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


James Makee without notice Of any rights, ex.
pectations or equities Of the plaintiff, although
the assignment of the mortgage on the bull
dings should have suggested il If made con-
currently with the sale. When Capt. Jane:
Makee'e attention is called to the position Of
the plaintiff and he is informed that an ex-
change had been considered and promised by
Mr. Widemann, he SAYS he will see what ID
proposed to be given him in the exchange. All
she testimony is to the effect that Capt. Makee
would not consent to take the one piece, Apana
which had been talked Of. The parties were
then in the position of making a new coutrac;
if they could come TO agreement, and the plain
tiff recognized this by acceedins to net terms
Capt MaEee was not liable for the specific per-
formsnce Of the engagements Of his grantor to
sell any part Of the granted estate Of which he
had no previous notice, and which il any sub
sisted were oral, neither was he estopped from
action Of eieotment, by anything he had SUI
ferred plaintiff to do, for plaintiff had done
nothing on the faith of any promise Of Capt.
Nakee, and held TO him no better position than
of tenant at will, as he had at first entered,
however the conversations with Mr.. Tslant
and Nj, Widemann may have encouraged him
10 extend his improvements during nearly ten
years occupancy.
Has then the status OF tine parties been
changed since the purchase by Capt Makee?
There is testimony that an exchange was
considered. \ survey was made at the instance
of Capt. Makee of plaintiffs lots and of the
plantation piece, and delivered to Mr. Makee.
These surveys are not to be found now. Ny
inference from what is testified is that the
lands surveyed as the plaintiffs included all
that Capt Makee required. The survey Of the
plantation lot came to 2-l00 acres more than
had been made by the survey made when the
exchange was previously discussed. No writ
ing or memorandum as required by the statute
of frauds was made. The plaintiffs counsel,
although the bill prays for decree for specific
performance, in argument does not claim this.
The proposition could not he maintained, in
view of the statute Of frauds. "The statute is
not mere rule Of evidence, but limitation Of
Judicial authority To afford remedy" at
requires that contracts for the sale Of lands in
order to be enforced by Judicial proceedings,
shall be substantisted by some writing"
Glass VS. Halbert lO2 Mass. 81. This doc
trine is uniform and settled.
II remains then to be considered if there is
an equitable estoppel of the defendants plea 81
the Statute Of Frauds.
The estoppel must depend Oh the claim thai
change Of lands had been agreed to and that il
consequence thereof he proceeded, with the
knowledge Of defendant to incur large expense
in improvements which lie would not have
made on the basis of his former tenure, and
which theoretically, he cannot save if he lease:
the premises.
Proof Of exchange cannot rest on any pos
session alleged to have been taken by the
defendant of his taro patches. For first, it i.
not made clear that defendant ever entered
into possession Of all the pieces which were
finally demanded in case the exchange should
be made, the compliments act Of mortgsging
the lands tending TO show his claim OF posses
sion as well as title, and the testimony Of Mr.
P. y. Makee being positive that he ordered
that no possession should be taken or held oI
the Pila patches. They appear TO have beer
situated in a congeries Of taro patches belong
ing TO Waihee Plantation and il seems proba-
bic that Apana which had been offered tC
Tallaut and Widemann had been cropped OIL
plantation account. Mr. Makee also testifies
that the plaintiff had possession had takeI
crops and had placed house on Apana /.
This attitude Of the parties towards these
lots, the defendants REIMBURSEMENT and re-
fusal 70 take possession, and the plaintiff.
occupation Of them, strongly advised the
plaintiff that the defendants were holding of
from the exchange which he desired. What
reason had he to conclude that the exchange
had been definitely agreed to A.? His own testi-
mony goes only to the effect Of his asking Mr.
Makee to have deeds prepared and executed
and OF his being put of 10 a future time. He
does not testify that at any time they came tC
definite agreement that they would exchange
and that the areas on both parts had beer
defined and agreed to and deeds promised.
Mr.. Aakee's testimony is that the impress
sion be derived from Mr.. Widemann's CONVEX.
satiou was advice to give no deeds, to continue
in the former status. He is not asked, but he
does not say that he ever intended or promised
to convey to Maule. He says that he de-
handed an exhibition of plaintiffs title, but il
was never shown him, and never made salts
factory. But he says, this was not "ihe only
hitch in the business. His father had de
manded as a part of the exchange a little
connecting piece Of land not belonging TO the
plaintiff, and the plaintiff had not procured
and rendered II.
Meantime the plaintiff had left the employ
ment Of the plantation and the inducement fol
originally placing him in the immediate vicin-
ity Of the plantation works had ceased And
defendants held a chattel mortgage on hi.
houses.
Now to support au equitable estoppe on the
ground that he had made large additional i'm
provoments on IN oral agreement for the pur-
chase Of the land, it must be clear that (I)
there was one agreement ~ that the improve
meuts were made in pursuance thereof. Bui
in view Of all the testimony / cannot find that
there was an agreement, or that the plaintiff
had reason 10 believe there was one. The i'm
r4rs.
Of his dwelling and buildings as placed then
under his first license. At what point, if any,
was it the duty Of Mr.. Makee TO say to plant.
if he was expending too much money Oh
rendering his buildings 100 large TO be moved
off, Certainly if Mr.. Makee had made nc
agreement to sell it was not for him to deter
mine how much the tenant at will should e1-
pend or in what shape he should put his
buildings. The plaintiff having had previou:
possession as a tenant his continuance cannot
be taken as part performance of agreement,
and in this case, as the original license &c
enter was coupled with license TO build and
take away his buildings, an enlargement Of
his buildings cannot be held per Sc as a psrr
performance on a new agreement. at ID
necessary that the Act should unequiyocally
refer 10 and result from the agreement, and
be such that the party would suffer an injury
amounting to fraud by the refusal to execute
that agreement" Sugden vend. and Pur-
Chases /. al
The case presented by the plaintiff not Of
fering written memorandum Of sale and not
supporting an oral agreement and part per-
Torrance sufficient TO estop the plea Of the
Statute Of frauds, the bill must Be dismissed
with costs.
A. 5. Hartwell for plaintiff. FIN. Hatch
for defendants.
Honolulu, February 18th, 1885