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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. - ARTISTIC i mm wr-w I V See in i ii ii Best EITHER A "YOST" T. L OR A "DEMORB" For Perfect Work. il MM HI IlO SI, LIMITED. 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