The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1878-03-20

held the land under lease. which has not yet
expired from the guardians Of VIM. @. Lunalilo,
Of whom the said Kanaiua was one.
Hartwel for the plaintiffs:
There is paramount hlle in the Trustees, aud
the deed from the defendants intestate is now
useless as against them, as far as anything is
conveyed thereby.
The covenant TO do or cause to be dous such
other acts as shall or may be necessary to assure
to the defendant the title purporting to be con-
yeyed to wit. the fee, can only be enforced by
payment TO the Trustees Of the money required
TO extinguish this title. That covenant may be
enforced in Equity and by the express terms Of
the deed it not otherwise may be enforced
against the administrator alone.
See Storys Eq. Jurisprudence, 3 7l5, T37
| (a). 749 (c).
Rawles Covenant for Title, p. 1875 1913, GAS,
CSC.
t Sugden on Vendors and Purchasers, 766.
The heir would not be necessary party under
our statutes and practice, il the deed did not ex
pressy aud solely bind the personal representa-
| tives.
See Story's Eq Pleadings "a l67 and 476.
Civil Code, 1859.
The decree is not against the defendant de
b0aiS sHis aud. il made, would be satisfied by
HIM as in any case OF u Judgment debt, namely
by resort to the realty through the Intervention
of court.
Preston for defendant.
Per CiTidHl:
The issues presented are first, whether the
action is properly brought against the admins
/ traitor aud secondly, whether the equitable doc
trine of specific performance is applicable to the
facts Of this case. | first consider the second
question.
The strongest expression in the authorities
/ cited by the plaintiff is that from Sugden on
| Vendors and Purchasers p 766, 1lth edition.
g Ii the title prove bad and the defect can be
Supplied by the vendor the purchaser may file u
/ Bill IN Equity for n specific performance Of the
| covenant Tor further nssurance-and vendor
who has sold under bad title will under such
covenant. be compelled to convey any title
which be may have acquired since the convey
ance although he actually purchase such title for
valuable consideration But Rawle, Cove
uant for Title, in quoting the passage remarks
that it " is language which unless carefully con
sidered might be misunderstood" 1t is to b,
observed that the title which defendant MAY
be compelled to give is one which he may have
subsequently acquired. Sugdeu also states ..
| 767, - Under covenant for further assurance
purchaser may OF course require the removal OF
q Judgment or other incumbrance' thut Is. may
be compelled 10 pay out money to secure the
vendors title. The essence of the doctrine OF
D
cases where u compensation in damages for fail
ure 10 contract would not from the nature of
the case, be adequate or equivalent. to the ex
eoution OF the contract, n where 1t is within
the power of the defendant to do the specific
thing agreed to be done, or as in the case of real
estate to release title which he has acquired
then, equity will compel him to do the thing
agreed or to convey the title which he possesses.
In the case before Us the defendant has acqur-
ed no better title than when the conveyance
was made, and on the other hand 1t is within the
power Of the plaintiff to acquire the title desired
by payment of certain sum OF money. Does
this come within the doctrine of specific per
formance. Judge Story, Equity Jurisprudence
TIC, says, " The ground of the jurisdiction Is,
that Court of law is inadequate to decree a
specific performance and can relieve the injured
party ouly by compensation IN damages, which
in many cases would fall far short Of the redress
which his situation might require. Whenever,
therefore, the party wants the thing in specie,
and he cannot otherwise be fully compensated,
Courts OF equity will grant him specific per
formance." In Section III, Courts of equity
will decree performance Of q contract for land,
not because OF the particular nature OF land but
because the damages at law which must be cal
culated upon the general view of land. may not
be complete remedy to the purchaser to whom
the land purchased may have a peculiar and
specific value" Likewise in Section T26. respec-
ting contracts to build " There can be a full
compensation at law in damages, aud it has been
said that no such covenant ought to be enforced
specifically" In Section "a (b), e" If Courts of
equity refuse to interfere. they inhict no in
jury upon the plaintiff for no decision is made
which affects his right to proceed at law for any
redress by way of damages, to which be may be
entitled"
Applying these principles to the case ut bar,
it will be seen that they do not support the
plaintiffs prayer. The defendants estate has no
further title to convey. The plaintiffs may pro-
cure the title they desire by the payment of
certain sum ot money, and IT they thereby suffer
a wrong, the remedy is not by this proceeding.
The nature aud extent of Kanainas title were
well known to all parties at the execution of the
deed namely life estate. The authority of
Sugden, above cited, that the purchaser may re-
quire the removal of a Judgment or other incum-
brance, cannot be extended to requiring the
holder of life estate to purchase the fee. BY
the revised Statutes of Massachusetts Chapter
80 6-deeds of conveyance are construed by
the legal rights of the parties II tenant for
life conveys by deed in fee, it is construed as
deed for life. So if one tenant in common
convey the whole estate it shall be intended Of
his part only. unless the contrary intent clearly
appears. Without such a statute it must be
considered here that the form OF conveyance
of the fee the plaintiff purchased what Kanaina
owned, the life estate, with his covenant, that if
he should hereafter become seized of any greater
estate he should execute release of it to them.
He has not acquired such, but the plaintiffs may,
and it is for them to do so. and seek their
remedy in damages, if they have suffered them.
With this view OF the main question at issue
it will be unnecessary to consider whether this
bill should be brought against the administrator
or the heir.
The bill IS dismissed with costs.
Hartwell for plaintiff; Preston for defendant.
Honolulu Oct. 1877.