The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-05-24

after h. Wss removed from such iuau.
tnee
''Thr defendants nfihef rely on tho
plahtins failure 20 tender TO tho defend
ants whht they hald paid out under tho
agreement on account " debts or the
annuity The plaintiff IN hs hill niieaea
that he had requested The defendant
Mr.. Maroon. fot an account. hut that
the latter had failed 90 render one. and
he pfais Tor an accounting The defend
ants had been IN possession and received
the rents W the land and. for auFht that
the plaiutln know. 80 far as appears, had
received moro than they paid out The
defendant, Mr. Magoon. testified that the
mortgage debt which was more than
haif Of the fi,oM Indebtedness, was not
paid until after the suit was commenced
AZ the hearing the plaintiff offered TO
pay all that the DEFENDANTS had paid cut
under the agreement Apparently no
question as 60 tender was raised In the
lower court. The Court dccreed not only
that the deed was null and void and that
II I've set aside and cancelled, and mat
the defendant, Mrs. Magoon, he trus-
tee for the plnlntir of the property in
question. and that the defendants exc
cute deed OF the property to the plain
tin, and account TO MIN for all moneys
received by them therefrom and as his
agent. but also made an tuese 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 tender prior TO 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 We're parties, for
the reason that they took innocently.
But II may be that If the deed were set
aside as null and void at the time OF It's
execution, Christley would technically
have a 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 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 as 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 1t will be as much as he can
fairly ask so far as the deed is concern
ed to have Mrs. Magoon declared 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
1t cancelled.
1.-THE case is remanded to the Circuit
Judge with directions to modify the de-
cree in conformity with these views and
for such further proceedings as may be
proper