The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1860-11-08
-tae,. Deezsry N ,h. connection carefully to analys re

Morisoa L he -antsd to 6uy the land. hey had some con
AZ ssa.lrSs sss.T : M "a !. her p v Z a. ;h AZ tine Dayii
1s1@i Aontso1 b.. arc ne i.o4 S@s- He all he "a as %.
1890 acre, AMI Il David cJaciuied 20 bargain via him. lie
the rate q haIfz dollar an acre Morrison also stated, a. ihe
sane tine that til land ~as Ht : vsluAsie N account u there
THAT va = gssi iaUd fE zr4Ein= puroses' th- answer #as.
nenuoDei in the c5aver-Atfon Tat : ~4s MT very sgsl fr
snAzHk PlrPH q 'R1ee--+' % -. Iav - -
asS-i MOrr-1n Z he susE % any BODY Else EhJ wished % Uur-
- wsim-a or aDauf there TIA; 1ouA y likely 20 buy The land.
N1rn-sn ansserSi he I'D no; sn2- o. any I-I-an -n' Ha,4el
fore or 4re- Davjds proposition % Morrison TO buy Tie con
-4ys ihe eonver.l,lsu IN rzari 20 The number q aers - suit
ss9asas q ma a Tefsd = i1 ire ~ .1,-T4a-nIyr ne
IL LAad q P@auhsu, Z oniy hssrt there vas a H.2ris-se .
he g4Aa;itv 6elard - r-n.ioa@d. but / eanno. -ay zhich
t - - 80 - -,
-ay whether ths dGdars were m~niioned arr - he @Sr-s
e4Hnat sAy whether Morrison aid anything about TIE hni act
having been surveyed. he might have done -, bot ! don't
kBo- HA; hahaHl Z. Iresent ne Ihys a. u ls c.ns
vers1uon- hahauG say that : ~sn- 70 Hawai- ~th hAaAaIA
IN $3.50 AID that they visited Hlo on the same tour, and that be
I- 80 - "a ~ - - - - he -.moI.,--teg web KaIa.
ka4z sr seIirv the Lard. i then remarked 70 Kalakaua thst
I had sold a land 10 Kau. a very poor and rocky land, fr 800.
Kalakaua said 70 me, This is cheaper because there i only
twelve hundred acres. 1 then told kalakaua. saying, that 1
have heard that the land on this side i all good land but on
thu Kona and Eau side il xas all rocky Mr. Morrison a
there and heard the Conversation Then David addressed himself
there we're on that land Morrison said there we're ten or more,
and thrn enteayored 70 PerscAde kslAkAaA not to ell asi
there was remsiaing not taken up in kuleAnAs Morrison said
there was from 12O % 1870 acres perhaps Then David in
:.uesei his clerk to preparethe papers 70 be sent somewhere to
The testimony Of Judge Austin Is to the esec; that he VS..
present az Mr.. COn-y's OA5ce. wh-r- the agreement for a deed
saw. I uDder.,ad az TIA: tine that the land had been sold
fr $500 70 Morrison and that CoHey vas drawing up the agree
ske Iaui AZ TIA. time. Don't think I heard any conversation
80 Kals.ars ana Morrison beforr or after that time 1
saEd nothing In negotiating the release. excep. that #; vas q
large land In the ero-sexamina tion he says. = / had several
interviews With David when l was negotiating the release in
January. Nothing vas said a; that time about any definite
toned by David az any time. Nothing ~as ever said by David
at any time about the land being sold at any pIise per sere- l
relation 10 the release from Mr. Dowseti. be says Z" after
wards saw DoEs=ii. and after considerable negotiating he con-
sent-d thaf II he received 500. or the amount q thu mortgage
Thi-h b. had actually taken up. he you'd 5el-ase X DsTd
had received before and ! gave so 90; ofmy PICKET and Eaye
u 20 Dozse:t % secure the title lie said he believed E~ Sas
dong u blind ! sad i vas hrss iAna; sIepDHaI 70 o
a large land Psaul-e vas TsT9r'-d to b a !arte I.qh, !
.as- l n.yeI LyaIl = c. !. ~ ~
The testimony q Kaii ! % The effect that he saw Sr. Nor
rson on hs return from Hlo, and IN Conversation he stated
good bargain, fr he thought the quantity vas between 50 and
Kahina srears tia. Wood and Kahanu we're presen, ST the
time that Morrsou Was az ksiakaua's-
tine Hfi he : o c ave- a re- rsiea Sc tie l. ha5 "a. treated as being Ia or
1900 acres and that he gave il the quit claim surprising il 10 he
The testimony q M Lo= is that the distance from the sea
tae; q land and iha, Nj Parker. purchase embraced four.
hf;h.' aai be i q opinion ih1i = NJ Pagker iHd NOT lived
price. FOR amueh larger price than Mr. Moris.n gave for it.
NoTrIson n -NauliuaLiyu slii - n more LiEl Il4n ne sup
He estimate. the lanthy at 10000 acres hut he say. it il.
tend TO give an opinion with any accuracy.
Mr.. COney says .; The time the agreement vas made there
was NJ quantity stated, Mr.. Morrison stating that =. the land
had not been surveyed and Ne don,t kn2w hog many acre there
eiuied in The Parehase. He testia~s that he saw Wood and
TO see Kalakaa never saw Kahanu before seeing him al Hilo.
