The Pacific commercial advertiser. [volume], May 11, 1899, Page 5, Image 5

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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THE PACIFIC COMMERCIAL ADVERTISER; HOXOLtXU, MAY 11. 1S09.
e
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
-MA 11 Y C. ALDIUCII, IIKLKX Ji. KIXC. JiAUUIET X.
JSKOT, HEXKV S. SWIXTOX, CIIAKLES E. S.
SWIXTOX, IIKLKX M. SEAL, DOUGLAS K.
HUOWX, hikI XOU.UAX liKOWX by AV1LLIAAL U.
KIXO, their ncxr iVifii.1, . PKISCILLA E. ilASSIX-
iKR, 1IEXIM E'lTA E. ROSS ami AXXIE 1L TUK
TOX. e . .
IMAJtY C. ALDKICJT, IIKLKX II. KLXG, and XOKMAX
J5KOWX, a minor, l,y WILLIAM ( KIX(I. his next
iVkiKl, r. PKISCILLA E. IIASSIXGKK, IIEXUTEITA
E. KOSS, AXXIE II. TL-RTOX, IIEXRV S. SWIX
TOX, CIIARLKS E. S. SWIXTOX, IIKLKX M. SEAL
and DOUGLAS K. RROWX.
.Motion luii Rkakgumknt.
SUJJMJTTJ;J A Villi, J S..
I)i;cii)Ei JNLvy 1, lSDO.
JUDD, C.J., WllITIXO, ,L, A.L JL 1). SlLLI.MAX, KsQ., OF TIIK TJaK,
in j'j.Ai j-: of Ekkak, .T., absent.
"Where a bill of revivor states facts showing that a party plaintiff
who was a minor at the institution of the original suit has attained
his majority and the answer shows that such minor claims rights
adverse to the other plaintiffs, he may have his name stricken
from the record as a party plaintiff in the original suit.
Although as a general rule a bill of revivor puts in issue only the ques
tion of who the heirs or representatives of the deceased party are,
and no new matter on the merits of the original suit should be set
forth in the answer nor relief, which goes to the merits of the
original uit prayed for, yet where euch answer shows that the
party filing it has interests adverse to those of the other plaintiffs
such matter may then be material in determining whether or not
such defendant in the bill of .revivor is entitled to have his name
stricken from the records as a party plaintiff in the original suit.
Where it appears from the whole record that a party having such ad
verse interests to the other parties plaintiff has had his name strick
en from the record as a party plaintiff by this court on an appeal
from a decree on the merits of such original suit, and has -thereafter,
when again brought before the court on other proceedings,
sought to contest the claim of the other parties plaintiff, he is en
titled to have his day in court on such adverse claim.
OPINION OF COURT BY R. D. SILULMAX.
v . : -
si'':' . v .
i..-X" J'lt-S1m'.. .. . .. ...
This is an application for reargument of the decision reported
on page OS 2, ante.
The grounds of the motion are that the decision embraces
Xoint3 that were not argued by eonn.sel, determines a matter not
in issue between the parties and not before the circuit court
below nor before this court on appeal.
There were two appeals of Douglas K. Jirown before this
court at the time of the hearing of October 17th, 1SD8, one
entitled as the first above, being an appeal from a pro forma
decree, dismissing the bill of the plaintiffs, the other entitled
as the second above, being an appeal from a decision and decree ,
of the first judge of the circuit court, striking certain matter
from the answer of said Douglas K. Brown to plaintiff's amended
bill of revivor and ordering that the original suit, commenced
on Xovcmber 10th, 1801, by Mary O. Aldrich, Helen J. King,
Harriet X. Brown, Henry S. Swinton, Charles E. S. Swinton,
Helen AL Seal4 Douglas K. Brown and Xorman Brown by
iWilliam C. Kmg, their next friend, r. James Smith be revived
against Priscilla E. Hassinger, Henrietta E. Boss and Annie II.
Turton as substituted defendants and do stand in the same plight
and condition as at the time of the death of said AV. James
Smith.
