The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-01-21

and it does not even appear that he knew
that the plaintiff was the son of the orig.
inal owner. As far as words and conduct
could do, the plaintiff gave him cause to
believe that the vendor was the only one
having any interest in the land. A fair
price was paid The plaintiff was of full
age when his father died, and for eleven
years the vendor had lived with him on
the land, exercising acts of exclusive own
ership, by mortgaging portion of it and
holding the royal patent For thirteen
years after the sale, while expensive i'm
provements were made upon the land
by the vendee and his heir, the plain
tiff looked on and laid no claim. Both
the vendee and vendor, whose testimony
might have availed the defendant, are
now dead. The native custom of treating
uncles and nephews as father and son, in
respect of their mutual rights and duties,
might well have caused equities of high
nature to arise in favor OF the uncle in
this case having acquired full right to dis
pose of the land. At the date of the
death of the plaintiffs father, in lS59,
the laws regulating the descent of pro-
perty by will and ab intestato, and its
transmission by deed was so recent, that an
oral will or parole transfer of land would
have been extremely likely. When such
transactions have been acquiesced in and
acted upon for many years, they must often
acquire validity which the parties are not at
liberty to dispute. But however it may
have been with the plaintiffs ignorance
of law in lS49, it is very unlikely that he
remained until 1873 in such dense igno-
rance of his right as son to inherit his
fathers estate. His active cooperation at
the sale, his representation that the ven
dee was authorized to sell the land, and
his subsequent acquiescence, in full knowl-
edge of all the facts, continued for so
long time, lead me to believe that there
were transactions between his uncle and
himself, which in their view fully author
lied the sale. think the plaintiff IS con-
duct, and the results which have followed
in the changed circumstances of the par
ties, have equitably precluded him from
now availing himself of his former title
against this defendant. And if his con-
duct were insufficient to constitute legal
transfer of his title, it precludes his as
serting it to the injury Of those whom he
has misled, who relied and had right to
rely on his assertions, and whom he has
so long permitted to rely on his assur-
ances, that it is now too late for them to
be reinstated in their former position.
The case comes fully within the rule
adopted by this Court in Banco in Kauhi
VS.. Liaikulani, Haw. --, that a
party is estopped by course, which if
not taken advisedly was taken "negli-
gently in disregard of others who are rea-
sonably authorized to rely upon them"
If the plaintiff had authorized the vendor
to sell, he ought not to complain now
that the authority is not shown by deed,
and under our statutes this would be no
objection to his having sold his land to
the vendor. If he had not done so, and
wilfully misled the vendee, he has no
ground to complain that he has defraud-
ed another If knowing all the facts, he
was ignorant of his rights, (of which ig-
norance there is no evidence), then it is a
case where of two innocent parties he
must suffer who caused the injury which
the other was powerless to avert. This
view will be found to be fully sustained
by the cases cited in Kauhi vs. Liaikulani,
Davis VS.. Brewer, 8 Haw. -, and in
the citations above made.
The plaintiff excerpts to the foregoing
rulings admitting the defence in this ac
ton, and holding it to constitute a bar to
his action, and his exceptions are hereby
allowed. ALFRED S. HARTwELL,
Justice of the Supreme Court.
Honolulu, Jan. IA, 1873.