The Hawaiian gazette., 1885-04-08

the plaintiff was in condition Of mental in
capacity for the transaction OF important bus
mess, and did not know or comprehend the
nature and elect oil his act in making the
mortgage and notes, aud that the consideration
for the mortgage was grossly dispraportioned
| to the value of the property, aud that the
plaintiff was induced to make the tnortrare NV
the suggestion, contrivance and undue infu-
ence Of defendant, and by an unfair and dis
| honest advantage Of the plaintiffs mental in
capacity, who well knew the circumstances.
and that the total liabilities assumed by the
plaintiff was then over $40, 900, ard which he
was utterly unable to pay. The plaintiff offers
to recouyey the said one fourth OF the plauta-
ton TO the defendant on his repayinr plaintiff
| Sl4 900, aud.interest received by him from the
| plaintiff, and reimbursng plaintiff his share Of
the expense and assuming his share Of the LA
| bilities.
The defendants attorney in fact, Samuel NJ.
/ Damon, answered October II, 1851, aud the
defendant, whois resident Of Belfast. Ire
land, also made answer, received here aud
| filed on the 9th February, 1885. These an
swers fully detail the business relations of
| plaintiff and defendant, showing that in 1859,
| plaintiff, who is defendants nephew, was
started by defendant in business on a small
| farm in Nuuanu valley, and McKeague started
a sugar plantation on this farm, and in 1865.
| defendant joined him in it, and year or two
later they commenced the Heeia Plantation,
and moved the machinery thither. ant carried
the plantation on. No written articles of CO.
partnership were made, but the parties held
| equal undivided notifies. In the year 1870,
the parties settled their rights by a deed, and
! defendant went TO Ireland and returned in
1871, and went again to Ireland in So, and
returned to this Kingdom in 1878. That in
that year the parties made settlement OF their
affairs. That during all this time McKeague
| had the sole management Ot the plantation and
kept no partnership accounts, and defendant
had no means Of knowing whether lac owed
| Mcheague the $4,000 rs claimed by him, but
that he took McKeague's word for THIS and
completed the transaction Of the sale of the
first one fourth as set forth in the bill o. COM
| plant. That in 1850 defendant again returned
to Honolulu, and endeavored to sell his remain
Ing fourth, because, although defendant had
advanced several sums Of money from time to
! time to carry on the plantation, he lad never
received any dividend or share Of profits; but
| tlat Mckeague had been drawing out such
moneys he required for his personal use
besides a salary which amounted in two years
! to about $4,000. for which McKedgue could
give no account That defendant then pro-
posed to sell his remaining fourth; that defend
and said he would give time to pay the bal
-ancc Of the purchase money, if $40, 900 was
paid down, and that MCkeaguc said I've Would
not give more than $50, 900 for the rem lining
one-fourth, aud that defendant bad not men
toned any price TO him, but subsequently, de-
! PENDANT had told plaintiff he would take the
sum offered and the transaction was completed
The answer AYERS that the sun Of $50, 900 was
/ taIr nd hpunpt IL 8
| $40 900 Of the purchase money and that SIO,-
600 is owing with over years interest.
In regard to the mental condition Of Nc
Keague, the answer admits that McKeague
had met with an accident between ISIS and
| 1880, which affected his health, aud that in
| 1880 defendant observed a change in Nc
Keague's mental and bodily condition but that
! in 1881 McKeague had gone to San Francisco
| for sea voyage and ON his return "hc was
decidedly great deal better in body and mind,
and was like what he had formerly been" and
that during all the negotiations McKeaguo
was perfectly cognizant of everything, and
competent to judge for himself The allega-
tons in the bill as to the mental iucapacity,
undue influence, and that the consideration in
the mortgage is grossly disproportioued to the
property, ETC., are denied
Without referring to the evidence in detail
embracing as it does much that was taken aud
by me fully discussed in the case of MCKeague
VS.. Neisser ct. al, | am OF the opinion that
McKeague was, at the time Of the transaction
between him and defendant which resulted in
the mortgage now attacked, in a weak condi-
ton of mind, rendering him incapable Of pass
ing correct judgment on important business
matters.
The defendant admits that he lad observed
in 1850 that McKeague was weakened in both
mental and physical condition, but that in sSI
he had recovered as the result Of a voyage to
San Francisco and back.
1t is is in evidence that DR.. Kennedy was in
1884, residing at Heeia, where he held a COM
mission from the Board of Health: that lie fire.
| quently made remarks about Mckeague's con-
diton, once stating, when lie observed Nc
Keague mounting his horse with great diff
Guilty, that he seemed to be paralyzed on one
side Of his body and head, and that ii Nc
keague did not settle affairs satisfactorily with
him, he would have him put into an insane
asylum, and get a competent man to manage
the plantation: that Kennedy was dissatisfied
with McKeagues management Of the planta-
| ton, and even mentioned the name Of a desir-
able successor to the management.
These witnesses say that the only difference
in McKeague'B condition after his return from
San Francisco, was that his complexion was
fairer, that his mental condition was unchanged
was as ii had been since the fall from his
horse.
l must consider Kennedy as having full op-
portunities Of Judging of McKeague's weak
mental condition and that lie, being a physi-
clan Of experience and having had a long per
sonal acquaintance with McKeague, who was
not only his nephew but his partner, did have
actual knowledge Of his condition He says
he was anxious to close ont his interest and
return to ireland, because he could get no div
idends profits from the plantation. lie even
had TO put into the mortgage now under con-
tention, to be secured, the sum Of $500 bal
ance of former sale of one quarter interest
This McKeagUe had been unable to pay him,
and | think this is inconsistent with his an
swer and deposition that $4,000 was q fair
and honest price for one quarter Of the plant
| alton and that the whole plantation was worth
from $4,000 to $3.50, 900.
But the plantation then owed sec, 9is.I3
| and Mckcague undertook to bear this in adj
dition to the SOL, 500. This would put tie
plantation at valuation Of S27l ,3is.l3. It
was assessed in 1881 at Sl35, $40. Others
| testify that it was worth from $4,000 to
| 100000 Mr.. Henry Mac arIaue says that he
| thought at the time that the price AIcKeaguc
paid was ridiculous" The plantation was
| luu uUWu5 anu uG lOlu NlChGl.ut IL was q poor
time to buy Kennedy out, and advised him to
let him alone, and used all the arguments he
| could. McKeague said he would not buy but
bought without his knowledge He says that
in June, 1882, when Ross took charge, the
| plantation was worth about Sl2j,GOO. II is
remarkable that Kennedy was willing in 1879
TO sell (three years after the Treaty of Reel
procity with the United States went into efIect)
at the rate Of $780, 600 for the plantation, and
| yet lie considers the price he obtained two
years later, at a rate Of S27l 200; was fair and
honest
There is evidence that in the year 1851, all
plantation stocks and Investments were high
and the prospects of the sugar interest very
promising. And we have the evidence that
about 100000 was expended on the place
between April, 1878, and June, 1881, and Of
this about 100000 was in new mill and
other permanent improvements, and that in
those years all but about $4,000 had been
paid off from the crops. But it must be borne
in mind that, though the mill was new and
good, and the crop at the time Of McKeaguo's
fall from his horse, was good one about
500 tons )-he neglected cultivation after that
and tie plantation had run down so that it re-
quired great expenditure to bring it up again
after Captain Ross took the management.
think that Kennedy was insincere when he
| told Mr. Cecil Brown that he did not care 10