The Hawaiian gazette., 1889-05-14

| that this meets the whole argument
upon the ground of estOppel. The
silence of both Allen and s. Parker in
| regard to the covenant of renewal AT
the time the bid was made for a fif-
teen year lease, was due to forgetful-
ness, and the plaintiffs promptly in
formed the company of the fact of the
covenant when they aScertained it,
and before the company had become
preiudiced by acting in ignorance OF
it. q Storey's Eq. Jur., Secs. 140-l42,
and Kelly Us. Soiari, 9 NJ. & w. %. }
The case of GdLbrdith as L1unsford,
(27 Cen. l.. J. sos, which Mr.. Smith,
counsel for the Kahua Ranch Com
pany, referred to upon the question of
estoppel for acquiescence arising from
ignorence of facts of which the parties
might have informed themselves,
shows very long period of acquies-
ceRce amounting to ineXcusable
laches, extending over many years,
during which the defendants repre-
sentative made expensive improve
ments. The circumstances of that
case bear little analogy to the one be-
fore this Court and do not make it a
precedent for it. No benefit by est0p-
pei can be claimed in favor of the de-
PENDANT, Cartwright, both for the rea-
sons set forth above, and because
there is no testimony addured show
ing that he has acted under the lease
to the Kahua Ranch Company in any
way that would prejudice his cestui
que trust, should the lease be cam
celled.
Upon the fourth ground of defense,
that the covenant for renewal not be-
ing recorded, and the Kahua Ranch
Company being ignorant of its exist
ence, they should not be affected by
it, am compelled to find under their
admissions that they knew that the
plaintiffs were in possession under n
lease,-that they had sufficient notice
to protect the previous lease. They
| were put upon their inquiry and might
have ascertained the facts by going
to the plaintiffs; they preferred to
work in the dark and take their
chances. (RiUeS AdBl. rs. Makltl1t, ,
Haw. 166, Darts Us. Spencer, 3 Haw.
274, 2S3, and Achi as. hauJC0, D Haw.
29S.) "All the authorities agree that
there is no difference in legal effect
| between actual and constructive no.
tice." (HW as. EpIey, 81 Penn, st.
$780, at is established law in Penn
| sylvania, that whatever puts a party
on inquiry amounts to notice; pro-
vided the inquiry becomes duty, as
it always is with a purchaser; and
| would lead to the discovery of the
requisite fact by the exercise of ordi-
nary diligence and understanding
| Ibid $780,
There is nothing unfair in the cove
nant for renewal; the fact that the
land could now be leased at much
| higher rent than was reserved by the
lease to Allen and Stackpole, is not a
ground which may influence a court
of equity to disturb bona tide con-
tract.
The plaintiffs made a written de-
mand upon Cartwright for a renewal
OF their lease several weeks before it
expired, which seems to have been
reasonable notice as to time. Under
all the circumstances / think that
they are entitled to such renewal and
the Kahua Ranch Company, defend
ants, must hold their lease subject
thereto.
Alfred S. Hartwell and Paul Neu-
mann for plaintiffs; Cecil Brown for
A. j. Cartwright, defendant; w. o.
Smith for the Kahua Ranch Com
pany, defendants.
Honolulu, February II, 1889.
In the Supreme Court of the Ha-
waiian Islands-In Banco. Spe-
cial Term, March, 1889.
S. KAILAA VS.. S. NJ. KAAUKAI .(K.),
J. c. KAAUKAI (w.) AND MANA
*.
BEFORE JUDD C.J., M'CULLY, PRESTON, BECKER
TON AND DOLE, u.
Opinion Of the Court by BickertOn, j.
Dole, j., dissenting.
This is bill in equity to declare a
deed to be q mortgage The matter
comes here on appeal from the de-
cision of Mr.. Justice McCully, which
is as follows:
DECREE.
This cause come on regularly to be
heard on Thursday, the fourth day of
January, A. D. 1885, Messrs. Charles
Creighton and S. II. Kane appearing
for the plaintiff, and Mr.. J. NJ. PoepOe
appearing for the defendants, and the
respective parties being present in
Court, and after reading the sworn
bill of complaint herein and defend
ants sworn answer thereto, the Court
did order that no testimony be intro
duced, but that a decree be entered
upon said bill and answer in favor of
the said plaintiff; wherefore,
1t is hereby ordered, adjudged and
decreed that the deed executed on the
eleventh day of May, A. d. 1885 ire
corded in Liber So, page 1l3, in the
Registry of Deeds, by said plaintiff,
S. Kailaa, to defendant, S. NJ. Kaau-
kai, husband of defendant. G. Kaau-
kai, is mortgage to secure the loan
of the sum of $50 and interest loaned
and advanced by defendant, ]. G.
Kaaukai, to plaintiff, and that this
cause be referred TO J. H. Reist,
Master, to ascertain and report the
amount of money, including the prin
cipal and interest due under the said
mortgage. And that the report of the
Master filed herein be confirmed,
and said plaintiff is hereby decreed to
pay to said Kaaukai the sum of |
so I5-1OO as said i'll report found to
be due.
That Mana, one of the defendants |
herein, is hereby ordered and decreed |
to execute unto said plaintiff a good |
and sufficient deed of the property |
,,,antionad in said nprtorapa and /