The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-03-14

NJ. Ross II Al. V. II. II. PARKER IT Al
D;ss,sf',s5' .Opiai0a Of AEstiH }.
It Is shown conclusively, and found by the
Chancellor, that a verbal contract Of sale Of
the land as claimed was made substantially as
set forth in the bill At the time this contract
was made the plaintiffs were in possession Of
the land rs tenants Of Rev. D. ". Parker,
father Of defendant, Rev. II. II. Parker, who
made the contract, and were using it for the
purpose Of pssturage. Possession continued
after the sale, and at three different times
thereafter payments were made and accepted,
on the purchase money Of the land, amounting
to 100, and receipts were given showing that
they were fer purchase Of land in the right
district, hat not specific enough to take the
case cut Of the statute. These receipts show
that the payments were surely not made on
rents They were not in the nature Of rent,
and no payment Of rent was shown. The con-
FINANCE Of possession, after the sale, | think,
was not under the lease, but must have been
allowed under and in pursuance Of the con
tract Of sale.
In this case the POSSESSIONS not. as in many
cases. used as aiding the evidence of sale.
That is made out cntirely aliVadf. The effect
Of mere continuance Of possession, which IS
weak when the actual making Of the contract
is doubtful, becomes strong, think, when the
contract is sure, and possession goes on, and
payments are thereafter made and accepted on
the contract.
See Browne on Statute Of Frauds, sections
l7g, ISL, p. 5i3, Wills vs. Strading Nesey Jr.
37s-s2, Story's Eq. Jur. Vol. ?, Sec. 163.
In addition 10 that, house was erected on
the land and occupied by one Of the purchasers
for several wears. 1t is proved that soon after
the death Of Rev. B. W Parker the party who
had occupied that house came to the defend
ant, Rev. II. II. Parker, and requested per-
mission TO retain the house on the land, as his
! father had permitted it in his lifetime. This
/ is construed by the Chancellor to show that
the original leave to build the house there, was
peTmissive merely, and did not accompany or
grow out Ct the contract Of sale. With great
Difference TO his opinion | think that oonstruc-
| ton is a mistake Ii II could be held as an
! admission that she was not purchaser Of the
| land, that admission would not bind all the
others who claimed as such. Aud | think it
was not even an admission binding On her not
to claim as purchaser. In recent case We
have held that party entitled TO land could
I not admit away his right by parOl:
The evidence shows that the house was put
on the land after the contract Of sale was made
and maniiestly with Mr.. Parker's free coaseni.
II WAS moi uhueI any tease. ine lease hdu
| been abandoned. The erection OF q house
seems . new departure, and should be held to
/ he allowed and done under the contract OF
sale The party in occupation Of It wished to
| avoid trouble with the defendants, and 50 ask
| ell permission to remain. This did not des-
troy the first effect Of putting the house there,
which with the other acts of possession shown,
| think; was sufficient part performance TO
take the case ont Of the statute. All apparent
I lachos in the case was properly accounted for.
| For these reasons | respectfully dissent from
| tho opinion Of the majority Of tine Court
| Hunnlnlu. Jan. 30. 1853.