The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-05-11
In THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.

5. AIIMI I. JAMES ASHFORD and \ V MARCIALA
APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT
SUBMITTED APRIL i, 1899. DECIDED MAY +, 1899.
JUDD, C.J FREAE AND WHITING j.
remedy merely permissvo
does not exclude abogate similar existing
subsequent a equity by
prior vendee against vendor
OPINION OF THE COURT BY FREAR J.
The allegations the bill substantially as follows In
October 1897 the James Ashford executed and de
vcred the plaintiff deed of conveyance parcels
OF land i'll Waiuku, Maui known the q b. Kanana lands
heretofore owned by the said Ashford consideration
$4,000 Five hundred dollars paid in cash and the
ing $1,000 secured by plaintiffs At defendant Ash
ford request the deed placed IN his hands send Canada
for the purpose of procuring his wfs release of dover The
deed returned the plaintiff and recorded On
December 1897 the defendant Ashford plaintiff
ing that Of his power complete the sale of the
Kanana property him, for asserted and rendered the
$500 received plaintiffs balance These
Ashford executed and delivered to the
other defendant, A. V Marcia deed of of this
land the consideration of S25OO This deed was duly re-
corded The grantee had actual of the prior
The prayers of the bill ) that defendant Ashford be
ordered surrender the the deed executed by him
plaintiff in order that be recorded in the registry of public
conveyance CD That defendant A. v Marcal be ordered
surrender the for cancellation the deed made by Ashford
him The defendant Ashford made and the bill
deed be taken confessed &c The defendant Marca
demured to the bill which demurrer sustained and the bill
dismissed that plaintiff complete and
euae remedy at law against defendant Marca by action of
ectment if he he plain is not possession by the
statutory action to quiet title if he is in possession
1t does appear whether the plaintiff in possession
If he it clear that he into equity for he
has adequate remedy law by ordinary action of eject
ment held Judge But if he possession
though may have adequate remedy law by the statutory
quiet title, docs follow that he into
equity For the statutory remedy merely pernissve and
exclude abogae the remedy, any, previously
listing IN equity Story Ed ur Sec So Pom Ed Jur See
1872; Harrington Uterback, 81 Mo- 519; also kahOoi
of
demurrer alone concerned if equity would have had urisc
ton but for the statute would still have it. and the demurrer
should have been sustained it because the bill did not
show that plaintiff possession but it should have been
with plaintiff amend if he could, by
aedgng that he possession, and done, with
the dismissal of the bill forthwith.
But might the demurrer have been sustained and the bill
dismissed forthwith upon other ground There
other grounds of demurrer. One msonder of parties
Plaintiffs counsel in assumed that this suit
analogous to- one tor ecc performance and that therefore,
leaving the question of the cancellation of Marca deed
entirely and regarding the bill solely compel the de
deed by Ashofrd still Marcial ought be
party the ground that he took his deed with notice If this
bill for specific performance this reasoning might be
sound because in such something might be required to be
done Marca execution of deed by him the plain
tiff his taking with notice being considered making him
certain sense trustee for the plaintiff See Story Eq. Jur
7S4: Fry, Spec PERI Sec. 1885, DAN Cr FL d Pr 23l
and But this is bill for specific performance 1t Is
bill for delivery deed Nothing required be done by
Marca this deed is concerned. Marca not
proper party to this part of the bill 1t Is not con
tended and presume properly that Ashford proper
party to the other of the bill therefore we have here
distinct matters against Ashford and one against Mar
c each which might be the subject separate suit neither
defendant being party to suit tor the relief sought
against the other Perhaps muarouness would have been
ground upon which have taken advantage of this
But mijonder of parties it. at least
assumed that did On tins ground the bill should
be dismissed as o defendant Marcial
The decree appealed from dsmssing the bill defendant
Marcial is affirmed
H. II. Kdnedkua and j. L. hdutukOu for plaintiff
C.. BrOcn for defendant Marclal