2 Haw. 563 | Haw. | 1862
An abstract of the bill and answer have hitherto been given by the Court on questions/whick have arisen in the progress of the investigation, and, therefore, I shall only advert to the allegations, as they -involve questions material to the issue now presented.
The complainant avers that he conveyed to Charles W. Vincent, for the nominal consideration of $8,000, on the 4th of September, 1849, an estate on the Island of Oahu, called the Puuloa Salt Works; the design being that Vincent should hold the estate in trust. And it is alleged in the bill that the stock and furniture were purchased by the complainant or by his funds ; and further, that the estate was mortgaged by said Vincent to B. E. Angel for the sum of $5,000, and that the money arising therefrom was received by the complainant and said Vincent, and that the latter gave his note for the amount he had received to the respondent, who, on the 20th of July, sued said note and recovered judgment thereon ; and further, that said mortgage was paid by raising money on the estate. He further avers that he invited his brother, the respondent, to come to this
The complainant prays that an account may be taken of all the dealings and transactions of the respondent touching the Puuloa Salt Works, from the 19th of June, 1855, till the day of filing this bill, that the amount due the complainant may be ascertained, and that the respondent may be decreed to pay the same; and, also, that the said respondent may be ordered to convey the estate to the complainant.
The respondent admits in his answer that the conveyance of the property was made to Vincent, and believes that the consideration of eight thousand dollars is correct; but does not know whether the estate was held in trust or not, or whether
He denies that he came to this country in destitute circumstances, for he was skilled in the art of ship-building, as well as having general business qualifications, and with sufficient means at his command to establish himself independently of his patronage; and he further says that he does not know whether said deed from Vincent was executed at the request of complainant, but denies that thé sum of fifteen thousand dollars, as stated, as a consideration in said deed, was merely nominal, but states that it was the price at which he purchased the estate of said Vincent, who sold him the same on time, secured by his negotiable notes and mortgage of the estate; and he denies further that the intent and.object of the conveyance was that he should hold the estate for the use and benefit of complainant, or for the purpose of enabling himself to manage it with more facility, for the use and benefit of complainant.
Defendant further says he has no “'personal knowledge whether the complainant, as in bill alleged, continued until the 20th of June, 1855, to enjoy a large or any portion of the proceeds of the said estate, or whether the same, if true, was, or was not, according to an agreement in bill alleged, as between the complainant and the said C. W. Vincent; or whether the said Vincent in fact held the estate in trust for the use or benefit of the complainant, as in bill alleged ; or whether said writing was made for the purpose of enabling the said Vincent to manage the said estate more effectually for the use or benefit of the complainant; or whether the said Vincent received for his alleged management one-third or any other, or what part of the proceeds, of the said estate, but saith this defendant is credibly informed, and verily believes, and therefore avers, that all the said above last-mentioned statements and allegations are without any foundation in fact, and were never alleged by the complainant, in any of the intercourse between them, since defendant arrived in this Kingdom.” ' He further avers that he supposed the furniture was Vincent’s, because complainant never made any claim to it; and that the stock of cattle referred to were sold by order of complainant, and purchased by respondent. He says further, that the mortgage to Angel was made by
The respondent denies that he holds the estate in trust, and avers, that he purchased it for fifteen thousand dollars ; that he paid no part of the consideration at the time, but that he has since paid large sums of mone}7 to the complainant.. He denies further that he was under obligation to convey to complainant, on request, or to any one else, whenever he might direct, and denies all efforts at settlement. The complainant replies thar he does not know whether, the mortgage and notes for fifteen thousand dollars were executed, or whether they were delivered to him, as at the time he was in great mental trouble; but avers if such papers were signed they were merely for form, and no such mortgage is now recorded ; and that for the space of one year from the 3d day of October, 1855, the defendant had possession of all repliant’s papers ; and if such papers were executed, their present existence is unknown to this repliant, and if any exist, are in the possession of defendant. The re-pliant further says that _ the cattle referred to in the answer were offered for sale, but there being no purchasers, the cattle were bought in by the respondent, and no money was ever paid by defendant or received by complainant.
The counsel for the complainant avers that Vincent held the Estate in trust for him, with the understanding that he would convey it to whomsoever the complainant might direct, and that in pursuance thereof, he made a conveyance to the respondent, to be holden for complainant as Vincent had held it, and that the respondent has been in the same relation as trustee.
