The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1883-03-28
5atuaiiair 6azette.
WEDNESDAY MARCH Is. lsss.
suprsne Court Of the Hawaiian Islands.-
In Equity

4 W. S. MsULE VS.. WAIHEE sUGAR COMPANY.
B,,oys NJ. J,,s'ic, MrCHlly.
J
The hill sets forth that in 1865 the owner Of
/ the waihee sugar plantation gave permission
TO the complainant TO occupy and build a resi-
| deuce on a piece Of land about 37-lO0 acres in
extent, and that in pursuance Of this permis-
| sion he built residence on and has since oc-
cupied this lot.
That at SONG time after ls6s, and while the
| plantation was owned by Messrs. Harris and
widemann, their agent and manager and with
their knowledge and approval agreed to an ex-
change, with title in fec simple, Of this lot for
certain land owned by the complainant, and
that such agreement of exchange has been as
scented to and ratified by the successive owners
Of the plantation including the defendants, and
that the defendants by virtue OF the exchange
took possession Of and now hold the complain
ants land and that the complainant has offered
to interchange deeds in pursuance Of the
agreement which defendant now declines
10 do.
And prays that the defendant be restrained
by injunction from proceeding in suit Of
ejectmeut for these premises and be required
10 execute and deliver deeds etc.
The answer admits complaihant's possession
and improvements, but denies knowledge Of
the agreement Of exchange, denies possession
Of complainani's land alleges demand and suit
OF ejectment brought, and pleads the statute Of
frauds.
The further and fuller history of the trans
action as shown by the testimony is as follows:
The complainant testifes that he worked for
the late Christopher II. Levers, (who founded
/ the Waihee sugar plantation), and that Mr..
LEVERS desired he should live nearer the mill
shan his own premises, and said he must have
place for building, and gave him the follow
| ing license which is filed.
This IL To certify that permission las been
| granted to W. S. Maule TO build on plantation
land, and that should he after building choose
to take down his houses and remove it else
where he is at liberty to do SO.
(Signed,) SAMUEL 7. ALExANDER.
for c. II. LEVERS"
waihee, June 9TH, ls6s.
The word "houses" appears 10 have been
changed from "house" by addition of IS" and
an inappropriate apostrophe written with DIFF
ferent ink, and by person ofimperfeCt knowl-
edge Of English.
Mr.. Alexander was then the plantation man
| ager.
The complainant thereupou built one house.
| and subsequently two or three on this land.
That in 1871 or 1872. Mr.. Tallant who sue
I
an exchange, the plantation to take piece be-
longing 10 the complainant for the piece be
| was occupying, and caused both lots 10 be
| surveyed. No deed was made, and complain
| ant remained in the same occupation, till the
plantation had passed into the hands of Messrs.
| Harris and Widemann, some time aftor which
Mr.. Widemann went to Waihee 10 live and
/ take the management.
That Mr.. Widemann consented to the ar
rsngement for exchange of lands.
At this point synopsis of Mr.. Widemaun 5
| testimony nav be introduced. He saws he
was made aware of the arrangement made by
| Tallant, that he acquiesced and ratified it and
promised 10 give the complainant fee simple
title to the land. Mr.. Harris was his partner
and did not refuse TO ratify the exchange, but
/ put of signing a deed and no deed was ever
presented to Mr.. Harris for signature He
said it was better to keep the complainant de-
pendant than make him independent.
It further appears that Mr.. Widemaun next
became sole owner Of the plantation, but
| through want of time or oversight, he sold it
70 the late Capt. Makee, without reservation
IS TO the proposed exchange and without no
| tice. Mr.. Widemann testihes that after the
sale be spoke to Capt. Makee and asked him
/ 70 remedy the matter, which be promised 10
/ do. Complainant testihes that when Mr..
