The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-11

fo- denzrre-- Under lie -2S
OPINION OF TEE COURT 81 B-CKER-
Ton, !.
The bill alleges that - long time
ago. KuAnu and Luka leased to Mrs
Nisu Isukea Q certain piece OF land
for the period Of five years That
about the LIST of November, 1888,
Mrs Iaukea went TO kuama and
Luka and told them that the lease
was lost, and II not being recorded,
asked to have q new lease made,
when In fact the said lease was not
lost and was Of record In the Govern
ment Record Office That Kuamu
and Luka- believing Mrs Iaukea,
consented to have q new lease made
for the period of 5 years, rent SO
Per annum, payable semi-annualy
In advance: said new lease was made
to the defendants and acknowledged
but no copy Of the same was given to
said Kuamu and Luka- That the
said Kuamu and Luke are aged
and feeble minded and believed the
new lease was made exactly like the
former one, but they now discover
that the new lease was for twenty
years, and the rent not payable In
advance; that the defendants fraud
ulently took advantage of these old
people. That since this last lease
Kuamu and LukR have sold the land
In question to the complainant, Mrs.
C. E. Cummings, and were paid a
proper consideration for the same.
And pEays that the lease may be
delivered mp and cancelled, and a
nav lease executed in accordance
VIA the terms of the original agree
msE
IN tins bill the defendant, Mrs
EHIEsA- fled an answer, but Mrs.
XssEEla demurs TO plaintiffs com
piE111 . the ground that the COM
piiAlz1- % far as she is concerned,
EH7is ID stEte q cause of action. The
6iawurzx Was argued on November
IL 1884 before Judge Whiting,
First gn3gs Circuit Court First Cir
esnr vino oa December LIST, 1894, filed
a. 6tsnHasn sustaining the demurrer
ah fisfan2x1t Mrs. Nakuina. And
r11Is MsEzsr now comes here on appeal
HrMn that decision.
Tie rules of the Circuit Court
Dnasr the head Of pleadings, on page
z. provides that 'demurrers must
distinctly specify the grounds upon
WHICH any OF the objections to the
petition or complaint are taken. 1t
may be taken TO the whole complaint
OF 70 any of the causes of action
stated therein" The third ground
named that shall be considered
separate ground for demurrer is,
That there Is a defect or misjoinder
Of parties plaintiff or defendant"
The demurrer in this case does
misioinder OF parties, but simply |
alleges for cause that said com |
plant, In so far as this defendant !
Mrs. Nakuina) is concerned. fails 20 /
state a cause Of action" The mis-
joinder Of parties is referred to In /
the decision of the lower Court. bat /
the point not being raised IN the I
demurrer on file, as required bz re 4
rule above cited, We do not co0Eder
1t, or pass upon 1t directly =
The alleged fraudulent leEse which
is made part Of the bill, disclosas
hat Mrs. Nakuinz Is one OF The
essees and executed the said lease:
she Is therefore q party IN interest
and party TO the transaction The 4
TACT as to whether she was 3 party TO
he fraud, or whether she knew Of II
$ something that can only Be
developed on the hearing CT the case
The fact that Mrs Cummings knew
II the alleged fraud II the tine she
purchased the land does not N ou
opinion cut any figure n tbs case:
he was informed Of the first SsRse
which she knew the land Vas subject
o; she also knew OF tbs RIIegad
lease which was q csOad
n the title or incumbrznce OF 1os
and, which she would have ID re-
1ove before she could get possession i
( the land at the end Of tie kE
base. IL the second Jesse wAs .
raud, then the only legal eocunb-
Anoe on the land was the first Lease
Reformation Is appropriate. Ehsa
n agreement has been made. O. Z 4
has been entered into O.
upon, as intended by 81
ne parties interested, but IN red1c- I
1g such transaction to writing
Ither through the mistake OF both ( ]
artles, or through the mistake Of ]
10 plaintiff accompanied by fhs
Enowledce and r1rar-,rA-
Ient Of the defendant. the u5tssn ! +,
lstrument fails to express The real
yreenaent or transaction. In such = :
We the instrument may be ccrrac1a3 Z
} that IL shall truly represent the
SSeenent or transaction actually (