The Hawaiian gazette., 1876-05-10
HAWAIIAN GAZETTE
AN INDEPENDENT JOURNAL,
DEVOTED TO HAWAIIAN PROGRESS.
Supreme Court Of the Hawaiian ISL
ands--In Equity.
JAALES l. DOWSETT ct al, rs KAPHAU |
DEcIsIoS By JuDD, J.

smith street, Honolulu, Oe declared null an1
void
The petitioners are James l. Dowsett. an al
legged creditor aHd also mortgage of deceased, tb'
iuIestaie's administrator, Wahineaoha, widow
and heir TO one half uiestate's property, and Sa
rah Berger and Others. heirs of the other half.
The bill, as amended AYERS that said Booth
being indebted at The date Of the conveyance, Il
sundry persons, naming some of them, nude tn,
said conveyance with intent to deiraud and evadt
his creditors, and that il was fraudulent, without
good consideration and Rot bona .fds
II is not questioned that voluntary convey
auce may be avoided by antecedent creditors
though good as against the gruntor aud his heirs
A voluntary conveyance is not nullIty bu
binds parties aud priyies. 1t may be avoided by
any third persons whose interests are intended
TO be defeated by it." Randall vs. Phillips,
Mason 37S.
The her cannot set up bis title against the
voluntary alienee of his ancestor" jackson vs.
Gurnsey, 10 Johns, 100.
voluntary conveyance of chattels though
void against creditors remains good against the
partyhimself, his administrators and executors.
Osborne VS.. Moss, I johns, l6l.
The law is also plainly settled that O voluntary
conveyance, not fraudulent in fact, is good as to
subsequent creditors. Converse VS.. Hartley, 81
Conn. 372 Barton VS. Jones. Conn. lS6.
" A voluntary deed Is void as against antece-
dert creditors and not against subsequent credit
ors, unless made with u fraudulent intent.
liindes lessee vs. LoDgwortb, IL Wheaton, 1891.
d" Ii a voluntary conveyance, by man not
indebted al the time, Is bona ide and not made
with fraudulent intent, it is good against bse-
quent creditors" Sexton We. Wheaton, Whea.
ton. 229.
But as indicatedabore.tbe Ingredient Of fraud al
tiers the rule TO subsequent and protects
them. "Wherea voluntary conveyance nadea and
received with an actual intent to defraud The then
existing creditors Of the grantor, it is not bona
fde conveyance which can protect the grantee
against the claims Of subsequent creditors"
King vs. Wilcox, IL Paige, 5Sg.
conveyance 10 fraud OF The grantor's credi-
tors may be set aside and the land held to satisfy
the CLAIM Of one who did not become creditor I'LL
after the Conveyance" Q872) Pratt VS.. Cox.
% Craft (Yu.) $50.
"A fraudulent and decerllul conveyance
of properly without valuable consideration,
and with intent to avoid the right, debt or duty
of any other person, is invalid as to subsequent
creditors, as well as to those who were creditors
at the time Of the conveyance" Mclean w.
johnson, 43 Vermont, 48.
But such conveyance is good against the heirs.
" conveyance to deraud creditors is good against
the grsntor and his heirs, and is void only as to
creditors. For neither the granIor, nor his heirs
claiming under him, can avail themselves of any
fraud TO which the grantor was party 10 defeat
auy conveyance made by him." Drinkwater va.
4 Mass, 1853.
But it is not good as against his assiguees in
bankruptcy.
:" A conveyance of lands which is fraudulent
and void against the creditors of the conveying
party (within - Eliz., G. 5) is void also as
against his assignee on his Insolvency, who rep
resent5 the creditors, and the assignee may re-
cover back the lunds in eectment." Doe d. |
Grimsby vs. Ball. IL NJ. e W. j3l.
| AMI satisfied from the evidence Of Dayton,
Sol Thompson, W. G. Jones, Barney Fisher and |
others, that Booth was. in July 1868, coUsidera-
bly, embarrassed by debts and was being pressed |
quite vigorously by his creditors, several of whom |
procured judgment against him.
IL is also established by the testimony that |
Booth represented that the deed IN question (of /
July IS, 1861 was made to defraud his credit
Jrs. lie tells Dimond on the 18th September
1858. that the deed was a sham, no money
passed" He tells Jones in the summer of 1868,
hat he had by this deed 10 KapiIau, protected
liz place on Smith street, 50 creditors could not
et it; that Kapilau was person he could
rust"
At the time of executing the deed, Booth tells
Fisher, who was living with him, at Kapilaus
ouse at kalihi, that ne had made his property
ver to defendant, 80 that his creditors could
ot get it,
And it would appear from the testimony of
Iahoe, (wbo claims to be defendants brother,)
hut Kapilau also so considered it. He sResrs
hat 10 July. 1871, defendant told him that he
nd Booth e made the deed to cover up the place.
0 it could not be sold under mortgage" THAT
be $500 Consideration was put 10 the deed,
ut that no money passed"
TO rebut this, the testimony of John Naluahi
offered, to prove that the deed was for good
nd valuable consideration. lie swears that in
lay, 1868, he being resident in Honolulu, was
ent TO Kalihi by person (who is now dead) to
rOcure some herb to be used as a medicine, that
e, while at Kalihl, happened IN at the house of
.apilau, and saw Booth receive a bug of silver
loney from Kapilau and saw it counted, and that
was $500 aud was paid for the lot on Smith
rect, that no receipt or deed passed then, but
nat 10 July, 1868, he saw the deed in Kapilaus
ossession aud then he remembered what be saw
May, i. e. the passing of the money. This tes-
moDy though apparently so truthful Is SO strange
I'd improbable that it may we'll be doubted
belher, even if the money actually passed in
lay, the witness can be sure that it was the con-
deration Of the deed in July. Moreover, it is
lconsistent with Kapilau's admission to Mahoe; {
lie inconsistent with the possession of thearemi- {
az by Booth, which find continued until his
eatb, nor is it likely, il it was bona ride sale,
lat Kapilau would have neglected to record the
sed until after Booths death. He cannot plead {
norance of this requirement, for he was {
armed by McDuif of its necessity. q
Such circumstances rs continued possession {
ID want Of record, strongly support the aIlega- J
on Of frand.
In bauk of the q. s. vs. Housemau, 6 Paige
49, it is laid down where the graUtor after the t
iecution Of voluntary conveyance to bis sons, i
permitted to retain possession of the premises Q
the osteDsibe owner, and the conveyance is j
1t recorded, such continued possession is priBla
Gle evidence Of fraud as against subsequent o
editors who have given credit to the grantor I
ION the faith OF his supposed ownership Of the
operty." il
But in tue case at bar the grantor was deeply v
debt, avoiding meeting his creditors (see Fish. g
s testimony and the sale OF bis WaiaBae prop q
ty of Sept 1868, does not seem to have relieved L
m but it would appear that this sale was ne II
ssitated by his other debts, as the judgments o
ainst him we're not satisfied. L
10 fact, Booth was insolvent, if this Smiths Fl
Get property be left out of the question.
This conveyance, too, IS not to Booths wife, Il
Dugh it would seem from Mahoes testimony to 81
We been intended that Kapilau should be trus- Il
, for Wshinealoha, the widow. 81
There are many more points in the testimony b.
itch might be commented on at greater length.
lave arrived at the conclusion that the deed 10 re
estion was fraudulent and deceitfnl and with tc
considerations it is therefore void as against A
th aniecedent and subsequent creditors. Ii
D.. l. I