The Hawaiian gazette., 1883-03-14
Supreme Court of the Hawaiian Islands.
In Equity

fstfsff TIC tH1Fccffns1.
N,KAIDA e Al. Is. II. H. PARKIR It Al.
g,ii-iJH 81 TIE Court

/ This Is bill in equity alleging. substantially, an
oral agreement between the defendants ancestor
/ the late T. W. Parker and certain native Hawaii
ans TO wit Nakalina and Is others, for the sale of
a piece of land IN kaneohe, Oahu. described in
| Royal Patent No. 536, for the sum of 500. The
bill also alleges part payment Of the purchase
money amounting to 500, and that the said de-
ceased put the said orators in possession of the
land. NJ. Rose q complainant IN the bill alleges
that these same natives have assigned to him their
rights in the land accruing TO them by the sale
above set forth: also refusal of the defendants,
heirs Of the said r. w Parker TO execute the con
veyance agreed upon as alleged, also tender Of re
maindcr Of purchase money. The Court is asked
vsyance accordingly, and to enioin trespdss suit
by defendant, II. II. Parker, against NJ Rose.
II appeared by the evidence that some twenty
three persons originally composed this company,
many Of whom have now deceased. and the bin has
been amended accordingly.
There being no evidence that these parties have
assigned their interests herein TO NJ. Rose he isno
longer party except as praying for IN injunction
against suits for trespass in disturbance Of his
possession Of the land in controversy.
As 10 Mrs Mary Parker, widow OF the late b.
dover was released and the claim for this was
abandoned at the trial.
This case is one of considerable difficulty The
following are TRANSACTIONS Of the receipts put in
evidence by the plaintiffs:
S1l5.o0. This day Paoa and kapule have cor
rectly paid one hundred and fifteen dollars (SIl5OO
for the land of Lipuna, in Kaneohe. Island Of
Honolulu, Feb md, ISL.
Sll5.eo. This day Paoa paid one hundred and
fifteen dollars fl15.00) part payment for The land
IN haneohe. tSiCned. r. w PtREFr
Honolulu, June ID, ISL.
5000. Kahuakai and Kapule have correctly
paid seventy dollars 5000 for the land of Ii
puma. Signed Il. W. PaTzIn
Honolulu, Sept. 10th. 1871.
$1,000 This day Kahuakai has paid one nun
dred dollars for the land of Lpuna, AZ Kaneohe,
Island of Oahu. tSigned,) b. w. PAEKEE.
Honolulu, October 18th, 1873.
In all four hundred dollars was paid. The SIC.
natures are shown 10 be genuine by members Of
the family of the late b. W. Parker, but none of
them have any personal knowledge of the transac-
ton, never hearing Of 1t until after Mr.. Parkers
death, which occurred in 1871. These recepts are
not relied upon by the plaintiffs as forming
memorandum in writing for the sale of land suf-
fcient 70 satisfy the Statute of Frauds the specific
performance of which can be compelled in equity.
Ii Is evident that these receipts do not comply
with the requirements OF the Statute Of Frauds
for they do not state the names of the grantees.
" The memorandum must contain the essential
terms Of the contract with such degree Of GER
tainty that it may be understood without recourse
TO show the intention of the parties
Browne Statute Frauds 81.
The written memorandum must contain the
names of both the contracting parties, id S72.
The memorandum does not show the price
agreed TO be paid. This IS an essential part Of !
their agreement where as in this case. price was
stipulated. and its omission is fatal.
See Browne st. Frauds $40.
The plaintiffs contend. however and 80 alieqe
IN their Bill, as amended that the contract was |
oral and that thereby Mr. Parker agreed to convey
for the sum Of Five Hundred Dollars the Land Of |
Llpun2 consisting Of about 80 acres, situate IN |
haneohe, Oahu. TO company Of natives some g !
in number, and the receipts are introduced as |
evidence that 800. was paid In pursuance of this
parole agreement.
