The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-01-14

y. .. HartWell ana l.. Preston Tor piall-
tiff. Paul Neumann and f. N. Hatch for
defendants
Dated Hoaolulu, December 80. 1851.
Supreme Court of the Hawaiian IsIands---
In Equity
EMMA NJ. BEcKLEY vs. g. AFoyG, f. MIR
CALF, HELEN Rowland, JULIA PRossER EFT AL.
Before Chancellor Isa. opinion ofisc Chancellor.
A demurrer in this case was overruled
April 2nd 1891.
Referring to my decision on the demur-
rer for a statement of the bill, it now be
comes necessary to consider the case upon
the further pleadings and proofs.
The plea and answer of G. Along makes
profert of the proceedings had in 1859 be-
fore the acting Chief Justice in the case
of Theophilus Metcalf against Emma
Metcalf, the present plaintiff, and AYERS
that the record shows no fraud, collision
or error in law and that the decree there
in is final and conclusive upon the plain
tiff. 1t also pleads the records of the Pro
bate Court and shows that on the 9th day
of July 1874 the administrator with the
will annexed of the estate Of Theophilus
Metcalf deceased, filed his petition for
sale of the real estate of the decedent
for payment of his debts, that an order
was made appointing a time for hearing
and for those interested to show cause
why the same should not be granted, that
at the hearing it was proved that notice
had been served on the plaintiff, that she
appeared by counsel and opposed the
granting of the petition, and after full
hearing, an order of sale was made by the
Probate Court on the 18th day of Septem-
Der, 1874, and that after the sale had been
made, the administrator filed his petition
for conformation and for authority to exc
cute deed of conveyance therefor to this
defendant and that after notice to the
plaintiff, an order confirming such sale
and authorizing the conveyance was
made; that plaintiff appeared personally
or by counsel at all said hearings and
that she is precluded by the orders
herein fromnow contesting said sale; also
that defendant paid S66,600 for the land
sold to him and that at or before the exc
cutiOn Of the deed he had no notice that
the claim of the plaintiff that the decree OF
July LIST 1859 in Chancery, was contrary
to law or that the same defrauded her OF
her property or that she claimed to be the
legal or equitable owner of the real estate
otherwise than as devisee thereof under
her said fathers will and that defendant
never had notice of plaintiffs claims until
Immediately before the filing of this bill
The answer further specifically denies OF
admits OF avoids the allegations in the
bill
1t is necessary TO restate few of the
facts of this cease. In 1852 Theophilus
Metcalf bought of the Government the
land of Kaupakuea and procured the Roy
al Patent therefor to be made in his
| daughters name, (the present plaintiff
In 1883, in pursuance of decree of Mr.
Justice Robertson acting Chief Justice Oh
the Supreme Court, this land was con
veyed to Mr. Metcalf by the Guardian ad
Item of the plaintiff Mortgages were
made by Mr.. Metcalf, on this estate upon
which was conducted sugar plantation
Mr.. Metcalf died, heavily indebted, in 1916
leaving by will this land to his daughter
the plaintiff. Thereal estate of decedent in
Guiding the land in question was sold il
order to satisfy the debts of the decedent
by order of the Probate Court before
which Court the plaintiff appeared and
contested many points, but said nothing
as to the present claim that the decree Of
LIST of July 1859 was a fraud upon hel
rights, and contrary to law. If she had al
this time knowledge that the Patent Of
the land of Kapakuea was in her owl
name and had been improperly conveyed
to her father, it would have been her duty
to make the objection then. But she say,
in evidence she supposed up to that time
that ler only title to the land was by vir
tue of the demise Of her father and that
she ascertained the facts now presented
in her bill after the administrators sale t.
the defendant Along. There is no proc
that the defendant Along had any direc
notice of her claims upon this land excep
as made to him by plaintiff in converse
ton. But this conversation was subse
quent to the administrators deed, as it wa.
only then that the plaintiff herself knew
the facts she communicated to Along.
So far then rs direct knowledge of thi
claim is concerned Along had none whel
he bought this land But it is urged tina
AIr.Afong took by the administrators deet
whatever estate Mr.. Metcalf had and II,
more and that he is charged with motto,
of the record of 1859
IL Is TO be presumed that the deed o
the guardian adj litem to Theophilus Met
calf in pursuance of the decree is on re
cord But there would be nothing in thi
4 to put the purchaser on inquiry as to tn
alleged fraud and illegality of the deere
obtained fifteen years previous.
am of the opinion that Mr. Atom,
must be regarded as a bona fide pun
chaser for value without notice of tn
matters now set up against the decree
and as this Is conclusive of the case 1 d
not deem it necessary to pursue furthe
the inquiry whether the original deere
is now reversible.
Bill dismissed.
F. M Hatch for plaintiff A. S. Hart
well for defendant; Along.
Honolulu, December %, 1884