The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-12-16
]. k|DWE[.L
WINS SUIT.
Deed to Valuable
Manoa Land
Is Good.
Held That Thos. Metealf
Made Bargains With
Ills Eyes Open.
Supreme Court Opinion by Perry
j., Frear, C. J.. Concurring;
GaIbraith. ]. Dissenting.

The Supreme Court, by an opinion of
Justice Perry and a 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 dissenting
opinion.
It was a bill praying for the cancel
Iation 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 $1,000
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 500 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 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-haf of the, land described, that
the deeds be Cancelled and that re-
conveyance be made as already stated.
THE ARGUMENT.
The avernents 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-
cepted 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 8, 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
calf. father of Thomas, and therefore
not an heir under the will of Theo-
phllus; 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.
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
understood that the interest conveyed
was not to be in any event greater than
an undivided one-half or intended to
limit the operation of the deed to that
extent. On the contrary it does show
that both parties understood that all of
the grantor's interest, whatever it
might be. without linitation-large or
small-was being sold and purchased
and was to pass by the deed, and this,
too, although both parties doubtless
supposed that in all probability the
grantor's interest would prove to be
not more than one-half. The parties
specialized. Now that the interest in
question has proved to be or seems to
be the whole, equity cannot grant the |
grantor relief
CHANCES BOTH WAYS.
1t is shown from the evidence that |
when the first deed was executed Frank
Metcalf, the life tenant, was still alive
and there was a possibility that Emma
might decease before him, in which
case the whole estate would pass 20
Thomas under his grandfather's will
and to Kidwell under the deed. Thomas
realized this and the second deed was
intended to be confrmatory of the first
At the time of its execution there were
rumors of many claims adverse TO
Thomas, some in whole and some in
part, and good prospect of much liti-
cation. The respondents policy was to
buy up all the claims or interests pos
sible. He purchased those of Emma
and Thomas and attempted, without
success evidently, to purchase two
others. those of Mrs. Rowland and of
one Prosser. 1t might prove even that