There i a conflict q evidence in relation 20 their presence az
There was tie evidence Of Pugpuu. who sEears that Wood
were negotiating. AMI thai he ! hahiuu 20 into the house
Will. ;hey were there.
Tbs IS an illustration to some eEten; Of the difference OF
weight 70 be given TO positive and negative testimony. The
Court have very carefully considered its merits in connection
With al the circumstances q TIE case and will apply TO it the
principles flaw which should govern Courts q Equity.
the per.on Who i most be5rdttei BY the sale is in a situation
to he suspected oft, IL a fraud Is actually committed lfsueh
the value q the Land. and which from being within his own
IN by TIE purchase. and they turn out to be false. the sale i.
void, whether h believe th-m % be true or noi-tsmith IS:
Bsbeoek 2 WOOD AID NiDts, 80 Ties arc rec"sn.r-d
principles. In this case the Respondent made statements in a
matter material to the value OF the land. TO Wit: a. to it, guam
NY, ana u : Car nat o. TS 9aA = ~ VA, va = :, mr. ~rnln h ms
konohiki. and the daughter u her. who lad been 50 before her,
am AMI an and zb y na.t SaVe hSI a c,tlrsI EpowIeir. 81 o. Iits n.
extent. His residence and these relationships sforiin- such
means ofs reasonable Judgment would have very naturally
impressed any one Nitha ssrong CONVICTION ofan aTproHhma-
ting accuracy ofst4tement
chasrs. regards the doctrine rs now well established that a-
tuAl misrepresentahon avoids The sale even though made
.ays tLat \ seIIer i bound 70 act With the utmost cool faIh.
AMI II he Musicals the purchaser by a false or mistaken state
ment a. to any one essential circumstance, the sale is voidabIe.
/ cannot entertain a doubt that the sale was made upon the
credit given to the representations made by the purchaser Of the
fRnd ~ hi s f.n All Il b - m 11n. b a.. bbaI ' cbsrre :" 81 ~ ~ ana ai
fr many years, AMI I seems incredible that they should not
-b5rb "a, III ba1nIarv. :, that th-re wer. several hundred
LSI - - - - - - - "a. - b
interior In The ess= to which 1 have referred, Judee story
says that he who misleals the Confidence % another by false
statements in the substances ola purchase should not profit
by It.
Il very eIear that there vas grea, inequality in their sit
uations-;he one with every means Of knowledge fnum his res
.ti Te.iiiins N 4 Moasiuiia. and re relying upon the respondent.
who vas the husband other who had charge Of the land. and
HIo. on the subject matter q the land and d-siriOus Of making
a sale on account q the mortgage to sr. DoSsett. Although 1
DO not regard the rsponirut as acting in = hi!ciary capacity,
and would nos avoid The sale technically on that account s'll
full AMI fair statement. and one which he knew to b true, Cr he
statement Tia, the tract contained y or 1900 acres, WHEN on his
return from HID h stated that he thought he had made a good
and in July 6lBpwf.z lie sriies % Mr.. Gaskin that he has be-
come a great ~snIhuIler Of fifty 10 sixty thousand acres. and
ne -; tint ~ the rrsrondent's testimony i S0yOOO.
and 0feoarse i vas 4 mi>ia'eHa=Ht. and that lie must have
zion. the Circumstances 70 which l have referred already. are
1t very clear from tie eyiisnes q Mr.. uo~sets that the
complainant supposed he vas selling tie quantity q Enl alieg-
re- ~ ~ 55ty q he r-syCrdeat wben he discover-I tha;
hts expectation Shen be purchased, especially when We take
into consideration the mode and manner iu which The bargain
was made and the relationship in which he stool to the COM
taa,nar, ana e-I< sfs 10 20 ,SH er,.I a.. ~ Nn' - ~ 80 10 20
equally innocent and equally mistaken. Tie Law would K aside
Bro. c. c. 80. tie doctrine Is he'll HAT a conveyance obtained
from persons uniformed q their rights i set aside though
there vas no actual fraud @ imposition. In ;ls case il j. very
clear that the complainant Sa- uniformed q his nights. and II
there was no proof . misrepresentation. in a bill N Equity.
making this the ground % relief 4 Court % Equity would set
ASIDE he sale uni=ss the party vas clearly AMI distinctly put
on h- guard. The most common mistake iu the sales % real e.
;A:s 7lates o the quantity Ofiaui conveyed, - compared with
the agreement Or iu-eut g the parties upon that suffice; and /
regard the doctrine O. be this, that when . contract has heen
-cousummat-I without any fraud, misrepresentation. or conceal
nsnt A. - the quantity. the Court Kill MT inquire whether
there ha- been \ mistake upon that T~5nt-lNedeu - Ford1,
, Paine. 81 - when = purchase - made and a deed given
FOR - many acres more uT E-s. and Z turns out that there "a
les. hy actual survey than tb- estimated quantity. the buyer
Wfl no: - relieved. Bot vh-u a tract o. land Is sold FOR a sum
IN gross. tie b.uuIzr-s control the description u the quantity,
neither party can have 4 nm against the other for Al *
crss or Deficiency. unless 10 J. 20 great a. TO furnish evidence
% fraud or mi<r-preseutatou.-fI IILHsrd on Vendors aud pur-