The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-09-24

The bill alleges tina; Puuheana, intended 10
make conveyance OF certain estate to one
Hapule and Kamakalubi, but by fraud and
Misrepresentation and ignorance, made the
conveyance to Lilo, tile defendant, aud Kama
kaluhi, and prays that the deed may be can
celled.
The defendants demur on the ground (D
that the plaintiff is not the proper party to
complain as she had determined &c ALLEVIATE
Der 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 a difference between the fraudulent
procurement Of the execution of particular
deed which is not the deed 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 be
many considerations inducing a sale besides
the amount Of money received. In the deed
before us a money consideration is expressed
1t is alleged that the grantees really intended
were severally nephew and adopted daughter
Of the grantor. Ii is not necessary that the
Court should make the inference that this was
deed of gift in order to hold that if there was
fraudulent substitution Of a grantee, the
grantor has the right to demand that the con-
| veyance be cancelled. 1t is sufficient il it APP
| pear that the grantor was iraudulently 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 to the sale.
The grantees whom the 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. If they
cannot then be parties, the alleged fraudulent
| grantee and his assigns would be left in the
enjoyment of the fruits of the fraud, unless
the plaintiff who was made the subject Of the
fraud, may be heard in Court.
The second matter raised by the demurrer
is the insuffciency 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
fraudulently conducted. 1t is not a mere
naked statement Of suspicion. Thus, where
| the plaintiff alleges that she intended to make
q grant TO certain persons, details the story Of
making, executing and acknowledging deed
which now appears to be different one, she
makes allegations which are sufficient found
alton for the introduction of testimony. Tie
allegation that the plaintiff has just reason to
suspect and so does verify believe and charge,
that a certain defendant is not bona fde pur-
chaser, is the statement of what must be the
result aud 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 tU suspect and were
put on their inquiry as to the fraudulent chtli-
acter of Lio's deed before accepting their con-
veyauces from him. This appears to US to be
a sufficient ground for the introduction of evil
dence which may substantiate the allegation,
and that the allegation could not go farther
without setting out the evidence.
We are of the opinion that the demurrer
was properly overruled
NJ. Thompson for plaintiff; A. S. Hartwell
| for defendant
Honolulu, Sept. llth, 1851.