The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-09-25
Supreme Court of the Hawaiian Islands,
January Term, 1880.
Before Harris, c. j., and Nc Cuiiy, J--OpiniOn
By McCNRy, J.

N1ON ~ . ~" - - eNse OENN
By McCIRy, J.
KUPELE EFT AL VS.. J. SUMNER EFT AL.
The bill of complaint alleges that on De-
cember 9th, 1876, the defendant, Nancy
Ellis, wife of Charles K. Ellis, deceased,
and her said husband executed a lease to
the plaintiffs for eight years of certain pre-
misses at Waikiki, which had been occupied
by the plaintiffs for several preceding years,
and cultivated on shares under the defendant
William Sumner.
William Sumner had become a leper, and
was about going to the retreat at Molokai,
and had in fact made a conveyance of this
land to his brother John Sumner, who was
about leaving the kingdom to reside at
Tahiti. Certain conversation is alleged to
have been had between the plaintiffs and
the Sumner brothers which induced them to
believe that the power to deal with this
land had been given to the daughter and
niece, Nancy, in consequence of which and
of her assuming to nave charge of the land,
the plaintiffs took the said lease, which is
now repudiated by A. ]. Cartwright, also
defendant, who is the attorney in fact of
John Sumner. Other facts will also appear
in the opinion.
Per Curtain
This matter may be considered under two
points.
First-Whether an Injunction will be
allowed against a Judgment taken by con-
sent, and next, whether the facts of the
case would, under any circumstances, sup
port an injunction. We will first examine
as to the facts.
The date of the alleged interview and
conversation when John Sumner is said to
have told the defendants that he was going
to Tahiti, and his brother to Molokai, and
that they must deal for the land with Nancy
Ellis is not precisely fixed but as John
Sumner left the kingdom February 18th,
1876, and the lease was executed December
23rd, 1876, it must have been more than
ten months before making the lease. Some
of the testimony of the complainants would
make it much longer than one year. Taking
the compliments statement of this CONVEX
sation to be true, would anything then said
justify the lessees in taking a lease from
Nancy Ellis. They were at that time, and
for many years previously, had been culti-
waiting this land on shares for William
Sumner under some parol agreement on
sufferance from year to year, or crop to crop.
Under these circumstances, John Summers
direction to them could not be held to sig
nifty more than that they might for the
present continue as they had been doing,
and settle for the proceeds with Nancy.
1t would be extreme to say that, upon such
a conversation, the plaintiffs might a year
afterwards take a lease from Nancy for the
term of eight years at a fixed annual rent.
But unless John Sumner made this state
ment between the Bird and 10th of February
he was not the owner of this land, for it was.
-.uo,ol e. k,-, hv Wi1l.o- M Ar 0r1
and that conveyance was put of record before
certain that William Sumner was present
at that conversation. If he was a leper then
in custody of the Board of Health, it is un-
likely that he was. There is an endeavor
made to bring him forward as present when
the lease was made, but no witness saw
him. Witnesses say they supposed he was
in an inner room of the house, but no wit
ness heard him speak. At that date he had
not for more than ten months owned the
property, nor was he the agent for his
brother, who had another agent-A. j. Cart
wright-since September, 1875, whose ap-
pointment was of record.
But John Sumner totally denies that ne
told the petitioners what they ~narrate, and
his denial very much weakens our belief in
their story. They tell it with a suspicious
uniformity as to the phrases used, and with
an absence of detail as to circumstance
which would have been likely if this had
been a real transaction by which the Sumner
brothers made a transfer of the management
of the land to the daughter and niece Nancy.
We think her statement is the probable one,
to this effect-that her father, being disabled
by sickness, she told the tenants of the land
not to trouble him about business, but to
deal with her that is, to continue as they
had been doing for several preceding years.
And u a statement of Nancy's may well
have had the assent of William Sumner and
of John, if he were giving friendly assist
ance to his sick brother.
The case of Kamohai v. Kahele, third
Hawaiian Reports, $50, differs materially
from this. There the business proposed to
be done was to sell the land, and Kamohai,
who owned the land as his fathers heir,
assured the purchaser that his uncle was the
owner, and assisted in the survey, in the
execution of the deed, and receiving the
price paid, and the whole transaction was
concurrent with the plaintiffs declarations
as to the title. Ia the case at bar, any
declarations of John or William Sumner
were made a year before the lease. They
did not authorize a lease for a term of years,
which was a different holding from what the
compliments had held it. The whole i'm
port of such declarations, if they were made
by the owner of the land, would be satisfied
by the compliments continuing in occu-
pancy under the old parol agreement, and
dividing the crop with Nancy until some
properly authorized agent should make
other arrangements.
To hold that such words, used under these
circumstances, would support the authority
70 make a deed would carry the doctrine Of
estoppel beyond precedent, aud beyond the
limits Of safety We think, therefore, that