The counsel for the respondent contends that, as the deed is absolute in its terms, a trust cannot be established by parole testimony.
It is a general rule of law that parole evidence is not admissible to, create or modify interests in real estate, unless in cases of fraud and mistake. But trusts resulting by operation of law are expressly excepted from the operation of the statute of frauds. The doctrine that a trust may be established when the consideration of a deed moves, as in this case, from the complainant and not from the grantee, is fully sustained by Chan
It is often a very difficult question to determine what facts will create a trust by operation of law. (Pembroke vs. Allenston, 1 Foster, 107 ; 13 John., 463 ; Jackson vs. Mills ; Boyd vs. McLean, 1 Johns Ch., 272.)
The statute of frauds declares that “ all declarations or creations of trusts and confidences of any lands, etc., shall be manifested and proved by some writing signed by the party, who is, or shall be by law, enabled to declare such trust, or else they shall be utterly void.” The statute, however, excepts the case when any conveyance shall be made of any lands, etc., by which a trust or confidence shall arise or result by implication or construction of law. 0
In the case of Botsford vs. Burr, 2 John Ch. R., 408, Chancellor Kent says that such a resulting trust may be established by parole proof, and the difficulty in all this class of cases is whether the facts make out a resulting trust. In all cases where the money is paid by one person, and the: deed taken in the name of another, a resulting trust arises ; but if the party did not pay the money, he cannot be permitted to prove that the purchase was made for his benefit, or on his account. The trust may be established by parole, although by the deed an acknowledgment is made that the money was paid by the nominal grantee. (Foot vs. Calvin, 3 Johns, 216 ; Suthrie vs. Gardner, 414 —19 Wendall; Lowusburg vs. Purdey, 16 Barber, 376 ; Peabody vs. Turbill, 2 Cushing, 236 ; Lynch vs. Cox, 11 Johns, 265 ; Buck vs. Pike, 2 Fairfield, 9, 23 ; Baker vs. Vining, 30 Maine, 121, 125 ; Smith vs. Burnham, 3 Sumner, 435, 438.
The cestui que trust is regarded in a Court of Equity as the real owner, for the beneficial interest vests in him. So that if the respondent had purchased the estate with the knowledge of the trust, the conveyance would be subject to it. He has a right in equity to dispose of the estate, and any disposition made by him is binding on the trustee. (Root vs. Blake, 14 Pick., 271.)
As eai'ly -as the time of Lord Hardwicke, in the case of Lloyd vs. Spillot, 2 Atk. R., 150, the principle of a resulting trust was recognized as arising by operation of law, where an estate was-purchased by one person and the consideration was paid by another. He who pays the consideration is regarded in equity as the owner. He went farther in the case of Willis, 2 Atk., 72. and was of opinion that parole evidence might be admitted to show the trust from the poor circumstances of the pretended owner of the real estate or inheritance, which made it impossible for him to be purchaser. (Linch vs. Linch, 10 Vesey, 518.) And this doctrine is equally applicable to personal as well as real estate. In the case of Dyer vs. Dyer, 2. Cox, 92, Lord Chief Justice Baron Eyre says that “ the clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the names of the purchaser and others jointly, or in the names of others without that of the purchaser ; whether in one name or several; whether jointly or succession," results -to the man rvho advances the purchase money, and it goes on a strict analogy to the rule of common law, that where a feoffment is made without consideration, the use results to the feoffor.”
Mr. Justice Story says that this principle was recognized in a very short time after the passing of the statute of frauds of 29 Charles 2d, in an anonymous case in 2 Yentris, 361, and that the doctrine of that case has never been departed from, but has been recognized in a great variety of decisions. The ques
Chancellor Kent says, that a trust is merely what a use was before the statute of uses. It is an interest resting in conscience and equity, and the same rules apply to trusts .in chancery which formerly applied to uses, and in exercising its jurisdiction on executory trusts, the Court of Chancery is not bound by the technical rules of law, but takes a wider range in favor of the interest of the party. (Fisher vs. Fields, 14 John. R., 505.
