The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1876-06-14
HAWAIIAN GAZETTE
AN INDEPENDENT JOURNAL,
EVOTED TO HAWAIIAN PROGRESS.
Supreme Court of the Hawaiian Isl.
andS----APriI Term. Is7G.
JAMES, DOWSETTe t al, rs. RAPHAU.
Il EQUITT.
OPINION By HARRIS, J.


This is bill in equity praying that deed OF
conveyance OF John Booth. deceased, TO detenu-
ant dated july % 1865. of certain premises on
Smiths street, Honolulu, be declared null and
void
The petitioners are James l. Dowsett, an a.
legged creditor and also mortgage OF deceased
the intesiates administrator, WahineaOha, widow,
and heir to one-half intestates property, and Sa-
rah Berger aud Others. heirs 10 the other half.
There is no proposition more clearly established
than that 4 voluntary conveyance binds parties
and privies. See Jackson g. Garnsey. 10 john
son 1870. Osborne vs.. Moss, johnson, l6l, ct
passini.
The law Is likewise plainly settled that vol
untary conveyance. not fraudulent IN fact. IS
good as to subsequent creditors, though void as
to antecedaut creditors. llth Wheaton. 1891
Kinds lessee, vs.. Longworth. Sexton -. Whea-
ton. 5 Wheaton, 22g, and host Of other anIhori-
ties.
But If the conveyance is meant TO defraud ex-
listing creditors IL will not protect the grantee
against Subsequent creditors. King W. Wilcox,
II Paige, $50, - Graft, $50 (Na) 43 Vermont,
As.
SO that admitting that the. conveyance under
consideration, is \ voluntary one and intended
to defruud creditors, it would be good against the
grantor's heirs and the question would arise as
TO whether Dowseit is creditor. The settle
ment Of which question is not particularly essen
tial TO this case IN the conclusion which we have
reached. DOWsett had a claim Of 5000 which was
secured by a mortgage Of date antecedent TO
the date Of the record Of the deed in question.
and therefore is not affected by the deed beyond
this mortgage il does not appear that DoSsett
was q creditor Of Booths at the time OF Booths
decease. but he made some payments alter
Booths decease which we're voluntary payments
aud amount 10 $3.50. Of which SS5 are for
mourning Tor the widow and funeral expenses,
ihey would be binding probably on the admins
traitor, If he had assets, but are hardly such as
would entitle Dowsett TO relief rs a detrauded
man by bill to open up and examine the con-
Yeyances made by tue deceased 10 his lifetime.
And at all esents the effect could reach no far
Their than to charge the estate with such sums as
might be recovered from the administrator, 10
this case very inconsderable sum.
But the bill asks that the deed in question be
adindged void and delivered up for cancellation.
Il cauuot be adjudged void by reason OF fraud,
since, as has been said before even if fraudulent,
it Is good Us against the heirs OF the grantor, and
the other petitioner is not entitled to this relief
But in order TO bind the grAntOr or his heirs. the
deed must have been delivered in the lifetime of
the grantor; SO that the question arises whether
the Deed was delivered by the grantOr to Kapi-
lau the defendant.
The deed is dated July 29Ih. 1868, was ac-
knogledgsd before a notary public aud was never
recorded until after Booths death. Ga the 18th
Of September Of the same year, it was 10 the
possession Of the grantOr Booth. for or that day,
Booth mortgaged the property to Mr.. Dimond,
and Mr.. Dimond saw the deed in Booths hands
and asked him about ii aud received an answer
that it was u sham. On the Dist Of October FOL
lowing. Kapilau came to the police station-house
in Honolulu. claiming some personal property
taken from the property in question on an exc
cutiOu against Booth, aud Booth came with hun,
and this deed. now the subject of controversy.
was among the papers that Kapllau had. II Is
very significant that Booth and kapilau came to-
gether Mahoe says that this defendant kap
lau. told him that be had paid no money for the
land. aud that the deed had been made so that
Booth could not mortgage the land, and that the
defendant further told him that the deed had
been taken from him by Booth aud torn up. 1t
is made to appear conclusively, that Booth was
badly in debt aud that be lived on the premises
until the time of his death in ike manner Us he |
had done prior TO the making Of the deed, and
the deed was not recorded uHtil nearly three
months after Booths death as has been said be-
fore.
Mrs. Long testifes that the plaintiff told her
that he got the deed from Booths trunk after
his decease. on the night OF his decease.
Against this there is the testimony of Nalua
hi who testifes that he saw plaintiff give $500 to
Booth in May, but saw no deed, but that after
ward. in July. be saw u deed in the hands Of the
defendant Now the deed was acknowledged be- |
fore the notary public on the 29th of July, and
Blrney Fisher took it after it was acknowledged |
TO be stamped. He says that be took it from |
Booth and returned to Booth, so that if Naluahi |
saw the deed in Kapilan's hand, il must have been
10 the very last days Of July. and it is very evil
dent that in September following, it was not in |
his hands.
Weighing the testimony, therefore, as careful |
ly as possible. we must conclude that il the de- |
PENDANT ever had the deed in his possession, it |
was for purpose of shetering the property from |
Booths creditors and was returned to Booth |
when that purpose had been served, and the deed /
was never delivered to defendant with the inten-
ton OF passing the estate to him.
The decree OF Mr.. Justice Judd is therefore /
confirmed
CHAs. C. HARRIS,
A. Francis JUDD,
Justices Supreme Court. |
s. B. Dole for petitioners, f. Preston for res
pendent.
Honolulu, May II, 1876.