The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1878-01-16
Supreme Court of the Hawaiian Is.
lands, Oct. Term. 1877.
JOSEPH NORRIS Us. P. PETERO.
Judd and McCully, ]. J.

Opinion of the Court by McCuly. j.. upon
questions reserved as Der the following state
inent
In this cause the jury we're directed by the
Court TO return verdict for the plaintif-for
$780, amount of the consideration expressed in
the deed upon which the action was brought
Sl6S.75. amount of damages and costs paid by
the plaintiff 10 the action of ejectment and $50
counse's fees paid in that action total S36S.I5
subject to The opinion OF the Court upon the
following reserved points:
LIST. Whether the judgment obtained against
the plaintiff by consent is good and valid judg-
ment against the now defendant; the plaintiff
having given the defendant notice of the action
and requiring the defendant to defend, and be
refusing to do so.
2nd. 1t being admitted that the defendants
grautor was entitled to dover interest in The
land whether the plaintiff is entitled to recover
the whole or any Of the purchase money?
3rd. Whether the defendant is entitled to
have deducted from the damages or interest the
value of the stones, sold by him, taken from the
land before the ejectment suit ?
4th. Whether in this action the defendant
cannot show different consideration FROM that
expressed in the deed
The above points with all the papers in the
cause are hereby certified to the Supreme Court
in Banco at the present term"
BY the said papers it appears that this is an
action on warranty covenant in deed from de-
tendant to the plaintiff TO recover the purchase
money paid, and the amount OF damages suffered
| by judgment recovered in an action of eject
ment ut the April term.
The first reserved point raises the question
whether the judgment obtained against the
plaintiff is valid, and the Court is thereby re-
ferred to the record of proceedings in that case,
by which it appears that one Naa W., her hus-
band kaaua joining, brought action of ejectment
against the present plaintiff. No answer was
filed, but on the 4th of April the following
agreement was filed:
Consent is hereby given that judgment for
the plaintiff be entered herein as prayed for. and
that damages to the amount of one hundred and
fifty dollars for the detention of the land be
awarded to the plaintiff
"Sgned Joseph Morris, by Cecil Brown,
his attorney;
"Signed E. Preston. plaintiffs attorney.
Defendants counsel now claims that this j udg-
ment is invalid, because made by consent oil the
attorney without authority in writing from his
client, that 1t is not within The power OF an at
torney at law to bind his client to a voluntary
judgment. He cites section 1869 of the Civil
Code: The practitioners SO licensed shall
have control to judgment and execution Of all
suits aud defenses contided To them provided
however, that no such practitioner shall have
power TO compromise, arbtrate and settle such
matters conhded to him, unless upon such spe-
cal authority in writing from his own client.
But in the present case, Morris does not object
to, but confirms the act OF his attorney in this
behalf. If the judgment would have been valid
II Morris had previously given q written auth0rl-
~ 10 do what has been done without it, and
which he ratifes, it is difficult to see on what
grounds third party shall be permitted to claim
that it is invalid. The rights of the third party
this defendant, are those of the covenantor in a
deed, TO be notified of the tendency of the &C
!. ton against his grantee and to be called upon
to defend. This was done in this case. II
! Petero had come in he might have made The
several points OF defense or in diminuton II The
a@ount Of damages which he proposes 70 ME
ii the judgment shall be opened. 1t q
pear that there fraud or r..dslou on +
plaintiffs part or on the part OF his attorney :
not proceeding to trial and setting them ~
Morris being sued in ejectment. aud it bell,
shown that the claimants against him had goOI
title, and that his own was insufficient aud &c
/ it being evident that he could not sustain de
tense, he makes none, but by his attorney as
sents to a judgment on terms which d. hoisap
pear unreasonable or fraudulent and without
mourning the additional costs % Jury trial L
is not claimed by PeterO that another result
must have been reached by trial and judgmen
> on verdict The paramount title ousted plain
, tiff, and must have done so, and Petero had re
fused to make any defenses against assessment
of damages by reason of the dover interest o
value of stones sold from the land.
, Some authorities, 10 show the effect of judg
ment recovered on a covenant when the cove
3 Dantor has notice, are (: LittletOn Vs. Richard
son, "a, n. Ii. Bell, j., thus states the law
Where person is responsible over to another
nf la " Or nv
5 tract, aud he is duly notified OF the tendency o
g the suit, and requested to take upon MIN th
: defense of it, he is no longer regarded as
[ stranger, because he has the right To appear an
+ defend the action, and has the same means an
2 advantages of cOntrOvertIDg the claim if h
was the real aud nominal party upon the record
10 every such case it due notice is given to sue
q person, the judgment, if obtained without frau
or collision, will be conclusive against him ghe
g Their he has appealed or not" In the City q
+ Boston VS.. Washington, 10 Gray 400, Metcal
f j., says of the foregoing: L" So far the adjud
Q cations are conclusive
a Hamilton v. Cuts, Mass. 34S is a cas-
g where the tenant consented to custer withou
Q action brought. The Court say OF it there
e no necessity for him TO involve himself in a Law
il suit to defend himself against a title which h
d is satisfied must ultimately prevail. but he cor
a senis at his own peril. If the title to which h
q has yielded be not good be must abide the los
, and in suit against the warraDtor the burden
t proof will be on the plaintiff, although 1t will
otherwise in case of eviction by force of juds
e ment at law with notice Of the suit to the wal
e rantOr. For in such case unless it be obtane
r by fraud the judgment will te plenary evidence
d Petero, therefore. having received notice an
e refusing to defend, there being no showing
e fraud, and the assent to judgment being laWfl
r, one as made. must be held concluded by th
? former judgment, and responsible for the secon
= and third items above, viz: Sl58.75 and $50.
l. AS to whether 10 this action the defendar
}, may show different consideration from that e,
n pressed in the deed, the prevailing America
4 authorities ara that the grantor is not estoppe
e by the confederation expressed, for it is arbItr
,r ry and is frequently different from the real col
1t sideration. In like manner the acknowledge
e ment Of receipt of payment, although under sea
1t is liable to be impeached es a common receip
1t Nor does the admission of parol evidence col
lie fict with the statute of frauds, for il does M
y affect the contract for the sale OF lands. but onl
Of the money arising out of that contract. Whe
1t therefore, consideration is expressed in II
lie deed 1t is mere prima facie evidence which me
II be rebutted or controlled by paro proof as to II
N amount and fact of payment, not for the purpo;
c. oil defeating the conveyance, but for the purpoi
t, OF ascertainlng damages to which plaintiff mc
=, be entitled for breach of covenant Such la
e guage is used in Wilkinson " Scott II Mas
g 249, Clapp v. Trrell 20 Pick. 247. Morse
re Sbattuck n. H. 229.
lie In McCrea Y. Purmont l6 Wend. 460. Cove