The second appeal only was argued and submitted at the hear
ing of October 17th and the matters decided were raised only
by that appeal. There is therefore an error in the title to the
decision reported, on page GS2. The title of that decision should
bo as the second title above.
At the time the original suit was commenced Douglas K.
Brown, then a minor, was made a party plaintiff by "William C.
King, his next friend. On -May loth, 1S07, a bill of revivor
was tiled setting forth that the defendant in the original suit,
W. James Smith, died in Honolulu, March 2'2, 1S9G, that Pris
cilla E. Hassinger, Henrietta E. Boss and Annie H. Turton
were the heirs at law of said W. James Smith, and asking that
the original suit be revived against them. This bill of revivor
was signed bv William C. Kim? alone and no decree was made
reviving the suit but the suit was proceeded with on the merits
as though properly revived, and a decree on the merits was made
and entered in favor of the plaintiffs. From this decree the
defendants appealed to this court.
Douglas K. Brown, who had been made a party plaintiff by
next friend, filed a motion stating that he was no longer a minor
and asking leave to enter his appearance in his own behalf and
at the same time filed a plea asking that his name be stricken
from the record as plaintiff. An answer to this plea was filed
setting nr laches of said Brown and other matters. After argu
ment "it was decided that Douglas K. Brown's name should be
stricken from the record as a party plaintiff that the decree
appealed from should be vacated,-and the bill remanded to a
judge of the circuit court for such amendments as plaintiffs
might bo advised to make and such further proceedings as might
bo necessary. Thereupon the plaintiffs in the second above en
titled cause filed an amended bill of revivor setting forth the
same facts as the original bill of revivor and also in addition
other facts immaterial, upon the inquiry as to who were the
heirs at law of "W. James Smith but showing changes in the
status of several of the plaintiffs since the original bill was filed.
Anions other things it was alleged that Douglas K. Brown had
become of age since the filing of the original bill and declined
to join in said amended bill of revivor. The bill prayed that the
suit be revived and for general relief. Douglas K. Brown filed
an answer to the amended bill of revivor admitting certain alle
gations thereof and setting forth facts that clearly showed his
adverse interests to the other parties plaintiff to the original suit,.,
and asking for relief adverse to the interests of slTch other-plaintiffs
and also adding a prayer for such general relief as the case
might require.
Ve are of the opinion that it is apparent from the record be
fore us that Douglas K. Brown was wrongly made a party plain
tiff in the original suit as revived, that the conclusion arrived at
on the former hearing it within the issues raised by the plead
ings then before ns, and as the only question argued upon the
former hearing was whether said Douglas K. Brown was prop
erly math- -uch party plaintiff, the motion for a reargument U
denied.
Kinney, Ihilhm .(- McClanahttii for the motion.
. T. Dcllnlt, contra.
IN THE SUPKEME COURT OF THE HAWAIIAN
ISLANDS.
M Alton Teiim,
S. A1EM1 r. JA.MES ASHFORD and A. V. ALARCIAL.
Appkal Firo.M CiKcriT Jruoi;, Einsr CincLir.
Sri;Mmi:i Aivkil 4, Deciiu:i May 4, lJi)i.
Jl'DD, C.J., I'll EA 11 AX li )VlIlTLi;, J J.
A .exant of a remedy at law by a statute which is merely permissivo
does not exclude or abrogate a similar remedy previously existing
in equity.
A subsequent vendee is not a proper party to a suit in equity by a
prior vendee against the common vendor to recover the first deed.
OPINION OF THE COURT BY FREAK, J.
