The Hawaiian gazette., 1884-12-10

PUUHEASa lw.) VS.. LIo (K.l 1t AIS.
.JEss { J., NcC~Ely and AHsiiH J. ,. OpiHfeH o.
fLs C0srf bg MoCEiiyy.
The complainant brings her bill in equity Il
set aside oOnveyancs executed by berin ls7I
to MakAlahi and her husband Lilo, alleging
that she intended The conveyance to be to Ma.
kal NH and Kapule MAkaluhi has since do.
ceased and the estate has fallen to Lilo by righ
Of survivorship.
The sole question IN the case is one Of fact
1t is the testimony on both parts that Puuhe-
ana, with Lilo and some others, on day IL
September, 1873, went to the residence Of one
S. W. Mahclona, a Hawaiian member Of the
bar, for the purpose Of having conveyance
drawn and executed.
The testimony Of the complainant aud Of
two witnesses on her behalf is that Puuheana
directed Mahelona 10 make the deed in favor
Of Makaluhi and hapule-that the oonsidera-
tion was TO be one dollar, and provision for
the support and maintenance Of the granior for
life-and that when the deed was written Ma
helonA read It as conforming to these insiruc-
tons, and the complainant, who cannot read,
executed it. The deed in fact was to Lilo and
NAkaluhi, for consideration OF Sl2O and
without q covenant f0y maintenance.
We do not think Il necessary 70 present an
abstract report Of the testimony, in view Of
what is set forth III the published opinion Of
the Chief Justice. We would point out one
circumstance which is significant, upon which
no comment has been made All the witnesses
for the plaintiff testify that ii was after Maize
Iona had made beginning Of writing the in
strument Lilo whispered or spoke in a low
voice TO him. Il is strongly urged in argu-
ment for the plaintiff, that by thai whispering
Maheloua was induced to make the deed in
favor OF Lilo, and not as instructed by Puuhe-
ana By inspection Of the instrument we see
that the name Of Lilo as grantee comes in the
third line. Il is added to all the improbable
tiles Of this case that although be had begun
and proceeded with the writing he was so
soon arrested and the instrument changed as
to the grantee, aud that upon the brief whis-
pering, the whole tenor Of it changed, as TO
consideration and covenant Of support. Ma
helona aud Lilo testify that the low voiced
words between them were only the statement
Of Lilo that he had not brought money enough
to pay for the land and the expenses Of draw
ing and acknowledging the deed. 1t is 10 the
highest degree unlikely that the attorney TO
whom all parties had addressed themselves
could so easily and IN SO brief time have been
induced TO enter fraudulent conspiracy. No
evidence is given that drawing the deed in the
form in which it stands was Of any advantage
TO him.
We have given full consideration TO all the
testimony o; record and We are strongly in
pressed with its failure to support the plain
tif's claim Il is clearly proved, in our view,
that there was no fraud IN the drawing and
execution Of the deed
We discredii the testimony Of the three wit
nesses who testify that different instructions
were given to Mahelona and that he read TO
them q different instrument from that which
was written. Puuheaua, by her conduct and
by many declarations % different parties,
proves that she knew and intended the con-
yeyAnce to be made 10 Lilo for one grantee.
Il is moi rare case for an elderly Hawaiian,
ignorant OF reading and writing. 70 allege that
be has been imposed upon by the fraudulent
reading OF an instrument which he thereupon
executes. There have been cases where such
allegation is sustained. But the Court will be
exceedingly cautious about setting aside con-
veyanoes upon the ground Of an ignorant mis-
The proofs must be unimpeach-
sble-the circumstances Of the case must show
probable fraud, imposition, and unreasonable
parties claiming to have suf-
iered by their ignorance must not have slept
upon their rights after discovering the alleged
-raud.
To hold otherwise would offer privilege
md premium to ignorance and greatly dis
.urb all titles from aged Hawaiian graniorE.
The case before Us lacks all the features Of
case entitled TO relief.
We therefore affirm the Judgment Of the
1ouri IN Chambers.
N. Thompson and John Russell for plaintiff; |
l. s HArtwell for defendants
Honolulu, Nov 29ih. 1854.