The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-05-22


consideration being grossly inadequate
to the worth of the property. the rentals
alone bringing in $11S or more per month.
and the property of the value at the
minimum estimate, of S25 600; that sub
sequently plaintiffs wife returned to
him and they became reconciled and
that plaintiffs eyes were then opened to
the nature of the business deal he had
made. The opinion then concludes:
I'VE need not go into the question as
to whether the plaintiff, as he now
claims, thought he was signing deed, in
trust for his children, subject to the pay
ment of SIS a month to him for life out
of the rents. There is certainly much
evidence that it is difficult to reconcile
with that theory, as Well as some in
support of it. We may even assume that
the defendants thought they were being
magnanimous toward the plaintiff at
least to the extent of thinking that the
new arrangement was better for him,
considering all his troubles, than the
old. But in view of the then existing re-
lationship of principal and agent with
reference to this property, the relation
ship of attorney and client, the plain
tiff's weaknesses and his trust in the
defendants, the defendants interest in
the transaction and the inadequacy of
the consideration, equity must on we'll
established principles undo the transac-
ton. The presumption from such rela-
tionships is against the defendants. It is
for them to show adequacy of considera-
ton and that the parties were dealing
with each other at arms length or that
they advised and acted with reference
to the plaintiffs interests, as If the lat
ter had been dealing with third party
The plaintiff, while he may have under
etx Il
done, apparently did not fully realize
what it all meant. He trusted to the de-
PENDANTS to do what was best for him.
The presumption of undue influence
arises from the existence of the fiduciary
or confidential relationship. Such rela-
tionship in this connection has a broad
meaning. 1t includes the relationship of
attorney and client and even that of
principal and agent. The presumption is
stronger where the relationship exists in
respect of the property in question, where
the party claiming to be injuriously af-
fected is mentally inferior to the other
and where the consideration paid is not
clearly adequate. This presumption
arises in the present case and has not
been overcome
THE defendants further rely on ratifi-
cation or acquiescence, on the ground
that If he did not realize what was done
at the time, he did afterwards and yet
continued to accept for several months
the payments of SIS a month and to rec
ognize the transaction in other ways. A
complete answer TO this is that the
influence which the defendants ex-
ercised over the plaintiff and the
confidence he reposed in them con-
tinued during this period He was,
as already noted, living with the
I1fa
appear to have acted with any intent to
recognize the validity of the transaction
after he was removed from such infiu-
ence.
The defendants further rely on the
plaintiffs failure to tender to thes defend
ants what they haid paid out under the
agreement, on account of debts or the
annuity. The plaintiff in his bill alleges
that he had requested the defendant,
Mr.. Ma COON, for an account, but that
the latter had failed to render one and
he prays for an accounting The defend
ants had been in possession and received
the rents of the land and, for aught that
the plaintiff knew, SO far as appears, had
received more than they paid out. The
defendant, Mr. Magoon. testified that the
mortgage debt, which was more than
half of the $4,000 indebtedness, was not
paid until after the suit was commenced.
At the hearing the plaintiff offered to
pay all that the defendants had paid out
under the agreement. Apparently no
question as to tender was raised in the
lower court. The Court decreed not only
that the deed was null and void and that
it be set aside and cancelled, and that
the defendant, Mrs. Magoon, be a trus-
tee for the plaintiff of the property in
question, and that the defendants exc
cute deed of the property to the plain
tiff, and account to MIN for all moneys
received by them therefrom and as his
agent, but also made al tnese conditional
upon his paying to them or into court all
sums paid by them towards the $1,000
debts and SIS payments. Under these
circumstances the defendants are amply
protected. and ii would not be equitable
to allow them to now rely upon failure
to make a tender prior 70 bringing the
suit
'.Of course those who took leases of
the property from Mrs. Magoon after she
acquired title under the deed in question
would not be affected by the decree in
this case, for they are not parties We
presume, also. that they would not be
affected even if they were parties, for
the reason that they took innocently.
But it may be that if the deed were set
dSiue stS nun ana VOlO dL the time OF It's
execution, Christley would technically
have right of action against the Ma
goons for having made the leases, even
though he might be able to recover only
nominal damages, for apparently the
leases were made on terms as favorable
to the lessor as could be obtained. He
who seeks equity must do equity. Christ
ley was not altogether blamelesS. He
was aware of the execution of the leases
and while We do not go SO far as to
hold that his knowledge and failure to
object operates an estoppel against
his setting up undue influence. because
the undue influence continued, yet he
may as a matter of equity be given re-
lief only On condition that he place the
defendants as far as possible In their
former position, He has elected to come
into equity rather than go to law. In
our opinion it viii be as much as he can
fairly ask so far as the deed is concern
ed to have Mrs. Magoon declared a trus-
tee for him and TO convey the property
to him subjec ito the leases, and not to
declare the deed null and void and order
it cancelled.
THE case is remanded to the Circuit
Judge with directions to modify the de-
cree in conformity with these views and