13 Haw. 402 | Haw. | 1901
OPINION OF THE COURT BY
Tbis is a suit to cancel a deed, dated November 2, 1898, from tbe plaintiff to tbe defendant Emmeline M. Mago on, of 2.47 acres of land on tbe easterly side of Eort street between School and Yineyard streets in Honolulu. Tbe consideration named in tbe deed is $10,000 but tbe real consideration was an oral promise to pay tbe plaintiff’s debts amounting to about $4,000 and a written promise of both defendants to pay bim $75 a month for tbe remainder of bis life. Tbe debts wei’e in fact paid though a large portion of them not until after tbe commencement of tbis suit.
Tbe grounds relied upon are fraud and mistake. In our opinion tbe decree appealed from granting tbe relief prayed for should subject to tbe modification hereinafter mentioned be affirmed on tbe ground that assuming that tbe defendants intended to act fairly and justly towards tbe plaintiff in tbe transaction and thought they did so, yet considering their relations to bim and influence over bim, bis weaknesses, and tbe nature and amount of tbe consideration, the transaction was one that equity cannot uphold. It will not be necessary to review at length tbe voluminous testimony and lengthy briefs, all of which we have carefully examined.
The plaintiff is a Welshman some sixty years of age. He is a carpenter by trade and a good workman at that. He also carried on a small dairy and poultry business on the land in question, where his home was, and seemed to do pretty well at that.
The transaction in question came about in this way. The plaintiff was worried and despondent over his dairy, his property and tenants and his wife’s desertion and was suffering from rheumatism. He had just inserted notices in the papers offering his cows and chickens for sale and his land for lease. One Wright had at once applied for a lease of a portion of the land and to purchase some of the cows and chickens. He and Magoon and Christley were negotiating in regard to- these matters. On the evening of October 31,' 1898, the defendants paid one of their visits to the plaintiff about sundown and after some talk over the plaintiff’s troubles, and the advisability of his ceasing
Much attention has been paid by counsel to the question of the adequacy of the consideration. Various points were discussed, such as the value of the monthly sum payable to the plaintiff and the value of his wife’s unreleased dower interest, as determined by mortality and annuity tables and by the judgment of business men, the value of the plaintiff’s land subject to the inchoate dower right viewed from the standpoint of an investor and that of a speculator, the extent of depreciation caused by the dower right, its effect on purchasers and upon lenders of money, the value of the property at the time of the transaction in question and at the time of the trial, its value based on the income which it yielded at the time and that which it could be made to yield and that which it was shortly afterwards made to yield, &c., &c. As matter of fact the property consisted of 2.47 acres of land in fee simple in a residence portion of the city where there was great demand for small cottages. Those portions of it which were then leased yielded in rents $113 a month. An arrangement had just been practically made to lease another portion for $50 a month, but shortly afterwards the proposed tenant concluded to give up the lease or declined to take it. In January following, a portion was leased at $50 a month and in February another portion at $50 a month for the first ten years, $75 for the second ten years and $100 for the third ten years. Thus within about four months the income was increased to $213 a month, with the prospect of further substantial increases in the future. A number of witnesses acquainted with this property and familiar with values here were examined as to its value, and from these it may be gathered that $25,000 is a conservative estimate of its value at the date of the deed and free of dower right. Much stress is laid on the outstanding dower right and the extent to which it would affect the value of the property in the opinions of business men, whether for the purposes of sale or mortgage security. The plaintiff was about 60 years old and’ his wife about 30. Looking at the question from the plaintiff’s standpoint, so long as he held the property he did so just as any
The plaintiff did not have independent advice, nor was it suggested to him that he take such advice. No suggestion was made that better terms might be obtained. The deed contained a covenant of warranty except as against the dower right although there was an outstanding mortgage on it, the debt secured by which was part of the $4,000. The deed contained no provision for the assumption of the mortgage debt by the grantees, nor was it made conditional upon the payment of the $75 a month. There was no written promise whatever for the payment of the debts and no security given for the payment of the annuity. The debts were in fact not all paid for several months. The defendant Mr. Magoon was acting for both parties. He suggested the terms of the agreement and the method of carrying it out and the plaintiff apparently submitted to everything he proposed without question. Mr. Mágoon testified that he did not suppose that $5,000 more or less would have been a consideration to the plaintiff but that all he wanted was a certain amount monthly. Mrs. Magoon testified that she thought that the plaintiff would have taken $50 a month if that only had been offered.
"We need not go into the question as to whether the plaintiff,' as he now claims, thought he was signing a deed in trust for his
The defendants further rely on ratification or acquiescence, on the ground that, if the plaintiff did' not realize what was done at the time, he did afterwards and yet continued to accept for several months the payments of $75 a month and to recognize the
The defendants further rely on the plaintiff’s failure to tender to the defendants what they had paid out under the agreement, on account of debts or the annuity. The plaintiff in his bill alleges that he had requested the defendant, Mr. Magoon, for an account but that the latter had failed to render one, and he prays for an accounting. The defendants had been in possession and received the rents of the land and, for aught that the plaintiff knew, so far as appears, had received more than they paid out. The defendant, Mr. Magoon, testified that the mortgage debt, which was more than half of the $4,000 indebtedness was not paid until after the suit was commenced. At the hearing the plaintiff offered to pay all that the defendants had paid out under the agreement. Apparently no question as to tender was raised in the lower court. The court decreed not only that the deed was null and void and that it be set aside and cancelled and that the defendant, Mrs. Magoon, be a trustee for the plaintiff on the property in question and that the defendants execute a deed of the property to the plaintiff, and account to him for all moneys received by them therefrom and as his agent, but also made all these conditional upon his paying to- them or into court all sums paid by them towards the $4,000 debts and $75 payments. Under these circumstances the defendants are amply protected and it would not be equitable to allow them to now rely upon failure to make a tender prior to bringing the suit.
Of course those who took leases of the property from Mrs. Magoon after she acquired title under the deed in question would not be affected by the decree in this case1, for they are not parties. "We presume also that they would not be affected even if they were parties for the reason that they took innocently. But it
The case is remanded to the Circuit Judge with'directions to modify the decree in conformity with these views and for such further proceedings as may be proper.