A more difficult question than one of law arises on the sufficiency of the evidence to establish the trust, as alleged by the complainant. A careful analysis of the testimony is necessary to form an opinion upon this very important point. Mr. Vincent testifies “ that in 1848 he loaned the complainant $5,000, who gave him security on the lease which he then held of the Puuloa Salt Works and the salt there manufactured. The complainant went to California in 1848, and on' his return in 1849, he purchased the title of the estate, and he conveyed it to him to secure the original loan, and a further advance, making the amount $8,000. And it was agreed at the time that he was to have one-third of the profits for his superintendence, the complainant one-third, and complainant's wife one-third; and it was distinctly understood, that on the payment of the $8,000 and interest, he was to re-convey the estate.” He says further : “ We made a settlement in 1853, and I received full payment of complainant's indebtedness, and then desired to re-convey the estate. I received one-third, of the profits for managing the estate. I considered the estate sacred, and I made provision to protect the complainant in my will. I thought the estate worth four times the amount he owed me. After my settlement
The witness then makes a statement in relation to the management of the estate by him, and its comparative condition when conveyed to the respondent, with the present time, as conducted by the respondent. Mr,. Vincent is asked whether he has not declared to respondent, that Mrs. Montgomery, wife of complainant, has said to him .(Vincent) that if Isaac got the property he should get half of it. He denies having any conversation with him (Mr. Bates) in regard to any conversation with Mrs. Montgomery about the property, and he denies having had any with her about it. He is interrogated in relation to a conversation with R. G. Davis, Esq., who was retained as counsel for the respondent, and he says that he does not remember that he stated to him, or any- other man, that the wife of
Mr. Vincent further says: Mr. Bates called on him and handed him the bill in this case, and we had some conversation in relation to the note, and I told Mr. Bates I thought the note was given for a house and lot in town and a schooner, but, he says, I was in doubt at the time. A short time afterwards Mr. Bates called again and read the answer. I then told him that the
Mr. Davis testifies that Vincent stated that he had nothing to gain by this suit, if it went either way, and thought that the only benefit he could derive would be employment in the line of his business, on the property, and it may be that I conveyed the idea to the minds of my associates. I cannot say that Vincent stated he was of more consequence than all the lawyers. I do not recollect of having made such a statement to -others. I have never insinuated that Mr. Vincent had stated .to me that he wished money placed at his disposal, and I never gave assent to a question involving this to Mr. Bates or Mr. J. Montgomery. I had a general conversation with these gentlemen, and told them that I thought Mr. Vincent’s testimony would be adverse to our client. He then stated to Mr. Bates, there is one important matter -in this case which I will disclose to you confidentially, that $1,000 has been named as the price of Vincent’s testimony, and Mr. Bates said, Yes, that is what I wanted to know about.' I said, then, Mr. Bates, I wish you to understand that I named it to my colleague, Mr. J. Montgomery, but
Mr. Vincent states, in his cross-examination, that the respondent had stated to him that he was not sure whether to prosecute for the whole estate, or for services rendered for seven years. The respondent was very severe in his remarks on his brother, but he advised him to a milder course. He never stated to him that he would succeed in his suit, or advised him not to compromise it. And Mr. Davis testified that Mr. Vincent never said to him that if respondent got the salt works he would be glad of employment there ; and that he never stated to any one that Vincent had so stated. Mr. Vincent never signified by sign, symbol o.r token, that if a'large fee was placed in my hands for him, that it would be for the respondent’s benefit. I never stated this to any one. I have never been charged with any such thing. I have been asked by my associate counsel whether
Mr. Bates, counsel for respondent, testified that his client informed him that Mr.. John Montgomery, associate counsel, had stated to him that Mr. Davis had said that Vincent had made a proposition that for §1,000 his testimony should be favorable to respondent, and at a meeting of counsel and client, the question was put to him whether he had made such a communication, and whether Mr. John -Montgomery had proposed to Mr. Daniel Montgomery to deposit with him, Mr. Davis, $1,000, which was-to be retained by him to abide the issue of this suit, for the benefit of Mr. Vincent, to which Mr. Davis replied, “ That is false.” Solicitor Montgomery was excited at this reply because he had understood1 Mr. Davis differently, and said, “Robert! I can’t stand that.” Mr-.,Bates further testified that Mr. Solicitor Montgomery said to Daniel, in his presence, that he had told him that he, the. respondent, had given §300, and that the re
Solicitor Montgomery testifies that Mr. Davis did not use any expressions in conversation with him that Vincent could be induced to give evidence either on one side or the other, by any valuable consideration ; but the impression left on his mind rvas that, as Vincent had talked about getting half of Puuloa, and as the respondent told him so, as well as Mr. Davis, and his remarks in relation to hard times, I inferred that $1,000 was in some shape or way a sum which Mr. Davis thought might operate on Vincent’s testimony. ■ He felt there was a risk of Vincent being induced to deviate from the truth, which, from Mr. Bates’ statement, were on respondent’s side of the case. Solicitor Montgomery then made a communication to his client, of the impressions he had derived from Mr. Davis. He stated to his client that it appeared to him that Vincent expected some inducement to keep him on the right track in his testimony, and he thought §1,000 was the inducement, to which the respondent replied : “ I have paid that man $800, and I can’t afford it.”
