The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-12-16


NO FRAUD SHOWN.
Finally, it is found in substance
that there was no misunderstanding
between the parties and nothing to
warrant a finding of actual fraud. The
parties were not in any relation of
trust or confidence but dealt at arms
length.
The decree appealed from is revers-
ed and the case is remanded to the
Circuit Judge for the entry of a decree
dfsmissing the bill and for such fur
Their proceedings as may be peces-
sary."
Thomas Fitch for complainant; Rob-
ertson & Wilder for respondent.
NO CASE FOR EQUITY.
Chief Justice Frear, in concurring,
case not one for equitable relief. He
says the circumstances must be con-
sidered at the time of the transaction
and not as they turned out afterward.
and if the parties really intended to
take their chances and to make
speculative contract equity cannot re-
lieve. From the evidence he is inclined.
to believe they took their chances as
to all over as well as to all under one
half.
THE DISSENTING OPINION.
Justice Galbraith, in declaring he
cannot concur in the conclusion of the
majority of the court, says:
The Circuit Judge found that while
the consideration of three thousand
dollars recited in the second deed was
less than the value of one-haIf the
land conveyed still it was not so gross.
~ inadequate as to justify the court in
setting aside the deeds on that ground;
that the deed was executed under a
mutual mistake of fact; that each of
the parties believed at the time that
Thomas Metcalf owned only one-half
interest in the land and that that was
all he intended to convey and all that
John Kidwell expected that the deed
did convey to him.
ITO my mind these findings are fully
supported by the evidence and the de-
cree of the Circuit Judge should be at
firmed.''
AN UNFAIR ADVANTAGE.
He points out that the decision of
the Supreme Court depriving Emma
Metcalf of her interest was delivered
more than a year after the date of the
deed, and was contingency not
thought of when the bargain was
made. The purchaser should not be
permitted to take advantage of the de-
cision to the great detriment of his
grantor.
Justice Galbraith says 'the deed is
unfair and unjust and ought to be re-
formed on this ground alone,'' the evil
dence supporting the finding of the Cir
cult Judge that three thousand dollars
was not a fair consideration
NEITHER JUST NOR RIGHT.
again the method pursued by the
defendant in obtaining these deeds does
not appeal to my sense of justice and
right the dissentient Justice pro-
ceeds. First we find him taking a deed
from a minor for property worth many
thousand dollars for paltry consid-
Grafton of one hundred dollars. Then
as soon as the minor arrives at legal
majority the defendant hires two law
yers and the three of them set after
the young man with the purpose of in
ducing him to execute a confirmatory
deed conveying his Inheritance to the
defendant. The defendant knew that
the young man was without business
training or experience and that he
could not resist the temptation to ac-
cept an offer of a large sum of money
for his inheritance whether it was a
fair consideration for it or not
APPROVES THE DECREE.
In conclusion the dissenting opinion
reads:
II am convinced that the ends of
justice would be subserved by granting
relief against this most in
equitable transaction, at least to the
extent of affirming the decree rendered
by the Circuit Judge"