of
Howe, of Howes immediate assignee, from whom he
derived title, or Of himself
The compliments rests upon other grounds
The agreement of November, 1851. was not made be-
tween Howe, on the part, and Coady, Cahoon and
Lake. the other part for themselves alone, but
made well for the benefit of their respective heirs
Howes representatives, at the expiration Of the five
years, to agree upon price 10 be fixed the buying
selling price, and to propose the same to COady;
while, on the other hand it was incumbent upon Goa
dy to refrain from doing anything by overt act
cret colusOn prevent Howes Representatives from
doing their duty toward each other that he might gain
advantage and to exercise in good faith the option
reserved to himself by the original compact
But, says the counsel for respondent Coady himself
vast he real purchaser of the other moety of Howes
interest. Billions only the nominal purchaser.
When the property was put up for sale. Coady had as
much right to become the purchaser Of it any one
else and if, by reason Of this, the complainant got
into position Of disadvantage, that his misfor-
tune and Coady could not be blamed for avaing him
self Of the advantage he thus obtained BY the exercise
of shrewd business tact
Mr.. Bullions the Ostensible purchaser the deed
of conveyance made to him 50 far appeared
outwardly, he the real purchaser and, when adj
dressed by the complainant his co-tenant, he re-
piled in that capacity Although, as it now appears,
from the whole facts Of the case disclosed by the
pleadngs Bullions in fact but a nominal purchas-
err the property having been paid for with partnership
funds, and the amount subsequently charged to Mr..
Coady, to whom also q conveyance Of the legal title
was finally made
But, be that as it may, the rights Of the complain
ant we're the same and he not fairly dealt by.
That he found himself in position where he
ble as Of HOwes representatives,, TO carry out the
agreement of November, 1851, not the result Of
misfortune, negligence, or any want Of foresight, but
simply attributable to q want Of strict good faith
on the part of Mr. Buions, who held the legal title
and had become tenant in common Of the property
with the complainant. Buli0ns vas bound to respect
the rights of his eoenant and to cooperate with him
in dschargng in good faith, the obligations that rest
ed upon them mutually-the conditions which
nexed to their ownership Of the property. II he seed
otherwise and the complainant thereby injured
he had right to appeal to Court Of Equity to aid
him in protecting his interests sgninst bis co-ten
ant and . Court of Equity would not have suffered
any third party to obtain benefit unjust advantage,
through eousion with Mr. BullIopsl in fraud Of the
compliments rights. Nothing can be clearer than
the mower OF Court Of Equity 10 relieve the COM
ulainant under such circumstances as thessi ana 60
allow the respondent to resist the claims Of the
u. hat h. hnd not hllhllad