6 Haw. 235 | Haw. | 1879
Decision of
It is alleged by this bill that the defendant Pope executed an instrument on the 8th of February last, which is called, throughout these proceedings, an agreement to sell the property in question, and which partly reads as follows: “For the consideration hereafter mentioned and one dollar, George Pope
The defendant Pope in his answer admits that he signed the instrument, but says that he did so under the belief that it was a mere basis for the negotiation of the sale of the property, and was not to be binding if he (Pope) could get better terms from other parties.
It is alleged in the bill that the defendant Pope gave up the property to plaintiff’s agent, and the defendant Pope replies that he did not do so, but that some person in the employ of the plaintiff did take forcible possession without his authority; and he likewise denies that he gave up the books of account in the bill of complaint mentioned.
A great deal of testimony was taken upon this point, and great stress seems to be laid upon it by the defendant Pope. But the whole thing is immaterial, since the question now is, not whether the defendant Pope did give the property up, but whether he ought to have given it up, and whether the defendant ought now to be compelled to give it up. The testimony is, probably, introduced by the plaintiff, for the purpose of showing that the action of Pope was not that of one who thought he had a reserved right to find another purchaser for a better price; and certainly it is clearly proved, by Mr. Pope’s testimony itself, as well as that of others, that he did deliver up the books to Mr. Green.
The agreement of the 8th February contains no clause indicative of any reservation of a right to re-sell the place; and Mr. Green admits that before the signing of the agreement, he advised Mr. Pope to try and get better terms, but says that Pope replied to him that he had been to everyone and could do nothing, and avers that neither at the time of making the agreement, nor subsequently, did he make any condition of the kind; and Mr. Pope, who was examined on the stand, does not show, at any time, any conversation with Mr. Green which indicated a permission on Mr. Green’s part for him to re-sell the land. It is clearly established, and Mr. Green testifies to the same effect,
“If a man acquiring property has, at the time of the acquisition, notice of an equity binding the person from whom he takes in respect of the property, he is bound to the same extent and in the same manner by the same equity. The purchaser of property if the vendor has contracted to sell, is, if he has notice of the contract, bound by the same equity by which the vendor whom he represents was bound.” Kerr on Fraud and Mistake, p. 234, and the cases therein quoted.
Now, it appears by Lidgate’s testimony that when he came to Honolulu, he referred to the records of the office of the Registrar of Conveyances, and finding no deed registered there, deemed himself free to purchase this land. But, says Judge Story, Equity Jurisprudence, Vol. I., §397: “The object of all acts of registration is to secure subsequent purchasers and mortgagees against prior secret conveyances and encumbrances. But where such'purchasers and mortgagees have notice of any prior conveyance, it is impossible to hold that it is a secret conveyance, by which they are prejudiced. On the other hand, the neglect to . register a prior conveyance is often a matter of mistake or of overweening confidence in the grantor, and it would be a manifest fraud to allow him to avail himself of the power, by any connivance with others, to defeat such prior conveyance.”
Now let us apply these principles of law to Lidgate’s position and see how he stands. He says he saw the Gazette, in which there was a notice that the sale to Green had been made. Now this, of course, would not be proof that the man sold his place, but was sufficient to put Lidgate on his guard. He says that he asked Pope whether he was going to take him down to Honolulu on a fool’s errand. He says, farther, that he had the conversation with Mr. Arnold, which Mr. Arnold details, and Mr. Arnold say's he had the copy of the agreement which he had sent for.He further says that he asked Pope whether he had sold the place, and that Pope told him he had not; that he heard various statements about it, so he went to headquarters (Mr. Pope), and adds, “I didn’t want to know whether he (Pope) had sold the place or not, because he (Pope) told me he had not.” Now the difficulty in that respect was that it appears that he was notified that there was an agreement, a copy of which was directly accessible to him, but it appears that he didn’t desire to read it; and Pope therefore was not the headquarters, but Green was; Pope was the last man from whom he could seek information on the subject, for the very allegation which Arnold was making in behalf of his employers was that he had this agreement or a copy of it; that he would send for it. Now it was Mr. Lidgate’s duty to look at that agreement. One cannot shut their eyes and ears and then say the facts do not exist.. Beside all this, Mr. Lidgate admits the conversation with Mr. Green before he gave the notes for the land as by his agreement, in which conversation Mr. Green set forth his agreement and offered to show it. Lidgate admits that he knew thoroughly that Pope was not acting in good conscience, but says that he didn’t think that Mr. Pope’s good or bad conscience had anything to do with him;