Widemann requested Capt. Makee as above,
/ in compliments presence, Capt Makee ap-
| pointed the next day to 90 and view the land
/ offered by complainant in exchange, and that
they went, Mr.. P. n. Makee and others being
with them. They first looked at the lot Of
| plantation land occupied by complainant, and
afterwards at complainants own. Capt Ma
kee said my land was too small, that ! ought
TO give a little more, looked at a second piece
Of complainant land near the other.
Mr.. Parker Makee's testimony at this point
is that his father demanded three small pieces
/ which he owned there, and that he should pur-
/ chase and add to the exchange a little piece
not his own, necessary to connect these and
| give access from the road.
II is agreed in testimony that surveys were
/ made by the senior Rev Mr.. Alexander, at the
instance Of Capt. Makee, which seem to have
been delivered to Mr.. Makee, but cannot now
| be produced, and it is not made certain to the
Court how much land was surveyed or finally
/ agreed upon, as the equivalent in exchange, If
there was final agreement.
The complainant's testimony is that in re-
ply to his request Of Mr. Parker Makee for q
deed he put him off saying he had no time
| then.
As to the precise iilea,i0.i OF Capt. Makce,
or Mr.. Parker Makes who is President Of the
defendant company there is conflicting evi-
| deDce. Mr.. Makee and Mr.. King, who was
| then plantation book keeper, testifying that in
| 1871 Mr.. Widemann had a conversation with
Mr.. Makee, respecting the exchange which
| Tsllant had proposed TO make with complain
ant, and that Mr.. Wideman said it had never
been ratified by Harris and Nidemann, aud
advised to let the matter remain as it was
without making deed.
Mr.. WidemAnn testi6es that his advice was
| Of the contrary tenor, in accordance with his
efforts for years with Capt. Makee and Mr.. P.
y. Nakee 10 secure the title to complainant
which he had neglected to give him when be
| might have cone so.
But whatever the conversation Of these par
| ties was, in fact Mr..Makee and the company
/ as at present constituted have not given the
deed.
Upon the acts Of exchange, the testimony
| for the complainant is that he surrendered first
the one piece which Mr.. Talant proposed to
/ take in exchange TO the plantation owners, and
afterwards surrendered the second piece which
Captain Makee called for, only taking of by
the consent the existing crop Of taro.
The testimony for the defendant is that the
several patches which plaintiff proposed in
exchange were cultivated BY the plaintiff in
1876 and perhaps later and that Mr.. Makee
gave positive orders to the man il charge of
the tarc planting for the plantation not to use
these patches, which are known as Pila's
kulesnss."
In Is the complainant gave a mortgage
on the " Pila kuleanas," saying 10 Mr.. Cecil
Brown, who negotiated it, that he could not
include the lot where his houses are built, as
be had no title, but hoped to effect an ex-
change.
Regarding the complainant's title to the land
he offers in exchange, he shows the Royal
Patent to Pila No. 5525. He shows a convey
snce of these premises from Kealoha Sam and
his wife theirs of Bila?) to 5. NJ Dana, who
appears to be brother Of the complainant
He fails to prove to the Court proper title
vesting in himself. Mr.. Makee testiies that
he has asked plaintiff about bis deeds, he has
never shown them 10 him.
Plaintiff Improvements. As has been stat
ed he built house under the license which is
in proof, and subsequently to the arrangement
with Mr.. Tallant he put up more buildings on
the land. 1t may he assumed that the plain
tiff to suit his purpose in extending his i'm
provsments made the alteration in his license
above noticed. In lssI complainant testifies
be raised his dwelling up one story expeud-
ins $4,000 in improvements, with no obiec-
iion on the part Of Mr.. Makee. He built
picket fence buying the posts Of Mr.. Makee.
Mr.. Makee requested him TO make the line Of
the fence so as to leave a path " for u.s. and
he therefore put it four feet within the line Of
the lot.
The defendants show chattel mortgage by
plaintiff for $500, of his dwelling house and
buildings on this lot, as well as Of some cattle,
to II. A. Widemann assigned to Capt. J. Ma