Solicitor Montgomery says he expressed surprise at this course. These remarks of Mr. Davis were undoubtedly the cause of this idea in the mind of the solicitor that Vincent was open to a bribe. The solicitor was interrogated whether he had not stated that Vincent wanted §1,000 for his testimony, and whether' the respondent was not a fool not to give it. He replied that his client had given §300, as he said, and which lie had no reason to doubt, and that increasing the sum was not increasing the offense, and that he had said jocularly “ that he might as well go the whole hog.” He denies explicitly that he ever advised respondent Montgomery to make the overture.
The first question which arises is, whether any of the facts disclosed create doubts as to the truth of the testimony of Mr. Vincent; for if a man has accepted, or offered to accept a bribe, his evidence can have no weight with the Court, unless fully sustained by the most reliable witnesses, or by circumstances of the strongest character.
That Solicitor Montgomery made this impression on the mind of his associate counsel, Mr. Bates, is undeniable. But had he any ground for entertaining such an opinion of Mr. Vincent? Mr. Davis attempted to have a conversation with Mr. Vincent in relation to his knowledge of the facts involved in this case, and of the character of the testimony which he would give, but he studiously avoided it. The introduction to the conversation is not material; although, it may be remarked, that -it was more Masonic in its tone and manner than professional. It appears that they were early friends, and that they entered upon a very free conversation on their private affairs, of their business, of their personal condition: Mr. Vincent said his business was poor and times were hard. In the course of the conversation he said that the respondent had stated to him if he wanted a thousand dollars to use he would let him have it.
The account given by Mr. Yincent and Mr. Davis, under oath, of the interview, is -perhaps as near in conformity as is usually made. They agree in all the material points of the conversation, with the exception of an appeal made by Mrs. Montgomery, wife, of complainant, to save the estate for them ; and my own view is, from a very careful examination of this testimony, that the testimony of Davis has been consistent with the declarations made by him to his associate counsel. Mr. Montgomery drew inferences whieh were not legitimate; and there is no propriety that Mr. Davis should be answerable for them. There is certainly no ground for the opinion that Davis had changed his version of the conversation to shield Yincent from the charge of having made overtures for his testimony. ^
In connection with this discussion iipon Mr. Davis’ testimony, it is well to recur to Yincent’s, for the purpose of testing its accuracy and truth. He had the title of the estate for about 6 (six) years, and had charge of the business for about four. His books give a clear history of the transactions of the Puuloa Estate. His memory is as sound and retentive as could be expected of events which transpired so long ago. He has answered freely and fully every question which has been put to him. His settlement with his cestui que trust seems to have been entirely
When Solicitor Montgomery made known to his client the impressions he had derived from Mr. Davis, that Vincent expected some inducement to “ keep him on the right track ” in his testimony, and he thought §1,000 was that inducement, his client stated to him that he had given Vincent §800, and could not afford to give more ; instead of discussing the comparative criminality of the offense of bribery, whether the sum was more' or less, it was his imperative duty to have denounced such conduct. It was not an occasion to be jocular, or for a counsellor of the Court to indulge in trifling remarks upon this the most serious of all subjects connected with proceedings in a Court of Justice. It is, indeed, trifling with serious things. It is the duty of counsel to aid in the investigation of a suit, and to keep the sources of information free from corruption, and the Court cannot for a moment entertain a discussion of the morality of giving a consideration to a witness, to induce' him to tell the truth. It is corruption itself; and the man who would receive money to tell the truth, would receive money to tell a falsehood, and there could be no reliance upon his testimony in either case. Mr. Montgomery has always sustained an honorable position at the bar, and the Court do not believe that he would seri
The respondent was invited to visit this country, and he arrived here in 1855, in the 22d year of his age ; and it appears by his answer that he had been educated in the art of shipbuilding, as well as having general business qualifications, and with sufficient means at his command to establish himself independently of complainant’s patronage. It is in evidence that on his arrival, the complainant furnished him with the necessary clothing proper for the climate ; and it is alleged in the bill, and not denied, that the complainant paid the respondent’s
Respondent states in his answer that he does not know what consideration Vincent paid for said property, but believes it to have been $8,000, as stated in the deed, and that said sum was bona fide paid by said Vincent to, and received by, the complainant, in consideration of the sale of the Puuloa estate by the said Vincent to complainant.
