The Hawaiian gazette., 1884-09-24

The bill alleges tina; Puuheana, intended TO
make conveyance OF certain estate 10 one
Hapule and Kamakalubi, but by fraud and
Misrepresentation and ignorance, made the
conveyance to Lilo, tile defendant, and Kama
kaluhi, and prays that the deed may be can
celled.
The defendants demur on the ground ~
that the plaintiff is not the proper party TO
complain as she had determined 10 ALLEVIATE
her land and had done so, but that the right
Of action lay in the parties who had been de-
frauded in not receiving the conveyance al
legged to have been intended. We take it that
there is difference between the fraudulent
procurement Of the execution of a particular
deed which is not the decd which the maker
intended, and the procurement by fraudulent
representations, Of something which the maker
thereupon intends to execute. See Bispham's
Equity, Sec. 202. Kerr's Fraud, p. so. The
former is held to be not voidable but void.
This is a reasonable doctrine. There may he
many considerations inducing sale besides
the amount of money received. In the deed
before us a money consideration is expressed.
II is alleged that the grantees really intended
were severally nephew and adopted daughter
Of the grantor 1t is not necessary that the
Court should make the inference that this was
deed of gift in order to hold that il there was
fraudulent substitution Of grantee, the
grantur has the right to demand that the con-
veyance be cancelled. 1t is sufficient if it ap-
pear that the grantor was fraudulently made
to sign paper different from what she sup
posed she was signing. She should be al
lowed TO show in Court the unexpressed con-
siderations meving her 10 the sale.
The grantees whom tile plaintiff intended
are alleged to be dead We do not think that
their heirs or representatives could bring a
bill TO compel execution Of a deed Of gift or
for consideration, there being no written
agreement to make such conveyance. II they
cannot then be parties, the alleged fraudulent
grantee and his assigns would be LETT in the
enjoyment Of the fruits Of the fraud, unless
the plaintiff who was made tie subject Of the
fraud, may be heard in Court.
The second matter raised by the demurrer
is the insuficiency Of allegations of fraud, of
notice, etc. The bill sets forth that plaintiff
has Just reason to suspect and does verify be-
lieve and so charges a conspiracy, etc after
detailing transactions which it is alleged were
frauduIently conducted. 1t is not q mere
naked statement of suspicion. Thus, where
the plaintiff alleges that she intended to make
a grant TO certain persons, details the story of
making, executing and acknowledging deed
which now appears TO be a different one, she
makes allegations which are sufficient found
alton for the introduction Of testimony. The
allegation that the plaintiff las just reason to
suspect and so does verify believe and charge,
that n certain defendant is not a bona fde pur-
chaser, is the statement Of what must be the
result and effect of certain evidence to be pro-
duced. No one claims that this evidence
should be pleaded.
In like manner it charges that sundry of
the defendants had cause IL suspect and were
put on their inquiry as to the fraudulent chf-
acter of Lio's deed before accepting their con-
veyauces from him. This appears to us to be
sufficient ground for the introduction Of evil
dence which may substantiate the allegation,
and that the allegation could not 90 farther
without setting out the evidence.
We are of the opinion that the demurrer
was properly ovorruled.
NJ. Thompson for plaintiff; A. S. Hartwell
for defendant
Honolulu, Sept. llth, 1851.