The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1904-06-23
COURT SCORES
LAWYER
TODAY

Judge Gear this morning decided the
case of L. II. Dee VS. W. H. Smith. The !
judge declared that the case is without |
precedent in the annals of jurisprud- !
ence, or at least that he has been un-
able to find any like it. The suit was
to set aside a deed by Frank Hustace to !
Smith on the ground of fraud, and
the court holds that the deed it is sought
to set aside on such grounds is the
same as one made at the instance OF
Magoon and Dee, who seek to break
it, Judge Gears comments are I'M
sparing. The suit was an aftermath
of the old Kamalo sugar company case,
in which judgment for $S9, 7S1SS was
given against Frank Hustace. f. H.
Foster and J. ]. Egan, and numerous
executions were ssued against them in
efforts to collect the judgment. The
testimony shows that Hustace decided
the land in question for $4,000, paid
| by Smith and that three months later
the same land was sold under execution
to Dee. under the Kamalo Judgment.
for 81 900. On finding out about the
!
title, claiming that the deed to Smith
had been for the purpose of defrauding
the holders of the Kamalo judgment
According to Gears decision, after
Hustace had paid his onC-third of the
Kamalo judgment Magoon and Dee
advised him to deed away his other
property so that they could proceed a
gainst Foster and Egan, holding that
- l.. all
pay all the Judgment. The court quotes
testimony of Attorney Robertson to the
effect ha Magoon urged a transfer of
property for this reason. Robertson
stated that he advised against it ana
told Hustace 20 get another attorney if
he wanted to do it. Robertson having
been counsel for Hustace, Egan and
Foster together in the Kamalo suit.
Magoon was paid a retainer Of $50
to bring a suit against Egan and Fos-
ter. after Hustace's property should
have been gotten out of the way, says
the court, but the suit was never
brought. HUstace was to put up a
bond Magoon and Dee testified, so
that the Kamalo plaintiffs would be
secured anyhow This is the PROPOSE
ton with which the court finds fault.
Judge Gear says that Hustace was
urged to convey all his property so that
he might be able to swear that he had
none and that then when he had done
so. such conveyance was cited as proof
of fraud in the present case. The court
quotes the equity doctrine of clean
hands" against such a contention, and
says:
Mr.. Magoon by accepting employ
ment from Mr. Hustace and receiving
his fee thereafter was bound to act for
the interests of Mr. Hustace in saving
him from the payment of the balance
of the Kamalo judgment. That was
the purpose of the employment and
Mr.. Magoon could fulfill the contract
only by giving to the case his best and
most faithful endeavors.
HE accordingly first advises Mr..
Hustace to dispose of all his property
so that he will be execution proof. Mr..
Hustace subsequently follows this adj
vice. Mr.. Magoon and Mr.. Dee on
learning that Mr.. Hustace has done the
very thing they both wanted him to dc
use this act of Mr.. Hustace as one OF
their weapons to fight Mr., Hustace in
this suit, Mr. Magoon still having the
fee Mr.. Hustace paid him to protect
7 him from any further liability I doubt
II ever in The annals of Jurisprudence q
case such as this can be found. have
! been unable to find any"