He further says that he does not know whether the deed from Vincent to him was executed at the request of complainant.
It is very clear that on his arrival, the respondent regarded Puuloa as complainant’s estate ; and Vincent testifies that “ for some year and a half he had often expressed the wish to reconvey the estate to complainant, but the title remained in him till the arrival of respondent; ” and Isaac then said to him, after introducing his brother, “ I will nowtake the deed of the land, and in preparing the deed, insert my brother’s name in place of my own. He had no negotiation with the respondent about the estate.” It appears, under his own hand, that he regarded the Puuloa estate as his brother’s, on his arrival; and is it in the nature of things, that the respondent, coming here at the invitation of his brother, and at his expense, and immediately entering in aid of his brother on the management of the estate, that he did not know something of the nature of his brother’s interest? If he regarded Vincent as the owner in fact, he must have been struck with the singularity of the interview as detailed by Vincent. It was a very summary mode of negotiation, certainly. On the hypothesis that Vincent rvas the owner, and he was the purchaser, and especially when he found that he could make the purchase on six, twelve and eighteen months, without an advance payment.- It is not an ordinary event that a stranger, on the first introduction, can purchase a large and productive estate on time, without a money payment. The weight of evidence is that the respondent arrived here without means, and 'did he expect to produce from the estate the amount of purchase money to meet the payments as they became due; if so, it would seem that Vincent sold the estate for what it would produce in six, twelve and eighteen months, and if it was not an extraordinary estate, in its productions, paying largely be
In view of the history of the whole transaction, and more especially when we take into consideration the relationship of the parties, can there be a doubt that the respondent had been informed, and knew, that the estate belonged to the complainant, and that Vincent was ready to convey it on request ?
The respondent further answers that he believes the furniture was the property of Vincent, because the complainant never made any claim for it. Vincent testifies that he never owned the furniture, and there is not a doubt, from the evidence, that it was purchased by the complainant. If the respondent regarded the furniture as Vincent’s, it is somewhat singular that he could have used it for more than six years, for it is in evidence that it was valuable, without being informed of the incorrectness of the opinion. It appears that for years the parties were not on good terms, and, therefore, for reasons of friendship, he could not have believed that Vincent left the furniture for his use for this long period. It must have appeared to the respondent as exhibiting the same spirit of generous accommodation as the original transaction of the sale of the estate to him.
In examining the deed, as detailed in the bill, it appears that the habendum is in these words : “ To have and to hold the above described property unto the said Daniel Montgomery, his heirs and assigns, forever, in like manner as I myself now hold the samp, and subject to all mortgages, liens and encumbrances now existing on said estate, whether the same may have been created by myself or by any other person.” If the respondent regarded Vincent as the owner, and his business in obtaining this conveyance was with him, and him alone, why did he not ask him to give him a short list of the mortgages, liens and other encumbrances on the estate. There was no conversation about the title or the encumbrances he had imposed upon it, and yet he gives his notes and mortgages for $15,000 for a quit-claim' deed, with the addition of this unusual
It appears he enters upon the management of the estate, and finds thereon a quantity of goods for trade, which he devotes to the use of the business, for some of which the complainant paid for- after the respondent arrived; and it is also proved that he purchased goojis and lumber afterwards, which he paid for, and which were used for the benefit of the business on the estate.' He conducted the business so far as using the property on the estate, the same as if all the property, personal and real, was his own, or as if he was managing' the business for the owner, while it does not appear from his answer that he had any title to any of the personal property, excepting what he acquired by virtue of an auction sale of some cattle, amounting to $145. It appears from the answer that the complainant directed the sale, and that ho purchased them for that sum. If he was acting as trustee, the purchase "would, of course, be for the benefit of the principal.