~,
verbal contract for the sale of this land and rely
On the power with which courts Of equity are |
clothed, of compelling the specific execution of /
The verbal contract void by the Statute Of Frauds
on the ground that the refusal TO execute this /
would amount to practising a fraud upon the
plaintiffs.
The correct doctrine upon which this rests
appears to be that equity viii at all times lend its
# Frauds.
See Browne Statute Frauds 49, and ass.
Courts of equity will enforce verbal contract
Ehere the statute itself has been used as a cover
o fraud.
Equity will intervene to enforce verbal contract
the Statute of Frauds where one
'arty has done certain acts IN part execution and
lpon the faith of the contract. with the knowledge
md consent of the other. and the contract must |
e so far executed that for the latter TO repudiae
would amount to fraud upon the other party.
Payment alone Is not now considered even TO
be whole amount Of the purchase money, part
be contract. Browne st. Frauds 461. and many
asses there cited. The reason for this seems 10
e that as the money can be recovered in an action
law the parties may be restored TO their original
1sition.
Story Ia. Juris 76l
Judge Story SAYS in this section tlat rothine
! to be considered part performance which does
ot put the parry into a situation which Is n fraud
pom him unless the agreement Is fully per
omed."
But where payment Is accompanied by the pur-
hasers taking possession Of the land in pursuance
the verbal contract for the purchase Of il. a |
an performance Is quite uniformly considered 10
G shown. ,
Browne ST Frauds TO- and eases cited.
But IN all cases in which possession Is relied
pom as an act OF part performance II must apuear
} be notorious and exclusive possession ~ Ire /
nd and to have been delivered or assumed in | ,
pursuance Of the contract alleged and 80 retained
continued. Z
Browne ST. Frauds. }i7z. Ii
The land involved in this ease i a Tract Of nm {
need, unculivated pasture land 1t IS not claimed
lat the plaintiffs have made any improvements
pom II permanently beneficial to the estate. ex-
.pt 80 far as the moving upon Il of A housa nv
akahio W. is concerned lsui Afr. Il H. Parker ]
stiles luncoutTadictedl that after his father-s
sath Makahio asked his thu witness permission
continue 70 have her house on the land as his +.
ther had done in his lifetime. This would make :
e possession by MalIahio 4 pernissive one and r
i in pursuance Of the alleged contract
II is admitted in testimony, by many witnesses
20 were parties plflntih. that the natives com
'sing this Company had horses. and some saw 4
tile pasturing on this land under Mr.. Parker
fore any engagement was made TO buy the land
Now the possession Of the land las above stated
1st be assumed in pursuance Of the contract al
zed IN order 20 be part performance, but in this
Sc the confined possession can be naturally and b
opery referred 70 fbe old fenaDry and does not y
ctcs1r1lT imply an agreement belveen the par- =
5 Tor sale Of the land. The mia question al =
rs IS gro asiiae the possession MS taken ol
pom review Of the whole case The real facis NJ
IN to Be that the natives composing this Com h
n.y. having the of this land for pasfuraee IN on
Mr. Parker. agreed with him in ISL 10 buy II On
sly; and made payments up to 1873 amount- ~
70 STU They made no improvements on tic I'm
d The defendants have paid the taxes All this ~
e The delay Of plaintiffs in seeking specific OF
formnnce OF the contract for over three Years eli
Eeen the last payment and Mr.. Parkerss deztb. an
for I'VE years after his DEATH has CHANGED the N N
1tlon Of the parties. for the land has now risen az
sldarably IN value. There Is no written memo IN
dun Of the bargain for the sale of the and IA
ca am az liberty TO enforce undfE the Statute lar
f1rds OF this county. The oral agreement sl9
not accompanied by such acis Of part per ~
nance By the plaintiffs as 70 maks # against m
lily and good Conscience not 10 enforce the DO
ssnlent such was apparently The view Of the Las
hes plalni1h, for il s shown that they have re- vi
iedy oHere 70 ACCUSES in giving up their pur nc
g and receIEsng their money back. Whefber = /.
such waiver Of their rin1l4 j., nr-I-- - -