The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-04-22
Supreme Court Of the Hawaiian IsIand.--
In Equity.
KAISAFAU vs.. 5. KUku.


1t Is averred in this bill that plaintiff
conveyed the land III question ON the BIRD
OF April, 1878. for the consideration Of fifty
dollars which was not in fact paid that his
grantee, shortly before his death in 1884,
conveyed this land TO defendant for the
nominal consideration of Sl00 and natural
love and affection: and that defendant
knew at the time he received his convey
ance that the purchase money had not
been paid to plaintiff, and that defendant
has since refused to pay the purchase
money but has offered to pay $780, in res.
pect and in full satisfaction of plaintiffs
claim: and prays that it may be declared
that plaintiff has lien on the land for the
purchase money and interest: and that
defendant may be decreed TO pay the
same and in default that the land may be
sold &c.
The defendant demurs and submits,
LIST. That there is no vendors lien on the
land for unpaid purchase money in this
country and the court should not now de
clare II TO exist 2nd The bill discloses
lRches on part Of plaintiff which should
defeat his claim. Bird The lien, il it eI-
lists, is barred by the statute Of limitations.
4th The vendors lien has no existence IN
til so declared to exist by court of
equity, and If the debt has meanwhile
been barred by the statute, there can be
nothing to establish the lien for.
Byte Court: l am asked by the plaintiff
to declare that vendor has an implied
lien upon the land sold by him for the
purchase money, as against the vendor
and subsequent purchaser with notice.
After somewhat extended examination.
/ think Mr.. POmeroy is right when he
says that, NO single topic belonging to
the equity Jurisprudence has occasiOned
such diversity and even discord Of
opinion among the American courts as
this of the grantors lien 3 POmerOy's
Eq. Jur. l251.
Chancellor Kent "A Kents Com. 1872
says that, The vendor of real estate has
q lien, under certain circumstances, on
the estate sold, for the purchase money
The vendee becomes trustee to the
vendor for the purchase money, or so
much as remains unpaid; and the princi-
pie is founded in natural equity and
seems TO be inherent in the English
equity Jurisprudence"
Story in his work on Equity Jurispru-
dence says, The principle upon which
courts OF equity have proceeded in es-
tablishing this lien, in the nature Of
trust, Is that person who has gotten the
estate OF another, ought, in conscience,
rs between them, to be allowed to keep
it, and not to pay the full consideration
money. A third person having full know
ledge that the estate has been so obtained
ought not to be permitted to keep it, with
out making such payment: for it attaches
to him, also rs Il matter OF conscience and
duty 2Story's Eq. Jur. s 1919
Lord EldOn in the leading case Hdekreh
VS.. Symmoa', Is Yes. 329, says. Upon prin-
ciple, without authority. / cannot doubt
that it goes upon this, that person hav-
ing got the estate Of another shall not as
between them. keep it and not pay the
consideration. But Lord Eldon himself
doubts the wisdom of the rule and saws
1t would hive been better at once b have
held that the lien should exist in no
case" &c
Chief Justice Gray in D,read vs.. O,iiorHs
lis Mass. 264, effectually disposes of the
reasoning Of Lord Eldon. He says, "the
theory that trust arises out of the uncOn-
scientiousness of the purchaser would con
strue the nOn-performance of every pro
mise, made in conveyance Of property TO
the promisor, into breach of trusts and
would attach the trust, not merely to the
purchase money which he agreed to pay,
but TO the land which he never agreed TO
hold for the benefit of the c,niVi gYs trust"
The same judge also says that the
most plausible foundation of the English
doctrine would seem to be that Justice re
quired that the vendor should be enabled
by some sort of Judicial process, to charge
the land in the hands ofthe vendee as Sc
curity for the unpaid purchase money.
And the restriction OF the doctrine to real
estate suggests the inference that the
court OF chancery was induced to inter
Poseby the consideration that by the law
OF England real estate could not be at.
tached on mesne process, nor. except in
certain cases, or TO a limited extent, taken
in execution for debt
The principle contended for by plain
tiff has been adopted by some States of
the American Union and rejected 10y
others, and IN some when recognized by
the courts, it has been abolished by statute.
1t has not been adopted by the Supreme
Court of the United States except when
established by the local law of the diff
ferent States.
Jones Mtges. s 191. In the case of Bay
ley vs.. GrseHlog Z Wheaton IS the Su-
preme Court Of the United States held
that vendor cannot enforce his lien for
unpaid purchase money against trustees
for creditors Of the vendee to whom the
land had been conveyed, without notice
Of the lien. In this country as in the
United States the policy of the law is to
encourage the greatest freedom in the
transmission of land We have a system
of registration where titles are spread for
public view. Real estate is subject to
attachment and sale upon execution and