The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-02-24
DECISION.

The Chief Justice: In this case the
ther time for consideration. The court
is of the opinion that the decree appeal
ed from should be affirmed in so far as
it dismisses the bill and denies the re-
lief prayed for. 1 notice that in the de-
cree there are some other provisions
which have not been touched upon by
counsel in their argument and possibly
those provisions Were not properly in
serted in the decree under this bill. AS
to that we need to express no opinion
simply the decree is affirmed as far
as it dismissed the bill and denied the
relief prayed for.
There are other questions, some sug-
gued and some suggested by the plead
ings in the case, which 1 will not go
into.
The three main points argued by
counsel seem to be those of election,
and the innocence of the defendant in
the transaction, and the matter of the
estoppel, and the view that [ take of
the case without committing my asso-
ciates for all I may say think it
would be unnecessary for me to go into
of election and the question of the in
nocence of the defendant in the trans
action-I base my opinion upon the
other ground, that of estoppel.
The plaintiff certainly seems to have
been an alder and an abettOr and in
stigator of Mr. Hustace's transactions
and he comes into court without clean
hands, and I do not see how he can
r,r,1- -
which he has connived at and advised
and instigated.
MIR. Justice Hartwell When the
plaintiffs attorney had closed his open
ing remarks I did not see how the bill
could possibly be sustained and that
opinion was fixed still more clearly in
my mind after his closing remarks. In
the first place it seems to me-and here
I am not trying to express the views of
my colleagues on the bench, merely my
own-that the bill is not so framed as
to hold the defendant as a fraudulent
grantee. Saying that this conveyance
is voluntary and without consideration
does not make it so. A copy of the
is attached and made a part
of the bill and it is not a voluntary
deed, it is for consideration of one
dO4lcLT III OIdGI5 DIS l understand the
proper pleading, to make the grantee
the defendant-liable as a fraudulent
grantee for participating in an attempt
ed fraud on creditors there should be
a clear and definite averment that no
consideration was paid or that an ut
terly Inadequate consideration was
paid. I think therefore that the bill
ought not TO have been sustained on the
pleadings.
Then as to the election by the plain
tiff of these proceedings, confess that
the way the Michigan case disposes
Of that question appeals to my sense
of equity: whether it was contrary to
its own presidents or not is immaterial
TO me; 1 like the equitable view pre-
scented by that case, Notwithstanding
the difficulties that arise by requiring
the removal of cloud upon title be-
fore sale. In many cases, certainly
it is for the interest of creditors it
seems to me. that the sale shall not be
made first, and the purchaser after
having got the benefit of the purchase
at the price commensurate with the
circumstances. come in to get the bene- |
ut OF the value when the alleged fraud |
ulent deed shall be set aside-but as I |
say. am simply expressing my own |
Then as to the transaction itself As |
far IS the evidence goes it appears to |
me That it is in absolutely good faith |
How anybody can say. and I have lis |
tened for two hours very patiently. as |
patiently rs I could. to an argument !
hat this grantor Hustace and the de- |
PENDANT, had entered into conspiracy
to EtfFrFrlF the creditors or, rl,.t .-.-r,