The Hawaiian gazette., 1884-10-15

alton, aud it arises in 4his way. On the death
Of Makaluki, interstate, her heirs at law sup
posed they inherited 40 interest in her pro-
perty Proceedings were then instituted in
rebate fo!p administration on her estate. Puuhe
ana swore that her name was Makaluhi and
that Aakaluhis name was Puuheaua. II was
afterwards discovered that these two women
bore these names iuterchangeably. Bot the
facts are undispuicd that the plaintiff Pun
heana is the widow Of Nalaweha, the paIentee,
luki deceased was the wife Of Lilo. The Pr :
bate Court decided :hat by survivorship the
husband, Lilo, was entitled to the whole estate
in the land, the deed being to him and his wife
jointly, and declined TO grant letters Of admin
istration,
When Mr.. Castle read the deed to them,
Puuheana, Waiehua, Makaluhi's father) keiki
and others no dissatisfaction was expressed
l think this suit was conceived by the rela-
tives Of Puuheana on her behalf, in their dis
appointment that Lie became by the operation
of law the owner Of the whole estate.
The numerous declarations made by Puu-
heana land which are not denied) that she had
given the land TO Makaluhi and Lilo are
weighty. These admissions against her pre-
sent position 90 very far towards destroying
her evidence she is old and feeble and
is doubtless under the influence OF others who
are promoting this suit.
The remarkable agreement Of the witnesses
Of the plaintiff as to the date Of the deed being
Sept 9th, which is the wrong date, shows
something Of concert in arranging their testi-
uony., for which, hereas ter, council are not
at al responsible.
Mr. NJ ahelona received not over (S50O)
five dollars for his services and it is incon-
ceivable that he should have committed 4
gross fraud upon his conhdiug fellow country
men and backed it up with perjury, for so
small sum Of money.
L cannot resist the impression made upon
me by the evidence that there was no fraud
practiced upon Puuheana, and find the truth to
be that the deed of the ith Of Sept 1879 was
intended 10 be made, as it was in fact made,
TO Mskaluhi and Lilo. For this reason the
bill must be dismissed.
The amended bill alleges substantially that
since the filing Of the original bill the plaintiff
discovered that that the said Lilo had had
executed and delivered to Ida B. Castle 4
deed of conveyance Of the said land and that
said Ida had afterwards 10 wit on the.
day of............lSS3 made q decd Of con-
yeyanoe Of a portion Of said land to Robert
Levers and thereupon the plaintiff obtained
leave TO make Ida and W. Z. Castle and R.
Levers parties defendant. That said deed
to Castle and Levers are clouds upon plain
tifs title. The plaintiff charges that these de-
PENDANTS are not bona hde purchasers and that
Mrs. Castle obtained the deed from Lilo with
out adequate consideration; that these defen-
ants had notice Of the fraudulent character OF
the deed to Lilo before the purchase from Lilo;
that the defendants had notice of such facts
and circumstances as were reasonably cal
culated TO put them upon inquiry as to the
fraudulent character of the deed TO Lilo: and
that the defendants had reason to suspect and
had heard that plaintiff denied tue validity Of
the deed aud proposed 10 contest the same
The answer Of Mr.. and Mrs. Castle 10 such
parts of the bill as they are advised is material
for them 10 answer is, "that prior to the said
deeds TO said Ida B. Castle and r. Levers
respectively neither one Of these defendants
had notice of any fraudulent character of said
deed TO said Lilo, or of any facts or circumst-
ances reasonably calculated to put them or
any one o! them upon enquiry concerning the
same and that neither one OF these defendants
prior to the taking Of their respective deeds
had heard or been Informed that the plaintiff
disputed or proposed TO contest or litigate the
validity of her said deed"
No evidence was offered Oh the part of the
plaintiff to show that Mr.. aud Mrs. Castle or
Mr.. Levers had notice Of the fraudulent
CuaIaCleI OF the ueeu 10 Llu-
The testimony on behalf of the defendants
to show their want Of notice &c, was object
ed to by plaintiffs Counsel on the ground that
the answer does not contain the requisite aver
ments TO entitle them to the benefit of such
evidence. And the Counsel cited cases, not
ably Boone aud CiileS, 10 Peters 1895, 70
sustain the position that to entitle a defendant
to the benefit Of the defense of a bona fde
purchaser. he..must allege that the grantor was
seized IN fee, and in possession, that the de-
PENDANT paid the consideration in good faith
and without actual or construction notice Of
the fraud.
An extended examination Of the case Of
Boone vs.. Chiles will show. that the deed"
referred to was mere contract Of pulchlse,
and that there was no allegation in the answer
referring 10 the deed; the defendants merely
asserted contract to purchase; and the Court
well say that "a party is not allowed to state
one case in the bill or answer and make out
different one by proof"
In the case at bar the charge Of being pur
chasers ,rih notice is distinctly made against
defendants which they deny and think under
the pleadings this was sufficient
But having decided that the deed from
plaintiff to Makaluhi and Lilo must stand, there
is no occasion further to discuss the questions
as to the status Of the subsequent purchasers.
| only need repeat that there is no evidence
affecting them with notice, but positive
denial on the part of Mr.. Castle that he had
any reason to suspect that the deed in ques-
ton was fraudulent.
The bill must be dismissed.
NJ. Thompson, J. Russell, and J. NJ Poepoe
for plaintiff:
A. S. Hariwell for defendants.
Honolulu October Sth. 1884