The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-15

OPINION OF THE COURT BY JUDD, c. J.
This is a bill in equity for the spe-
cific performance of an alleged con-
tract in writing for the sale of land. 1t
was heard by Hon. s. l.. Austin, Cir
cult Judge of the Third Circuit, who
dismissed the bill. Following Is his
decision:
fNThe plaintiff seeks by a bill in
equity to enforce the terms of an al
legged written contract for the sale of
undivided interests in certain lands at
Naalehu, district of Kau, Island Of
Hawaii, descended to defendant Ehu
from the estate of Naonoaina.
"The substance of the agreement
which is in the Hawaiian language,
from John K. Kekaula of Naalehu,
Kau, Hawaii, $40, it being part of
$50, the purchase price of my undi-
Vided right, in the property of the
estate OF Naonoaina granted to him
and HiIinai by Royal Patent No.
272S, consisting of 336 acres, situated
at PoupouweIa and Aemale, District
of Kau, and the kuleana No. S754 of
Naonoaina in that tract of land at
'KaunamanO.'
And after the payment of SO, the
balance of the purchase money, then
L will for myself and heirs give good
and lawful deed for the land above
named to John X, Kekaula, and his
heirs and assigns.
her
(Signed) Ehu Kaia y
mark
his
Kaia Y
mark
Hoike
Kala Pilipo
Namakakaua (k.C
From the testimony of Kala Pilipo
aud Kekaula the plaintiff it appears
that Kekauia who lives near the land
in dispute, having learned Of Ehu's
interest in the land wished to pur-
chase the land, he got Kala Pilipo to
90 with him and show him where
Ehu lived; they travelled about thirty
miles to Kappa, South kona, to the
house where Ehu and her husband
lived. The old folks were sitting I'M
der kukui tree in front of the house.
KekauIa told Ehu and Kaia that he
had come to buy land. They con-
sented; the agreement was then pro-
duced and then Ehu and kaia accept
ed the agreement and money $40.
Kekaula told them there were $40
more. Kala Pilipo says he then
signed their names and drew their
marks while they held the pen and
scrubbed along. This witness said
on cross examination, Il saw the
paper first when Kekaula gave
it to me to sign as Witness
Kekaula testifies that he took pen,
ink and paper with him, and drew up
the body of the agreement, then and
there, on the mat in the
presence of Ehu, Kaia, Kala
PIlipo aud others. That map of the
land was shown and Ehu and kaia
looked at it. That the testimony
of Kala Pilipo that the agreement was
not drawn up by me there is not true
Kekaula also says, Il told them their
interest was worth $50; did not tell
them it was not worth more than
that. They admitted l was a moo
puma. They said We will sell for what
you intend to give
Ehu, Kaia, Kaholo and Aleale all
agree substantially in their testimony,
that on the first visit of Kekaula TO
buy the land, Ehu told him she had
no land to sell. That any right to
land she might have belonged TO her
mOopuna LOsinahama in Kau. That
Kekaula urged her to sell, and she
refused; that after repeated urging on
his part, she reluctantly took the $50,
and told him il Losinahama con-
scented il would be sale, but if LOST
nahama did not consent, the money,
$50, would be returned. The wit
nesses for defense all swear that Kala |
Pilipo on May 9th signed all the |
names to the alleged agreement; that |
Ehu and Kaia did not make their |
marks, nor did they put their hands to |
the pen when kala wrote their names. |
On the 30th of May, 1898, John X. |
u ok MI IN hnnan wit
J. III. Waipuilani, a notary public, |
and wanted Ehu to execute q deed. |
She refused to do so, and offered to re- 1
turn the same $50, which Kekaula /
refused to take. 1t is in evidence that |
Ehu's portion of the land is worth |
$500.
The main question for me to decide |
is, whether the alleged agreement |
made May 9Th, 1898, is an agreement |
which equity ought to enforce?
From a careful study of all the evil |
denee in this case, find that John K. |
Kekaula, smart man of business,
having learned that an old and simple /
woman, named Ehu, had fallen heir /
to a piece of land near his own posses
sions in Naalehu, Kau, drew up an |
agreement to sell, procured a guide.
and travelled a distance of thirty miles |
to a place called Kappa, in South |
Kona, where Ehu lived, and there |
tried to purchase her land.
The weight of evidence is that Ehu /
refused to sell the land, saying that |
any right to land which she might |
have belonged to her moopuna LOST |
but he insisted upon her tax
ing $50 as part payment. Then his /
guide, Kala Pilipo, signed the names |
of Ehu and Kaia and made their /
marks. They both swOre that they /
did not touch the pen, and also signed /
his own name and that of Namaka-
kaua as witnesses.
Kala Pilipo himself says Namaka-
kaua did not make his cross. Kekau-
las statement that ne wrote out the
body of the agreement there before all
Of them il denied by all the witnesses,
and by Kala Pilipo, Kekaula's own
witness.
/ think an agreement such as has