The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-06-24
UNEXAMPLED
LEGAL ACTS
Judge Gear Talks
Sharply About
Magoon.
Decision For Defendant
In Equity Suit of
Dee vs.. Smith.
Course Advised in One Case At
tackled in Other as Fraud
By Same Lawyer.

In deciding the case of L. H. De-
vs. W. H. Smith in favor of the de
PENDANT, Judge Gear comments severely
on the conduct of J. Alfred Magoon
attorney for plaintiff. For a proper
understanding of the decision the facts
of the case should be taken in their
order.
L. H. Dee and others brought an ac-
ton against Frank Hustace, ]. J. Egar
and Frank II. Foster to recover moneys
they had paid themselves out of funds
of the Kamalo Sugar Co. as its promot-
ers. Judgment was given against de-
PENDANTS for $997S1.SS by Judge Hum
phreys, of which amount Hustace paid
his proportion of one-third.
Magoon and Dee advised and urged
Hustace to dispose of his property, SO
as to avoid execution upon it for salts
flying the remainder of the judgment,
and that he might turn round and join
the Kamalo plaintiffs in prosecuting
Egan and Foster to recover such judg-
ment remainder. Part of the scheme
was that Hustace was to give a bond
to protect the judgment creditors, in
the event that nothing could be recov-
cred from his co-defendants in the Ka-
malo suit. Hustace did not give the
bond, but he paid Magoon an attor-
ney's retaining fee of $3.50 to bring an
action against Egan and Foster. He
also took Magoon's advice to the ex-
tent of deciding a portion of his prop
erty to his (Hustace's) brother. The
action last mentioned was never
brought, but Magoon kept the $50 fee.
Hustace gave a deed of other prop
erty to w. H. Smith, defendant in this
case. The actual consideration was $780,
0O0 but on the advice of a banker the
nominal consideration of 81 was stated
in the deed so as to save stamp ex-
pense. 1t was Sought by the plaintiff
to show that this was a fraudulent
conveyance to defraud the Kamalo
Judgment creditors, but it was proved
in court that Hustace was being press
ed with foreclosure proceedings to en-
force payment of a note of $4,000 due
the LouisSon estate; that he could not
raise the money on the land from any
of several banks applied to, but by
certain banker was referred to Smith;
that Smith under agreement to be CIV
en- the land together with certain sugar
stocks lifted the Louisson note by pay
ing its amount in full.
Afterward the same property as that
conveyed to Smith was levied on, at
the instance of Dee ct al, and being
sold under execution was conveyed by
the High Sheriff to the purchaser, L.
H. Dee, for $1,000. Dee next brought
the present suit as one to quiet his
title to the property.
Judge Gear especially reprobates At
torney Magoon's conduct in attacking
a deed on the ground of fraud, when
he had advised the very maker of that
deed to make similar deed with the
purpose of defeating the claims
of his creditors. Attorney A. G.. NJ.
Robertson is quoted in evidence as stat
ing that he had strongly advised Hus-
tace against going into the Dee-Ma-
COON scheme of disposing of his prop
erty to escape from his legal obliga-
tions. Robertson told him to get an
other attorney if he wanted to take
the course in question, he having been
for Hustace, Egan and Foster
in the Kamalo suit. 1t was also testi-
fed by Robertson that he had caution
ed Magoon against proceeding with the
scheme.
It-was in evidence that Dee, advised
Tfa cd nv To f,.xri n
put Hustaee up to the scheme, told him
1T was shame" that he (Hustace)
should have to pay the other defend
ants share of the judgment besides his
own. Judge Gear. commenting on this
sentiment, asks about the rights of
other creditors of Hustace than the Ka-
nalo plaintiffs. For instance, the |
Louisson estate, with its claim of s1O, |
100, which would have been equally i'm |
oeriled with all others under the Dee |
Magoon plan.
Judge Gear quotes the ancient |
that he that seeks equity |
must do equity and must have clean |
hands" making the following COM |
nents:
Mr.. Magoon by accepting employ
nent from Mr.. Hustace and receiving |
lis fee thereafter was bound to act for
he interests of Mr.. Hustace in saving
lin from the payment of the balance
II the Kamalo judgment. That was
he purpose of the employment and
ir. Magoon could fulfill the contract
My by giving 10 the case his best and
most faithful endeavors.
He accordingly first advises Mr.
1ustace to dispose of all his property
n that he will no execution proof Mr..
Iustace subsequently follows this ad-
ice. Mr.. Magoon and Mr.. Dee on
earning that Mr.. Hustace has done the