The Hawaiian gazette., 1896-04-24
OPINION OF THE COURT, BY
JUDD, c. ].

This is bill to annul conveyance
of land A recital of the facts is neces-
sary. On November %, 1877, one P.
Naone conveyed his land in Pauoa, Ho-
nolulu, TO his grandson, James L. Ste
vens, Jr., by deed recorded the same
day it was executed. On the 18th
! January, 1878, the said p. NaOne con-
yeyed the same land to Mele Stevens,
the last above named defendant (moth-
er of. j. L. Stevens, Jr) January IA,
1888, ]. L. Stevens and Mary (Mele)
Stevens, in consideration of $1,000 con-
veyed the said land to one Philip OPP
fergelt by deed with a full covenant
of warranty. On March Is, 1894, j. l..
Stevens, Jr., conveyed this same land
to one Lau Chong, who at the Novem-
Der term, 1894, of the Circuit Court,
First Circuit, brought ejectment against
the Opfergelt minors plaintiffs herein)
and obtained judgment for possession
of the land and evicted the plaintiffs.
The grantors of P. Opfergelt u. L. Ste
vens and wife, were requested to de-
fend the suit under their warranty, but
no defense was offered. At the Febru-
airy term, 1895, of the said Circuit Court
the Opfergelt minors brought suit
against Mary n. Stevens and James l..
Stevens, her husband, to recover dam
ages for breach of their covenant of
warranty. They were defaulted for
non appearance or answer, and the
jury assessed the damages at $4,000,
the amount claimed. Judgment was en-
tered thereon, May %, 1895, and an ex-
ecution was taken out and returned
unsatisfied, July 81, 1895, the defend
ants having no property.
On the Sth of March, 1894, the de-
PENDANT, J. l.. Stevens sometimes his
name is written ]. L. Stephens) made a
conveyance to his son, j. L. Stevens,
Jr., of land described in Royal Pat
ent No. 2759, L. c. Award No. 1876, to
Popolo, containing l acre roods and
situate in Puaanui, Lahaina, Maui,
and of land situated at Kawaiahao, Ho-
nolulu, Island of Oahu, being a portion
of the premises described in Royal Pat
ent No. 1862, l.. C. Award No. 1876 to
Kamahiai, conveyed to j. L. Stevens
by deed of Kahaulelio Of the island of
Lanai, dated January 16, 1893, recorded
in Liber 141, page los. The considera-
ton expressed is ten dollars and his
great affection aloha null for his SON,
the grantee. The grantor reserves the
right To live upon the premises during
his life, with his son, and TO share
equally with him in the rents received
from the same. The consideration in
the deed of Kahaulelio TO ]. L. Steph-
ems is three hundred and fifty dollars.
The bill is brought TO set aside the
deed of James L. Stevens, senior, to j.
L. Stevens, Jr., and prays that this
may be done and that the premises may
be ordered sold and the proceeds APP
piled to the payment of said judgment
Should the deed be declared void?
1t is well expressed in the Sth volume
Encycl. of Eng. and Am. Law, D. 749,
that Ito constitute a fraudulent con-
veyance there must, as a rule, be a
concurrence of three elements; that is
to say, there must be creditor to be
defrauded, debtor intending to de-
fraud and conveyance of property out
of which the creditor could have real
lied his claim or some portion thereof"
The first question, then, is whether
the plaintiffs, or their ancestors, the
covenantees in the deed of Mary Ste
vens and husband, were creditors of
Stevens antecedent to the conveyance
now attacked. The general rule, says
Bump, Fraudulent Conveyances %. 1850
is that "all claims which arise from
contract are in force from the date of
the agreement. A covenant with a gen.
eral warranty and a bond of convey
ance take effect from the date of the
instrument" Many cases are cited to
sustain this proposition. In Bibb v.
Freeman, SO Ala, 612, quoted in IL
Southern Rep, p. 1872, the Court say:
The c0yenantee of covenant of gen.
eral warranty who is evicted by title
paramount and outstanding at the time
the covenant is entered into is regarded
as creditor not from the time of evic-
ton, but from the time the covenant
was executed, and a subsequent volun-
tary conveyance is, as to him, void"
The date Of the covenant in our case
is January Ia, 1888, some six years prior
to the conveyance in question The
plaintiffs are therefore creditors.
We have no hesitation in saying, in
view of the facts in this case, that the
Stevenses were also debtors intending
to defraud. The conveyance itself has
badges of fraud upon it. 1t has the con-
sideration expressed of ten dollars, as
if it were conveyance to bona fide
purchaser for value. But to this is adj
ded the consideration of the grantor's
great affection for his son. The reserva-
ton of life residence on the premises
to the father is inconsistent with bona
fide sale for value. And the trifling
consideration of ten dollars for prop
erty for which $3.50 had been paid is
evidential of fraud.