It appears, further, that some months ago 'the respondent called upon Vincent, for the conveyance of the schooner which Vincent purchased for the benefit of the estate, and he says he conveyed it, supposing it was the same thing whether he conveyed it to the respondent or complainant; that he was paid for the advances he had made on the schooner, when he had the management of the estate, by complainant. This is another piece of property belonging to the complainant, which for years had been devoted to the use of the estate, in the same manner as if it had been conducted for the benefit of complainant, and for which it is not pretended by the respondent that he had ever purchased ; so that, in a word, the case presents itself in this way : Vincent holds in trust, for complainant, the estate at Puuloa, and which complainant had personally conducted for some year and a half, and he was desirous of re-conveying the same, that he might be relieved from the responsibility of the trust. The complainant communicates with his brother, the respondent, in England, desiring him to come to this country, and pays his passage here, and his expenses after his arrival; takes him into the confidential relationship which his kindred blood naturally inspired, and desirous of keeping
The whole conduct of the respondent in reducing all the property to possession, necessary to carry on the estate, is perfectly in accordance with the spirit of the trust and the relationship of the parties. It can be explained upon no other hypothesis, than that the trust to Vincent was continued in respondent. In the case of the Methodist Episcopal Church vs. Jacques, 1 Johns. Ch. Rep., 450, the Court declared that lands purchased held by the husband, with moneys of the wife, are deemed to be in trust for her, though purchased in his own name, and a third person, to whom the husband had conveyed an estate so purchased, with notice of the manner of acquiring it, was held to be chargeable with the trust. Thiá was a case where there had been a marriage settlement. So in the case of Murray et at, Ballou et al., 1 Id., 566, the Court say : That if a purchaser has notice of a trust at the time of purchase, he himself becomes trustee, notwithstanding the consideration he has paid. If the cestui que trust resumes the estate, and, as in this case, directs to whom the conveyance shall be made, and if made without consideration, as it is contended it was made in this case, a resulting trust arises. Furthermore, if there was a sale,.and notes and mortgage taken in full consideration, how is it that the respondent could testify as he did in the Police Court, that he did not think that his brother had any interest in an inch of land, or any interest .in any outstanding notes, when by his own showing, although his books are very unsatisfactory, his payments to his brother were—
From June 20,. 1855, to June 14,1856, $ 836 00
Less property sold, - - - ’ - - - - 547 38
s 288 62
From June 14,1856, to July 18,1857, - 1,367 00
From July 18,1857, to July 17, 1858, 226 00
From July 17,1858, to August 1, 1859, 00
From August 1,1859, to close of the books, 826 80
From 31st January, 1861, to Sept: 10, 1861, 1,014 55
$4,256 17
It is contended further on the part of the respondent that the allegation in the bill that the sum of $8,000, acknowledged to have been received in the deed of the estates from complainant to Yincent is expressly denied by Vincent, and that the evidence .does not sustain the charge. It appears that in 1848, when the complainant held the estate under lease, that he borrowed §5,000 on an assignment of the lease and the salt on the estate, and that in 1849 complainant made the purchase and increased the debt of Mr. Yincent to $8,000, which he took, as the understanding was to secure that amount. It is very true that it was not paid in payment of the purchase of the estate ; but it was received, and- for which an incumbrance on the estate was created. It is a partial mode of stating the case ; at the same time I do not regard it a false statement in intent. The counsel further contends that the averment in the bill that two-thirds of the profits of the business of the estate' were to enure to complainant, and one-third to Yincent, conflict with the evidence, which is, that one-third was to go to his wife. The legal right was in complainant, and not in his wife, and Yincent might have understood from complainant that he desired a third of the profits paid to her, still it does not appear that she had any legal claim ; for he swears that the estate was held in trust for
Vincent testifies that the money, amounting to $5,000, raised on mortgage from Angel was equally divided between himself and complainant; and that he gave at request of complainant a note to respondent for the amount which he received and the interest. This statement the respondent denies, and says the note was given for some other, consideration, but produces no proof of it. There, were other matters of business between ■complainant -and Vincent, but evidence of various books prove the mode in which other indebtedness was paid. The weight of evidence is decidedly in favor of Vincent’s statement; certain it is that the consideration arose from indebtedness to complainant and not to respondent; the respondent having recovered judgment .on the same in 1856, which remains unsatisfied to this day.