The allegations in the bill are substantially as follows: In
October, 1807, the defendant James Ashford executed and de
livered to the plaintiff a deed of conveyance of certain parcels
of land in AYailuku, Maui, known as the "J. B. Xanana" lands
theretofore owned bv the said Ashford. The consideration was
.$2200. Eive hundred dollars were paid in cash and the remain
ing $1700 secured by plaintiff's mortgage. At defendant Ash
ford's request, the deed was placed in his hands to send to Canada
for the purpose of procuring his wife's release of dower. The
deed was never returned to the plaintiff and is not recorded. On
December S, 1SD7, the defendant Ashford wrote to plaintiff stat
ing that it was out of his power to complete the sale of the
Kanana property to him, for reasons asserted, and tendered the
$500 received and plaintiff's note for the balance. These were
refused. On that date Ashford executed and delivered to the
other defendant, A. V. Marcial, a deed of conveyance of this
land, for the consideration of $2500. This deed was duly re
corded. The grantee had actual notice of the prior conveyance.
The prayers of the bill are (1) that defendant Ashford be
ordered to surrender to the court the deed executed by him to
plaintiff in order that it may be recorded in the registry of public
conveyances. (2) That defendant A. V. Marcial be ordered to
surrender to the court for cancelation the deed made by Ashford
to him. The defendant Ashford made no answer and the bill
was decreed to be taken as confessed, &c. The defendant Marcial
demurred to the bill, which demurrer was sustained and the bill
dismissed on the ground that plaintiff has a complete and ad
equate remedy at law against defendant Marcial by an action of
ejectment, if he (the plaintiff) is not in possession, or by the
statutory action to quiet title if he is in possession.
it does not appear whether the plaintiff is in pose-sion or not.
If he is not, it is clear that he cannot come into equity, for he
has an adequate remedy at law by an ordinary action of eject
ment, as held by the circuit judge. But if he is in possession, uven
though he may have an adequate remedy at law by the statutory
action to quiet title, it does not follow that he cannot come into
equity. For, the statutory remedy is merely permissive and
does not exclude or abrogate the remedy, if any, previously ex
isting in equity. 1 Story, Eq. J nr. Sec. 80; 1 Pom. Eq. Jur. Sec.
182; Ifarrimjlon r. Uttvrbttrfc, 57 Mo. 5U; see also Kuhoiicai
r. Jjiinacu, 10 Haw. 507. Therefore, so far as this ground of
demurrer alone is concerned, if equity would have had jurisdic
tion but for the statute, it would still have it, and the demurrer
should have been sustained, as it was, because the bill did not
show that plaintiff was in possession, but it should have been
sustained with leave to the plaintiff to amend, if he could, by
alledging that he was in possession, and not, as was done, with
the dismissal of the bill forthwith.
But might not the demurrer have been sustained and the bill
dismissed forthwith upon some other ground. There were two
other grounds of demurrer. One was misjoinder of parties.
Plaintiff's counsel in argument assumed that this suit was, or was
analogous to, one for specific performance, and that therefore,
leaving out the question of the cancelation of Marcial's dted
entirely and regarding the bill as one solely to compel the de
livery of the other deed by Ashofrd, still Marcial ought to be a
party on the ground that he took his deed with notice. If this
were a bill for specific performance this reasoning might be
sound, because in such case something might be required to be
done by Marcial, as the execution of a deed by him to the plain
tiff, his taking with notice being considered as making him in a
certain sense a trustee for the plaintiff. See 1 Story, Eq. Jur.
Sec. 784; Fry, Spec. Perf. Sec. 135; 1 Dan.; Cr. PI. & Pr. 231
and notes. But this is not a bill for specific performance. It is
a bill for delivery of a deed. Xothing is required to be done by
Marcial so far as this deed is concerned. Marcial is not a neces
sary or a proper party as to this part of the bill. It is not con
tended, and we presume properly so, that Ashford is a proper
party as to the other part of the bill. Therefore we have here
two "distinct matters, one against Ashford and one against Mar
cial, each of which might be the subject of a separate suit, neither
defendant being a proper party to a suit for the relief sought
against the other. Perhaps multifariousness would have been
the better ground upon which to have taken advantage of this
error. But misjoinder of parties may cover it, at least it was
assumed in argument that it did. On this ground the bill should
be dismissed as to defendant Marcial.
The decree appealed from dismissing the bill as to defendant
Marcial is affirmed.
J. 3f. Kancalua and J. L. KauluJcou for plaintiff.
C Brown for defendant Marcial. -
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