Opinion of a majority of the Court by
Judd, 0. J.After having given mature deliberation to this case a majority of the Court are of the opinion that the plaintiff is' entitled to relief.
Referring to the opinion of Mr. Justice MeCully for a statement of the bill and answer, and of the undisputed facts of this case, we have arrived at the conclusion that notwithstanding plaintiff’ entered into occupation of the lot of land owned by the Waihee Plantation under a license to build a house thereon with liberty'to remove it when he desired, it is not necessary to refer his continuing occupancy of the land to this license if a new and different agreement is clearly proved by the testimony.
We must concede that the alleged modification of the plaintiffs’ tenure during the management of Tallant is not proven with the certainty required in cases like this. And during the ownership of the plantation by Messrs. Harris and Widemann, the deliberate postponement by Mr. Harris of the *638•making of a Seed must be deemed as equivalent to his refusal to do so, aud we therefore' think that no binding contract of exchange was made by them, for the consent of Mr. Wide-mann, being only a part owner, would not carry Mr. Harris’ •interest. Mr. Widemann says, that when he was sole owner he understood the arrangement made by previous owners and plaintiff, and approved of it and promised the plaintiff ¡to make him out a deed, but simply forgot to do so and sold '•the plantation, making no reservation of this lot.
It also appears by the proofs that Mr. Widemann knew of ¡the improvements made by Maulé while he, Mr. Widemann, and Mr. Harris owned the plantation, and that Mr. Widemann (fully consented to their being made.
Here, we think, was a distinct and positive agreement on ¡the part of the then proprietor of the plantation to make a conveyance, the execution of which can be compelled. The evidence ©f Mr. King and Mr. P. N. Makee that Mr. Wide-mann advised Captain Makee to put plaintiff off cannot affect the plaintiff’s right to a conveyance. The only effect is to discredit Mr. Widemann’s evidence that he had agreed to -give the plaintiff a deed, and we think it is not conclusive, as it is admitted that Mr. Widemann was ..then endeavoring to persuade Captain Makee to execute -the agreement with plaintiff'. That Captain Makee, Mr. Widemann’s grantee, had notice of the plaintiff’s occupancy of the land must be admitted.
“ The doctrine seems quite firmly settled that open, notorious, and exclusive possession of real estate under an apparent claim of ownership is notice to those who subsequently deal with the title, of whatever interest the one in possession has in its fee — whether such interest be legal or equitable in its matters.” Wade on Notiee, Section 273, and many cases there cited.
We cannot explain the fact that Captain Makee looked at the land plaintiff had agreed to give in exchange and that he *639had a survey made of it,. which he sent to- Mr. Widemann with a request that in addition to the Apañas 2 and 8 of the-l’oyal patent he wished Apana 1 and another piece of one-fifth of an acre to be included in order to connect these pieces, except upon the theory that he was then willing, to execute-the agreement. We may here remark that, it not being, shown that Maulé objected to the addition of these pieces, it may be presumed that he consented to it and that the agreement was modified accordingly. But whether willing or not, Captain Makee and his successors, with a knowledge that an agreement had been made wdth a former owner suffered the-plaintiff to go on and put expensive improvements on the land amounting to the value of $1,800, and the inference we draw is that he knew that the plaintiff' was expecting to receive a deed for this land. If the knowledge that the agreement had been made came to- Mr. Makee subsequent to his purchase-, this does not weaken the force of his acquiescence in the improvements made by plaintiff.
It is urged upon us that the delay in settling the matter indicates that no definite agreement had ever been arrived, at. But, as far as the- plaintiff’s dealings with the owners-previous to Mr. Makee are concerned, the delay was certainly theirs, and not his.
Mr. Widemann says he must have had a dozen conversations with Mr. Maulé on the matter.
We think that the inference to be drawn from. Mr. P. N,, Makee’s statement that he gave orders not to cultivate Maule’s land, or have anything to do with it is, that up to that time the plantation had had possession of the land. This must be so, or there would be no necessity for these- orders. We hardly think the confusion in the identity of these-kalo patches among many others would be sufficient to account for these orders. But if Maulé had abandoned the possession of these patches to the plantation, Makee, desiring to repudiate the agreement, would naturally make such orders.
A. S. Hartwell for plaintiff. F. M. Hatch for defendant. Honolulu, March 16, 1883.The transaction of plaintiff with. Mr. C. Brown in mortgaging bis land is fully explained by Mr. Brown, who says that plaintiff told him he had no title to his house-lot, but agreed to substitute it for his-kalo land whenever he should get his deed.
The validity of plaintiff’s title-to the land to be-given by him in exchange was questioned at the hearing by the- defendant; The proper time to make enquiry, into this title was when negotiations for the exchange were pending-; but we are of the opinion that the plaintiff should be required to show his title to the satisfaction of a Master of this Court-,, and if he fails in this we cannot compel the execution of the deed by defendant.
The plaintiff now says he is willing to include in his deed Apana 1 of the royal patent, and the parcel of 5-100 of an acre required by Captain Makee, in addition to the two apanas he originally agreed to give. We think he should be held to the offer made.
On the well-settled doctrine that a parole agreement to sell or exchange lands will be- compelled to be executed if it has-been earned into effect with- the knowledge and consent of the other contracting party, so that it would be against equity to repudiate it, we hold that the agreement of exchange in this case should be ordered. A decree in accordance with this decision will be signed on presentation by counsel.