It is contended further that it is not probable that if a proposition of settlement had come from complainant, that respondent’s counsel would have advised him not to accede to it.
The respondent avers in his answer a denial of the allegation in the bill that complainant has made any efforts to obtain a settlement with the respondent in relation to the Puuloa estate or the business connected therewith, or alleged or pretended any right to a settlement in relation thereto. Mr. John Montgomery testifies in relation to a compromise between the parties, and that the respondent on the morning after informed him that he had agreed to his brother’s demand to pay him $10,500 to resign his claims to Puuloa, to be in installments in seven years, with interest. These terms of settlement were defeated in consequence of the complainant desiring to have a certain piece of land of the estate, but which the respondent objected to, on account of its being occupied by natives who were troublesome to him.
It further appears that the complainant, by his counsel, addressed a letter to respondent, proposing an arbitration, to w7hich his counsel replied, asking to be apprised of the nature of the claim ; to which the counsel of complainant replied, setting forth the basis of his claim, and expressing a willingness
It is contended further, that the agreement, as alleged in the bill, was unreasonable, inasmuch as that if the estate turned out unprofitable, the respondent'had made a slave of himself, as by its terms as set forth, he had bound himself to pay $100 per month forever, receiving one-third of the profits. I do not regard that the trust is fixed in time. The condition itself is not uncommon. Men are constantly making contracts to pay a certain sum per annum for the use of property, taking the risk of the income. But there certainly can be no pretense for continuing the trust against the wishes of the trustee. There was no time specified of its continuance, and it -was perfectly competent for him to surrender the trust at any time he pleased: but as long as it did continue, the bill alleges certain payments should be made to the complainant monthly, from his portion of the profits, and that the trustee should have for the management of the estate one-third of the profits, as Mr. Vincent had. I am not satisfied that this was the understanding, from the history of the management, of the estate by respondent, and there is no sufficient proof of this allegation in the bill, unsustained by the circumstances. When this relationship in business began, it undoubtedly was with the true feelings of brothers. While the complainant surrendered to respondent the use and benefit of everything on the estate, such as the goods, lumber, furniture, stock, etc., etc., without exacting any account, and while the respondent used all this property for the common object, without giving any credit or proposing to render any account, at the same time the respondent was making what he regarded as improvements, and which were doubtless expensive, and so far as appears, without objection from the
It should be a warning to all in business relations. The terms and conditions should be clearly understood and defined.
The answer of the respondent is not only materially shaken by the evidence and the circumstances as developed in the course of the investigation, but his oath loses its force and confidence by his application to Vincent to testify in conformity to certain instructions, as detailed in Vincent’s testimony, for the consideration of $1,000. The testimony of Messrs. Montgomery and Davis to his own declarations that he had advanced money to Vincent, which Mr. Vincent positively denies, tends to increase the want of confidence in his statements.
I have examined this somewhat complicated case with great care, and upon the best examination I am able to give the law and evidence, my judgment is that the complainant is entitled to a decree declaring him in equity entitled to a conveyance of the Puuloa estate from the respondent, and that an account should be taken of his administration of the estate on the basis of a salary, for services per annum, charging him for the receipts of money for personal use ; for it is certainly very clear that the complainant has been conversant with the general management of the estate, of the buildings erected, and of the improvements made, and there is no evidence that he has made any objection ; therefore, upon principles of law and equity he is bound by all that has been done by his trustee, with the sole condition that the trust has in all these particulars been faithfully executed.
At present there must be an interlocutory decree, that reference be made to the Clerk of the Court, ex officio Master in Chancery, to state an account of all the moneys received from the trust estate by the respondent, and also all moneys expended thereon by him from June 19th, 1855, to the day of filing of this bill, and particularly an account of all moneys received by the respondent for his personal use, giving him credit for his