The Hawaiian gazette., 1871-09-13

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had come to be in charge of all Antone's lands
to manage sell or lease them at his option. and
calling upon all men to come before him and not
before Antoine June l5 1868, Antoine gave to
one Ami lease Of portion of his house lot for
one year, with privilege Of renewal for six years.
by indentures signed by himself and Ami The
respondent was aware that this lease was applied
for and that it was executed, and did not inform
the lessee that he claimed to own the lot. The
respondent owns a fish pond at Kalihikai, Of
which Antoine had the profits for three years
placing native in charge who paid to him its
proceeds, $500 year for three years, from 1860
to 1863 Antoine, with his wife, wiles father
and sister lived on the house lot until his DEATH
and some six or eight months before his death,
declined to sell the kalo lot. on urgent request
from Mr.. Everett who desired to buy, stating as
reason for not wishing to SELL that be required
the land for the support of bis family He was
repeatedly known to speak of the respondent as
his agent, but was never heard to speak of having
sold his land, except as appears in the evidence
OF Makalena, who drew the deed of April 10,
1865 and says be read and explained its contents
to Antone, who had previously requested him to
draw this deed; that he suggested that some
consideration should be expressed, whereupon
Antoine said he owed respondent $500 for four
years rent of the fish pond, and that after the
deed was drawn, read and explained, Antoine
approved it. After Antone's death, his widow
and sister went to see the respondent at his
request, talked with him about their shares of
the property, and were told to 60 back and live
theresa5 before until the widow married again,
when her husband must take care Of her. No
acts of ownership on the land were performed by
the respondent during Antones lifetime, except
as appear in Komo's evidence that Antoine told
him respondents consent was necessary before
he could execute the said lease. The only ex-
PLANTATION of the said notice Of respondents agency
of Antones land is in the evidence of the woman
who testified that she was sent by Antoine, in
1851 to ask respondent to see him about his
Manoa land. and that the newspaper notice was
concerning that land. The day before the deed
of April 10, 1865, Antoine had q talk with the
respondent, at the house of the latter, in the
presence Of Makalena who drew the deed, on the
subject of sudden Deaths and the propriety of
making their property over to each other to
avoid trouble after death. Makalena is not sure
that Antoine felt that the respondent could sell
all his land the day after this deed was made, and
need not wait until after his death he also states
that he heard after the date of this deed THAT
respondent was Antones agent He says he
thought Antoine intended gift of his land to the
respondent.
The three lots conveyed by this deed were
worth as follows, viz. The Kalihi lot, purporting
to be sold by respondent to Antoine in 1860 for
$500 the house lot worth $1,000 in 1860 and
81 300 now; the kalo lot, worth in 1865, $3.50.
The year after Antone's death, both the complain
ants and the respondent paid the taxes on these
lots. The respondent in his answer, says that his
newspaper notice of agency referred to Antones
Manoa land, and was in consequence of acts of
trespass committed there, greatly to Antone's an
DOyanCe; but it is not shown that Antoine had
any interest in land at Manoa after his convey
ance of Jan. 80, 1866, or that he ever suffered
from acts Of trespass on his land The respond
ent, in his answer also suys that before leasing
his fsh-pond to Antoine, he had leased it to one
Keliiopunui for 5000 year; bat this same Ke-
liiopunui testifies that he never had the pond
from the respondent, but was placed in its charge
by Antoine during the three years preceding the
death of Kamehameha ". in 1863. None of |
Antone's or the respondents acquaintance ever
heard either of them speak Of the sale except as
already stated by Komo and Makalena The
Registrar merely asks natives who acknowledge |
instruments, whether it is their signature, and if
the paper is correct? There is no evidence that
Antoine ever disagreed with his family or showed
any ili-will towards them, or expressed any de-
sire to confer special benefit on the respondent.
On these facts, it seems clear enough to my
mind that Antoine never intended to convey the
fee of his lands to the respondent, unless by
species Of trust deed. 1t ia not claimed that the
was made from love and affection, but
for previous debt of $500, on account of An
tones use Of respondents fsh-pond; debt not
not shown to be over 5000 Why should An
lone, in 1865, merely to pay this debt, convey not
1nly the Kalihi land, which respondent says be
to Antoine in 1860 for $500, but other
and Of at least S225O in value, being all the land
be possessed, thereby disinheriting his heirs 1t
requires proof of clear reasons for such an utter
y improbable and reckless course, to make 1t
ieem even probable or the act of sane mind
The $500 debt is not proved, and the 5000
bown to have been received by Antoine from the
proceeds Of the fsh-pond were as likely to have
jeen in payment of the note as is the deed of
Sept, 1860, executed before the note fell due
md never shown to be in Antone's hand, or
o refer to land which he ever claimed to own.
t seems far more natural inference that this
was not completed by delivery. If it
we're conveyed when the need Of re-deliTery of /
he deed in 1865 on re-conveyance, unless the
after transaction was a deed of trust?
The notice Of agency Is not explained. If tres .
asses were committed on Antones land in Ma !
oa in 1867, or if he owned any land there then, I
! might and ought to have been shown how II {
be respondent we're authorized to sell or lease
Antone's land as he says he was, he knew very
Tell, being man Of experience and intelligence,
hat some power Of attorney was requisite to
uthorize him to execute leases and deeds for /
Lntone. He shows none. however, except in the b
ocument dated April TO- 1865. s