The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-03-31

without which allurement they would not
have signed?
/ see no necessity for any power of at
torney. The parties were all residents
here, well known, easily accessible and
not numerous. Their claims to these
lands were notorious.
It is urged by the defendants counsel that the
plaintiffs must have known Of Lawrence's author
ity to SELL because there we're certain proceedings
in the Probate Court in the estate Of Victoria
Kamamalu in which Lawrence appeared as the
attorney for the heirs OF KaleiheaDa. | do not
regard this as of much force for no public notice Of
this hearing was made by advertisement nor we're
the parties themselves present Lawrence signed
as attorney for the heirsincluding w. Austin, for
whom he had no authority whatever, and though
the price agreed upon for the lands was $1,000,
the sum Of 5000, was retained on account Of w.
Austins not signing the deeds
1t would seem that the notoriety OF the former
suits against Her Highness Victoria's Guardian.
and the unusual circumstances Of their having
constituted an attorney 10 fact, though residents
in this kingdom ought to have put the Admins
traitor or whoever represented the Princess estate
on their inquiry. 1t would have been an easy
matter to have ascertaned from the parties them
selves if they willing to sell at this extreme
ly low price.
The strongest point in the defense is the order
put in evidence 1t is in these words:
Honolulu March End, 1869
HoN. A. J. LAWRENCE,
Local Circuit Judge, Maui
Sir. please pay to Kaunua (w.), or order the
sum Of Six Hundred and Fifty Dollars out Of the
proceeds of sale Of Heumoa and Kanewai.
L aopuA
..,, (sro,.p9 k Ssssss.
ENDORSEMENT.
Honolulu April 2sth, 1869.
have Five Hundred Dollars in my hands be-
longing to these parties who signed the within
order, which am willing to pay on this order
when they will give me receipt in full Of oil de-
mands and accept this order for the above amount
subject to the conditions above specified.
(SIdNED) AND. J. LAWRENCE.
1t is well settled principle of Law that il q
person, with knowledge Of the fraud. acquiesce
in the contract expressly o. do any act importing
an intention to stand by it, be cannot afterwards
avoid it. Story, Contracts S497.
Does this transaction make out case OF ac-
quiescence in the fraud?
The date Of the order ls March 3D. 1869, more
than year after the power Of attorney was Civ
en- to Lawrence and undoubtedly after the parties
had knowledge Of Lawrence's fraud on them, if
fraud it was. Mr.. Widemann testifes that he
wrote this order. acting tor Kaualua, the payee
and Interpreted it to the parties aud thinks they
understood it, but did not take any particular
pains to make them understand it, nor did he tell
them they would lose their rights in the lands if
they signed the order.
The witness states that these parties had come
to his Office to pay an amount Of money which
they owed his principal, Mr.. Spencer, and he. as
that they had borrowed the money
for the purpose from Kaualua, got them to sign
this order that she might have some security but
it appears that on February q. 1869, a few days
previous, these parties had given a note to Kaua-
lua for this very amount of $3.50. and had eXecu-
ted mortgage in her favor on the very lands now
in question and on some other lands on Hawaii.
and their acknowledgements to this mortgage
were taken the very day this order was signed.
Though this would be very strange transac-
ton among intelligent people, yet we must remem-
Der the readiness with which old natives sign pa
pers, not clearly understanding their import. 1t
seems to me that they must have confused this
order with some of the other transactions that
we're going on in Mr.. Widemann's Office at the
time and did not intend by this to rutify or &C.
1uiesce in Lawrences SALE for all their other acts
and words clearly show no such intention.
Lawrences acceptance OF the order being willing
10 pay the sum OF Five Hundred Dollars on con-
1ition of the parties giving him receipt IN full
Of all demands, shows that he deemed their dis
charge Of some value to himself; but there is no
evidence that any effort was made to procure
heir discharge of Lawrence.
l am aware that great caution should be used
BY Courts of Equity in exercising the power OF
ordering solemn instruments affecting real estate
10 be delivered up for cancellation, and tits mat
Ter of congratulatiOn that the courts Of this king
ION have only twice in the last ten years exer-
cised this power.
In this case | cannot avoid the conclusion that
he power OF attorney was obtainsd by fraud. 1t
must be remembered that Lawrence occupied to-
wards these parties the relation of attorney
icitor to clients, and equity would iuterpose to
leclare transactions between them void which be-
ween other persons might be held unohjectiona-
Die. Story Eq. Jur. 1910. He made use OF bis
confidential relation to secure power of attor-
ley utterly unjust and inequtable for it gave him
he power to sell their lands for any sum however
Insignificant and inadequate, and was in its terms
irrevocable Hntil the objects for which it was
,iven shall be accomplished by him.
1t would do violence to my sense Of Justice to
llow such transaction to stand, for if Lawrence
lad not been inclined to sell he could hold the
cal estate tied up by this power so long as he
ved and thus deprive these parties Of their right
# alienation.
A decree will be signed ordering the power OF
ttorney TO Lawrence and his conveyances under
!, to be delivered up for cancellation.
A. FRANcIs JUDI,
Justice Of the Supreme Court.
A. s. Hartwell and W. @. Jones, for plaintiffs /;
I. H. Stanley for defendant.
Honolulu, February Goth, 1875.