The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-03-28

no binding contract Of exchange was made by
them, for the consent Of Mr. Widemaun, being
only part owner, would noticarry Mr.. Harris
interest. Mr.. Widemann says that when be
was sole owner he understood the arrange
ment made by previous owners and plaintiff
| and approved Of it and promised the plaintiff
to make him out deed, but simply forgot to
do 50 and sold the plantation, making no
reservation Of this lot.
| 1t also appears by the proofs that Mr..
Widemann knew of the improvements made by
Maule while he Mr.. Widemann and Mr.. Har-
ris owned the plantation and that Mr. Wide
mann fully consented to their being made.
Here we think was distinct and positive
agreement on the part Of the then proprietor
Of the plantation TO make a conveyance, the
execution Of which can be compelled The
evidence of Mr.. King and Mr.. P. y. Makee
that Mr.. Widemann advised Capt. Makee to
put plaintiff of cannot affect the plaintiff s
| right to 4 conveyance. The only effect is to
| discredit Mr.. Widemann's evidence that he
had agreed to give the plaintiff deed and We
| think it is not conclusive as it is admitted
| that Mr.. Widemann was then endeavoring to
persuade Capt. Makee to execute the agree
ment with plaintiff. That Capt. Makee, Mr.
Widemann's grantee, had notice Of the plain
| tif's occupancy Of the land must be admitted.
1.-THE doctrine seems quite firmly settled
that open, notorious and exclusive possession
Of real estate. under an apparent claim Of
| ownership, is notice to those who subsequently
deal with the title, of whatever interest the
| one in possession has in its fee; whether
such interest be legal or equitable in its
matters"
wado on Notice s27s and many cases there
cited
We cannot explain the fact that Capt. Makee
| looked at the land plaintiff had agreed to give
in exchange and that he had a survey made Of
it, which be sent to Mr. Widemann with
request that in addition to the Apanas two
| and three Of the ROYAL Patent he wished
| Apana one and another piece of 18th of an
| acre to be included in order TO connect these
| pieces, except upon the theory that be was
then willing to execute the agreement We
| may here remark that, it not being shown
that Maule objected to the addition Of these
pieces, it may be presumed that he consented
TO it and that the agreement was modified
| accordingly. But whether willing or not
Capt. Mskee and his successors, with a
knowledge that an agreement had been made
with former owner suffered the plaintiff to
| 20 on and put EXPENSE improvements on the
land amounting TO the value Of 81 500, and
the inference we draw is that he knew that
the plaintiff was expecting TO receive deed
for this land. If the knowledge that the
| agreement had been made came to Mr. Mskee
subsequent TO bis purchase this does not
weaken the force Of his acquiescence in the
improvements made by plaintiff
1t is urged upon us that the delay in SET
ting the matter indicates that no definite
agreement had ever been arrived at But as
far as the plaintiffs dealings with the owners
previous TO Mr.. Makee are concerned, the
delay was certainly theirs and not his
Mr.. Widemann says be must have had
dozen conversations with Mr.. Maulc on tie
matter.
We think that the inference to be drawn
from Mr. P. y. Makee's statement that he gave
orders not to cultivate Maules land or have
anything to do with it, is that up to that time
the plantation had had possession Of the land.
| This must be SO or there would be no ueces-
sity for these orders. We hardly think the
confusion in the identity Of these Kalo
4 patches among many others would be suffic-
lent to account for these orders But if
Maule had abandoned the possession Of these
patches TO the plantation, Makee, desiring 10
repudiate the agreement, would naturally
make such orders.
| The transaction Of plaintiff with Mr. C.
Brown in mortgaging his land is fully ex-
| planned by Mr.. Brown who says that plaintiff
/ tOlu MN Ne Hdu no ute 10 Ills mouse lot out
agreed to substitute it for his Kalo land
whenever he should get his deed
The validity Of plaintiffs title to the land to
be given by him in exchange was questioned
at the hearing by the defendant. The proper
time TO make enquiry into this title was when
negotiations for the exchange were pending,
but we are of the opinion that the plaintiff
should be required to show his title to the
satisfaction of a Master Of this Court and if be
fails in this we cannot compel the execution
Of the deed by defendant.
The plaintiff now says he is willing to in
clude. in his deed Apana one Of the Royal
Patent and the parcel Of 5-lOOlhs of an acre
required by Capt. Makee in addition to the
two apanas he originally agreed to give.
We think he should be held to the offer
made.
On the well settled doctrine that parole
agreement to sell or exchange lands will be
compelled to be executed, if it has been car
NED into effect with the knowledge and con-
sent Of the other contracting party so that it
would be against equity to repudiate it, we
hold that the agreement Of exchange in this
case should be ordered. A Decree in accor-
dance with this decision will I've signed on
presentation by counsel.
A. 5. Hartwell for plaintiff. F. VI. Hatch
for defendant.
Honolulu, March 10th, 1853.