The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-12-18
]. HOWELL
WINS SUIT
Deed to Valuable
ManOa Land
IS Good.

The Supreme Court, by an opinion Of
Justice Perry and concurring opin-
ion of Chief Justice Frear, reverses the
decree of Judge Robinson in the suit
of Frank Godfrey, as trustee for
Thomas Metcalf, VS.. John Kidwell.
Justice Galbraith files a dissenting
opinion.
1t was a bill praying for the cancel
lation of deed and the reconveyance
by the respondent to the complainant
of the land in question upon the return
to the respondent of the sum Of $500
and interest. Judge Robinson granted
the prayer of the bill and the respond
ent, Kidwell, appealed.
FACTS IN CASE.
Thomas Metcalf executed to John
Kidwell on April 4, 1899, for the con-
sideration of 800 a deed of his entire
right, title and interest In the land OF
Wailele, Manoa, oahu, containing an
area of 1910 acres. Metcalf was then
under age. He came of age on jan
uary 10, 1901, and on February 4, 1901,
for the consideration Of $4,000 gave Kid
well a second deed for the same prop
erty. The prayer of the bill was for
a decree declaring that the two deeds
were intended and understood by both
parties to convey and did convey no
other greater interest than an undivid-
ed one-half of the land described, that
the deeds be Cancelled and that a re-
conveyance be made as already stated.
THE ARGUMENT.
The averments in support of the petit
ton were to the effect that Thomas, at
the time he executed the deeds, was
given to understand that by the will of
his grandfather, Theophilus Metcalf,
he owned a half interest and his sister
Emma the other half interest in the
property: that being of weak mind and
ignorant of the value of land he ac-
copied the offer OF $4,000, supposedly for
the one-half interest, unaware that the
true value of his half interest was
more than $1,000; that on March s, 1899,
Kidwell purchased of Emma all of her
right, title and interest in the proper
ty, he believing at the time that it
was an undivided half she conveyed to
him; that the Supreme Court in June.
1902, decided that Emma was not the
lawfully begotten child of Frank Met
nf
not an heir under the will of Theo-
philus; that after that decision Kidwell
for the first time claimed that by the
two deeds Thomas conveyed the whole
Of the land and not one-half only, and
that the whole land was, as Thomas
had ascertained since the making of
the deeds, of the value of $4,000.
THE PARTIES UNDERSTOOD. 4
Justice Perry gives the keynote of
the Supreme Courts opinion in this
passage:
THE evidence does not show that the
parties to the deed or either of them
that the interest conveyed
was not to be in any event greater than
IN undivided one-half or intended to
limit the operation of the deed to that
extent. On the contrary it does show
hat both parties understood that all of
he grantor's interest, whatever 1t
might be, without iimitation-large or
'mall-was being sold and purchased
md was to pass by the deed, and this, |
90, although both parties doubtless
that in all probability the |
interest would prove to be |
lot more than one-half. The parties |
'peculated. Now that the interest in |
question has proved to be or seems to |
'e the whole, equity cannot grant the |
,rantor relief"
CHANCES BOTH WAYS.
1t Is shown from the evidence that
When the first deed was executed Frank
ietcalf, the life tenant, was still alive
md there was possibility that Emma
night decease before him. in which
ase the whole estate would pass 20
Thomas under his grandfather's will |
nd to Kidwell under the deed. Thomas
ealiZed this and the second deed was
Intended to be confirmatory of the first
1t the time of its execution there were +
umors of many claims adverse to
Thomas, some in whole and some in
49, u'iA u Soou Ol lltl-
alton The respondents policy was to
uy up all the claims or interests pos
ible. He purchased those of Emma
nd Thomas and attempted, without
uccess evidently, 10 purchase two
theirs, those of Mrs. Rowland and OF
ne Prosser. 1t might prove even that
he interest OF Thomas was less than
ne-half. I
NO FRAUD SHOWN.
Finally II is found in substance
nat there was no misunderstanding
etween the parties and nothing TO I
'arrant finding of actual fraud. The I
arties were not in any relation OF I
rust or confidence but dealt at arms
angth.
The decree appealed from is revers-
d and the case Is remanded TO the {
1rcuit Judge for the entry of decree
isnissing the bill and for such fur
her proceedings as may be neces-
ary."
Thomas Fitch for complainant; Rob.
rtson & Wilder for respondent.
NO CASE FOR EQUITY.
Chief Justice Frear, in concurring. {
lives his reasons for considering the {
aSe not one for noutt n hla rpliaf Ja &