The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-09-26
PRICE FIVE CENYs.


n deed executed by the said party of
the second part and G. p. Iaukea, her
husband. to him as such trustee as
aforesaid and for other good and val
liable considerations him moving;
and the respondents, on the same date.
executed an instrument tthe party of
the second part being therein named
as Alex. j. Cartwright trustee,
duly appointed under deed of trust"
above referred to- whereby, lin con-
sideration of the sum OF Seventeen
Hundred Dollars to them in hand paid
by the said party OF the second part,
as such trustee as aforesaid and
for other good and valuable consider
ations them moving" they released
and Quit-claimed unto the said party
of the second part and to his success
ors in said trust forever the
land at the corner of Nuu-
anu and Hotel streets and the two
apanas at Kauluwela, land also all
the right, title, interest, property, pos
session, claim and demand whatsoever
as we'll in law as in equity of the said
parties of the first part of, in or to the
above-described premises and every
part and parcel thereof and the ap-
purtenances." The habendum reads:
ITO have and to hold all and singular
the above-described premises, together
with the appurtenances, unto the said
party of the second part, trustee. and
his successors as aforesaid, upon the
same trusts, terms and conditions, and
with the same powers and authority
as are contained in the deed of trust
hereinbefore referred to-" at
The consideration of $1,700, referred
to in the deed, was paid by the trus-
tee to the respondents, and thereafter
and until year or two next preceding
the commencement of these proceed
ings, the respondents did not receive
or claim from the trustee any share OF
the income accruing from the proper
ty named in the trust deed of Uwini
Auld and her husband, nor did they
in any other way participate as bene-
ficiaries Hereunder.
The facts hereinbefOre stated are
shown by undisputed evidence. The
substantial allegation of the complain
ants petition is that, through mistake
or inadvertence on the part OF the
trustee or Of the conveyancer who
drew the deed last above mentioned,
such deed left the property thereby
conveyed or released subject to all of
the same trusts as are expressed in the
deed from Uwini Auld and her hus-
band, thus continuing in Mrs. Iaukea
est in the property which she had
therein prior to the execution of the
release, whereas it was the intention
and understanding of all concerned at
the time that Mrs. Iaukea should no
longer have such or any equitable or
beneficial interest in said property;
and the prayer is that the deed be re-
formed accordingly. Respondents de-
ny that such was the intention of the
parties and contend that the deed Of
December 6, 1873, in its habendum and
otherwise, correctly expresses and car
ries out the intention as it then exist
ed. This is the only issue in the case
one of fact. .;..s. ilss
The evidence before the court on the
question consists of the testimony of
the two respondents, of the trustee,
and of Cecil Brown, ESQ.,, q member of
the bar of this court. who drew up
the deed in question, the memorandum
of agreement and the deed to the re-
spOndents; there is also some dOcu-
mentary evidence of lesser Importance.
Mrs. Iaukea's recollection OF the settle
ment of December, 1873, and of the ne
gotiatiOns leading up to it, is very In
disticnt; she is unable now to clearly
explain the transaction or how or why
it came about. Her husband acted for
her in the negotiations. She testifies,
however, that at the time of the exc
cution of the deeds she did not know
that she had a beneficial interest IN
der the original trust deed; but she al
so adds that her aunt, Uwini, told her
that she would leave to her as much
interest in the property as to her
cousins, the Misses Auld, and their
brother, Henry, and that she, respond
ent, at one time, prior to the execu-
ton of the deed of December 6, 1873,
and after Uwini's death, asked the
trustee for some money, but that the
latter refused to pay it, although on
what ground such refusal was based
the witness cannot now remember. The
making of this request serves to throw
some light on the question of whether
or not this respondent was at the
time entirely ignorant of the fact that
she had beneficial interest under the
deed of trust. Moreover, she further
-estifies that before the signing of her
deed she understood from what her
aunt had told her that she had as
much right to the income as her cOus-
ms, that she SO felt all along and was
not surprised when her husband told
1er recently that under the deed of
rust from Uwini she, the witness, was
/ beneficiary.
hat he understood the transaction in
question as constituting sale of his