The Hawaiian gazette., 1883-03-14
Supreme Court Of the Hawaiian Islands
NJ. RosE ET Al vs.. II. H. PARKER EFT Al.
DisssnfiHg OpiHiSn Of AHssiH J.

D'sssiaiFq Opinion Of dHStfii J.
1t is shown conclusively, and found by the
Chancellor, that 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 as tenants of Rev. D. W. Parker,
father OF defendant, Rev. H. II. Parker, who
made the contract, and were using it for the
purpose Of pastuTage. 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 800, aud receipts were given showing that
they were for purchase Of land in the right
district, bat 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 ont entirely oliWRdt The effect
Of mere continuance Of possession, which Is
weak when the actual making of tie contract
IS doubtful, becomes strung, l 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
l79, 1871, p. 543, Wills vs. Strading 3 Vesey Jr.
57s-s2, Story's Eq. Jur. Vol. 2, Sec. 769.
Inaddition 10 that, house was erected on
the land and occupied by one of the purchasers
for several years. 1t is proved that soon after
the death Of Rev. .. ". Parker the party who
L.. Al, i.
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
permissive merely, and did not accompany or
grow out CT the contract Of sale. With great |
Difference to his opinion | think that construc-
ton is a mistake If it could be held as on
admission that she was not q purchaser Of the |
land, that admission would not bind all the |
others who claimed as such. And think it |
was not even an admission binding on her not
to claim as purchaser. In a recent case we |
have held that party entitled TO land could |
not admit away his right by paro:
The evidence shows that the house was put |
on the land after the contract of sale was made |
and manifestly with Mr.. Parker's free consent, |
1t was not under any lease. The lease had |
been abandoned. The erection OF house |
seems new departure, and should be held to |
be allowed aud done under the contract of !
sale. The party in occupation of it wished 10 |
avoid trouble with the defendants, and so ask |
ed 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 apparen.
laehes in the case was properly accounted for. |
For these reasons respectfully dissent from |
tho opinion Of the majority Of the Court.
Honolulu, Jan. 80, 1883.