Opinion of a majority of the Court by
Judd; C.. J.The Court lias taken time to consider deliberately the questions involved in this case, and a. majority is- now of. the *594opinion that the decision of the Chancellor, rendered on the 23d September, 1882, declining to decree the enforcement of the agreement for the sale of the land, should be affirmed.
J. M. Davidson for plaintiffs. A. S. Hartwell and W. B. Castle for defendants. Honolulu, March 1, 1883.We are, however, of the opinion that, all the parties- being now before the Court, the plaintiffs should not be put to-their action at law to recover their money paid to the late- B. W. Parker, and now order that the same be paid by the respondents to the plaintiff's, without interest, which is offset by the use of the land. See Johnston vs. Glancy, 28 Am. Dec., 50.
It is in evidence that the plaintiff's- had expressed themselves as willing to receive back from defendants the money paid, and to rescind the contract; but the principal defendant referred them to his counsel, who- said- he would consider the matter, and no payment was then tendered. "When, much later, the- defendants offered to pay the money, the plaintiff's answered that they had parted with their interests to the plaintiff' Bose.
"We do not think that this refusal to take the money bars the plaintiffs from a right to the relief now granted, since by the judgment of the Court they cannot - have the contract of sale executed. To pray for the repayment of the money in the bill for specific performance would be inconsistent.
It is urged that the plaintiffs are barred of this recovery by the Statute of Limitations.
"We understand that “Courts of Equity not only act in obedience, and in analogy to the Statute of Limitations in proper cases, but they also interfere in- mauy cases to prevent the bar of the statute where it would be- in-equitable or unjust.” Story’s Eq. Jur., Section 1,521.
The circumstances of this case justify us in decreeing repayment, notwithstanding the- statute.
Decree accordingly ; costs to be paid by respondents,