The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-12-01
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
SEPTEMBER TERM, 1896.

=.
APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
SUBMITTED OCTOBER g. 1896 DECIDED NOVEMBER 10, 1896
JUDD, CD, FREAR AND WHITING, j.
deed executed by an
antor originally procured
the afterwards failed
support provided in the deed
originally procured by fraud
OPINION OF THE COURT BY FREAR, ].
This suit equity cancellation OF deed on the
ground The alleged fraud set forth the bill
That ON the 18th of August 893 defendant induced the
complainant Ga Hawaiian eighty years of age) by fraud
deceitfu promises and representations make
conveyance him. the defendant of the land in question G
P 1887 L. c. A. 443 at Punauu Oahu for the nominal
consideration of dollar.
chat such fraud deceitfu and wicked promises repre-
consisted in that the defendant told the complainant
that if he would convey him the said land he the defendant
would support the complainant in comfortable and decent
during the remainder of his life and that the com
panan should thereafter have further thought
getting his living that the defendant would to it
that the complainant should not want for anythng all OF which
preenc promises and statements the defendant at the time OF
making them intended to fulfil but the same were MADE
dece fraudulenty and designed for the purpose OF pro
curing complainant to execute the said deed
at shortly after the execution of said deed the defendant
utterly deserted the complainant and left him penness and
restitution and has failed and refused TO
support the complainant
The deed which put evidence ppOrts to have been
consideration of love and generosity and dollar
after the description of the land this clause Ella
kekal nui malama pono hoi kuu moopuna kaaau
kapu k kuu ola hki kuu make ana, aalla paul. which
NAV be translated thus: Here great thing grandson
Kalaaukapu also furnish with suitable support u
my death, then cease
The Circuit Judge made specific findings well
a appeared from the circumstances
surrounding the execution of the Decd the complainant had
utterly establish the truth of the allegations of fraud
These findings be forth here They sustained
by the evidence and practically conceded by eompnant
counsel.
The argument mainly relied upon before the Circuit Judge
after the evidence n mainly relied upon that
in equity the condition for support IN
case itself sufficient evidence of fraud gives
presumption that the deed procured taqduenty
In the But found by the Circuit Judge, II
there such presumption it is ebutted IN this case y the
The presumption, certainly not conclusive
make such deed entirely OF his own motion
grantee may fully intend when he accepts it. to comply
with the for support but afterwards
change The remedy in such not to cancel the
deed the time made but to enforce the Gov
enant or forfeiture for failure of consideration or
condition other the may be-
Compliments counsel accordingly further argues that the
claue for s,nnort in this case condition, requests
decree of the deed and the forfeiture OF
thereby conveyed for breach OF the condition But
here again sustain the Circuit Judge in his ruling that
there are allegations in the bill warrant the granting OF
relief true, there allegation that the defendant
has failed support the complainant but this only OF
several allegations made show fraud the time the deed
made Strike out the preceding clauses which set tortn e
promises presumably oral alleged have been made traudu
entlv of the deed and the allegation OF
failure support must also be struck out IL cannon sd
alone 1t merely allegation that the defendant did not
keep the promises which he alleged to have made to induce
the complainant sign deed No such promises shown
made The deed itself not set out and does
not appear from bill that contains clause for support
whether in the of condition. The bill IS
solely the theory that the complainant was induced
by fraud to sign and this theory borne out by the
facts Whether deed might have been set aside upon
bill based other ground whether amendment
been allowed this BILL had leave to amend been
requested questions which need not be decided
The decree Circuit Judge dismissing the bill without
prejudice to petitioners right bring further proceedings
is therefore affirmed.
UagoOn G Edings, for complainant