The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-10-23

sufficient to show the adverse posses
alon OF Kualii, and this possession
was unbrOken, for the occasional visits
OF hatla TO kualii on the land are ex-
planned by the fact that Kualii was
| considered as his foster brother. Kslia
did not assert any right to it. The
visible possession of Kualii, erecting
bouses on it, renting out parts Of it
and selling portion of it were acts
| of ownership adverse to Kalia.
Upon the question as to the charac-
ter of this instrument, the authorities
| agree that whether a conveyance be a
mortgage or q conditional sale must
be determined by a consideration Of
the peculiar circumstances of each
case. 1.-The only safe criterion is the
intention of the parties, to be ascer-
tanned by considering their situation
| and surrounding facts as well as the
written memorials of the transac-
lions. III Jones Mort, See. 25S. Cor
nell V. Hull, % Mich, 377-3S3.
The evidence of Kalia is that he
was in difficulty and to save himself
from going to Jail he wanted to borrow
so, and got it of Kualii. He says, sit
was understood by US that if did not
return the money in six months, the
land was to go to Kualii." eff pay
the money in six months, the land
comes back to me, if not the land goes
to Kualii." "The money has not been
paid back" This and his other evil
dence, above quoted, shows Kalia's
intention. He considered the trans
action as a conditional sale, and all
his acts are consistent with this be lief.
When urged to sell to plaintiffs in
1892, he says: ~ told Kalua 1.-THE at
torneyl that l had no right to the
land" There is other testimony from
him somewhat inconsistent with this.
His acts, however, are of more value
than his words.
We find in this case no recognition
of the relation of debtor and creditor
between these parties, and as the ven-
dee and his successors held possession
for twenty years and over, no interest
or rent being paid, thess facts go to
show that a mortgage was not intend
ed. l Jones, sec. 267.
The written document made between
these parties does not appear to us to
be gu its face clearly mortgage. 1t
appears rather to be an absolute con-
veyance, defeasible by the repayment
of the purchase money at future day.
This is in effect conditional sale. If
the money had been paid at the time
stated, the grantOr would have the
right to a re-conveyance Of the prop
erty.
AS Jones well says Il Joues Mort.
sec. 25S): "While in doubtful cases the
courts will construe the contract to be
a mortgage rather than q conditional
sale, yet, when a conditional sale is
clearly established it will be enforced.n
off the grantor has the privilege of
refunding if he pleases by a given
time, and thereby entitle himself to
reconveyance, the transaction is
conditional sale, and the equity of re-
demption does not continue. The
grantor who neglects to perform the
condition on which the privilege of
repurchasiDg depends will not be re-
lieyed.u id.
And, in the leading case on this
subject, Conway VS.. Alexander,
Cranch 2lS, G.. J. Marshall said: 80
deny the power of two individuals
capable of acting for themselves to
make contract for the purchase and
sale Of lands defeasible by the pay
men of money at future day; or, in
other words, to make sale with a
reservation of the vendor of a right
to repurchase the same land at fixed
price and at a specified time, would be
to transfer to the Court of Chancery,
in considerable degree, the guardi-
anship of adults as we'll as of infants"
The head note of this case is: "If A
advance money to B, and B thereupon
convey land to trustees in trust, to
convey the same to A infee, in case B
should fail to repay the money and
interest on certain day, and if B
fail to repay the money on the day
limited, and thereupOn the trustees
convey the land to A, B has no equity
of redemption" Eliminating what is
not applicable to our case, we find here
the principle that where an absolute
conveyance is made, with the proviso
that the vendor can repay the pur-
chase money within a limited time
and have the land back, and if he fails
to do this, the title is absolute in the
vendee; on failure of the vendee to
thus repay the money, he has ne
equity of redemption.
We find that the writing in this
case is susceptible of this construction
and, as the parties to it show by their
acts that they understood and intend
ed it to be sale upon condition, we
are of opinion that the bill to redeem
should be dismissed upon this ground |
as well as upon the ground first con-
sidered.
Decree accordingly.
c. w. Ashford for plaintiffs; ]. A.
for defendants.
Honolulu, October %, 1894.