Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-12-15

them understood That the interest con- |
veycd was not to be in any event great |
er than an undivided one-half or in
tended to limit the operation of the |
deed to that extent On the contrary |
It does show that both parties under !
stood that all of the grantOr's Inter- |
est, whatever It might be, without lin
itation.-large or small-was being sold |
and purchased and was to pass by the
deed.
That deeds are not to he lightly set
aside there can be no doubt. In order
to Justify a court in resembling or re-
forming such written instrument, the
mistake or other ground relied upon
by the petitioner must be established
by evidence which is clear and con-
vincing. The evidence in this case not
only fails to comply with this rule but
clearly shows that there was no mis-
take such as is contended for
There is nothing in the evidence to
warrant a finding of actual fraud.
The decree appealed from Is reversed
and the cause remanded to the Circuit
Judge for the entry Of a decree dis
missing the bill and for such further
proceedings as may be necessary.
Thomas Fitch for complainant; Rob-
ertson 4 Wilder for respondent.
Chief Justice Frear concurs in the
foregoing conclusion. There Is no
doubt, he says. that courts of equity
go very far in relieving from mis-
mistakes of law, some of them dis
| tinguishing between mistake and ig-
nOrange OF law, and most courts relieve
from mistakes as to private rights,
which, although often arising solely
from mistakes of law, are Of a mixed
character and are regarded practically
as in the nature of mistakes OF fact.
In the present case, the alleged mis-
take relied on may, perhaps, be re-
garded as of the last mentioned kind.
The mere fact that the deed in form
'purports to convey all the interest OF
the grantor would not Of itself prevent
relief, even though both parties under
stood precisely what the language was
and its legal effect, If they in fact
contracted on the basis of a particular
interest mistakenly believed by both
parties. or by one in consequence OF
incquitable conduct of the other, to be
the interest actually conveyed.
The facts were equally known to
both parties, 80 far as appears. and
both contracted with reference TO the
uncertainties. whatever they were.
Justice Galbraith. dissenting, says
IN part: VI cannot concur in the con.
clusion announced above by the mai.
GRITTY Of the court
The Circuit Judge found that while
the consideration OF three Thousand
dollars recited in the second deed was
less than the value OF one half the land
conveyed sin it was not so grossly
Inadequate as to Justify the court In
setting aside the deeds on that ground
thai the deed was executed under &
mutual mistake of fact; that each o.
the parties believed at the time tina
Thomas MetCalf owned only n one hal
interest in the land and that that wal
OF he intended to convey and all tina
John Hidwell expected that the doe
did convey TO him,
,,,,,,,o,,o,, 49,. ,ro o,,idonaa All tho do
l-''ld 80 ,ha CHI, Id shouId ~
,,mrr,,od
The general doctrine Is that cOur
or onriIv uiII giant Ire alternative n
d.consi,o raIioS nc tho circvmstorce
,,,a,. raa,,ira fror, ,ho .o,so,uaDco
~ o,,. n,a,or,aI r,is,aI,o 10 Zoo, IN,
nm M, raIioyo ogairst n,istol,o =
law and ,hat n,is,oI,o roIotiyo IN ono.
',rI,ata ioaaI ,.,nhts ~. ir,oros, &, ,roo,
"a ne r,Is,oLe 90 sact
t'ndor tha Iau, aoyorriro sroorroti,.
oo,,,raot, ,ho r,,Io 10 ,roII so,,Iad IN,
,ha aran,ont % ahonoo or Tho tbI,o -
o,o,,r ,bo, 10 ,,,,oor,,,,, p,,s, ho Lpo,.,
:, tho nar,ias n, tho Tina ", on,erir
in,o tbe contract and the norties ar
copsidorad IN have caIcnIo,eo III
4,