Dissenting Opinion oe
Judd, J.I have not changed my opinion in regard to this case, as given in my judgment, rendered February 26, 1875, from which this appeal was taken. I therefore respectfully dissent from the above ■ judgment.
Decision oe
Judd, J.,Appealed From.
The bill was filed September 16th, 1874. Defendant demurred for non-joinder of parties, September 23d; demurrer was sustained and the bill amended by adding Ekekela as party plaintiff. Answer was filed November 17th, and case brought on for hearing January 21st, 1875, and proofs closed February 8th. It appears from the pleadings in this cause that Kaopua, Kalama, Ekekela and Mahuia are the heirs-at-law of Kaleiheana, deceased, who was at the time of his death seized and possessed of the land “ Helumoa,” and that he was a tenant in common with Her late Royal Highness Victoria Kamamalu in the lands of “Kanewai,” “Kanewai Kahala,” and “Pahoa,” all of these lands being situate at Waikiki, Oahu, and also that the defendant is the heir-at. law of His late Highness M. Kekuanaoa, and of His late Majesty Kamehameha V., and that said M. Kekuanaoa was the heir of Her late Highness Victoria Kamamalu.
It also appears from the pleadings that a power of attorney was executed by Kaopua, Kalama and Nahua (now deceased, under whom Ekekela claims) to one A. J. Lawrence, on the 20th of December, 1867, acknowledged before Thomas Brown, Registrar of Conveyances, and by him recorded on the same day ,• and that under this pother, the said Lawrence executed, on the 18th March, 1868, certain deeds of conveyance as follows; of the said land “ Helumoa” to His Majesty Kamehameha V., for the consideration of Two Hundred and Fifty Dollars; of the lands of “Kanewai,” “Kanewai Kahala” and “Pahoa,” to J. O. Dominis, Administrator of the estate of Princess Victoria Kamamalu, for the consideration of Seven Hundred and Fifty Dollars, deeds *687recorded respectively on the 8th and 19th of September, 1874, and that said Lawrence signed the names of Kaopua, Kalama and Nah.ua to these conveyances as their attorney in fact.
The bill alleges that the said power of attorney to Lawrence was written in the English language, of which the orators were Ignorant, and that it was represented to them that this power gave said Lawrence, who was an attorney and counsellor at law, authority to recover said lands (which were then in the possession of His late Majesty Kamehameha V-,) by proceedings in Court, and that it was signed by them under that belief, and so far as the said power of attorney purports to authorize the said Lawrence to sell their said lands it is fraudulent and void, as they never gave or intended to give Lawrence any power to sell these lands, and the bill prays for a decree for the delivery and cancellation of said power, and also of the deeds of conveyance executed by said Lawrence. The bill, in short, alleges such misrepresentation as amounts to legal fraud.
The answer alleges that the said power of attorney was truthfully interpreted to said Kaopua, Kalama and Nahua, and that they knowingly signed, executed and acknowledged the same.
The main question at issue is whether this power of attorney was executed by the parties with a full knowledge and understanding of its contente.
The burden of proof is upon the plaintiffs to establish their ease: -■! Fraud will never be presumed, but must be clearly established by proof; dolum ex indiciis perspieuis probari convenit. It is not, however, necessary that positive and express proof thereof should be given; for whenever it is manifestly indicated by the circumstances and condition of the parties contracting, it will be presumed to exist.” Story, Contracts, §499.
As a Court of Equity, invested with more extensive and unrestricted jurisdiction than Courts of Law in cases of fraud, I now examine the whole transaction to see if fraud can be inferred from the special circumstances of this case.
The plaintiffs have shown energy, determination and persistence in pushing their claims for these lands, really worthy of admiration. The records of this Court show four actions of ejectment brought by them against the late John Ii, who was guardian *688of the late Princess Victoria Kamamalu, to recover possession of these lands. But in three of these eases they were nonsuited and the last ease was discontinued on their own motion.
The Princess Victoria having died in 1866, June 29th, they employ Mr. W. C. Jones, an attorney of this Court, who had lately arrived in this Kingdom, and on July 11th, 1866, he procured the allowance of their accounts as administrators of the estate of Ka-leiheana, and they were decreed to be his heirs.
Mr. Jones, in 1867, drafted for them a bill for partition of these lands, in which they pray that M. Kekuanaoa, as administrator of the estate of the late Princess, may be made a party defendant. Mr. Jones says that Mr. A. J. Lawrence was associated with him in the ease, and that the bill was never filed because Lawrence retained it, and had worked him ( Jones) out and himself into the plaintiffs’ confidence, but finally Lawrence returned it, saying it was “ all right.”
Lawrence prepares an exhaustive statement of the claims of these plaintiffs as the heirs of Kaleaheana, and has it presented to the King, Kamehameha V., who was then in possession of these lands ,• it prayed the King to allow them to take possession of He-lumoa and to divide the other lands with them. Next comes the power of attorney to Lawrence, executed December 20th, 1867, On March 17th, 1868, J. O. Dominis, then sole administrator of the estate of Princess Kamamalu, applied for and received permission from the Court to expend $1200 of the funds of the estate in the purchase of the interests of the heirs of Kaleiheana in these lands.
Lawrence appeared for the heirs of Kaleiheana. The deeds by Lawrence were made the next day, March 18th, 1868.
The property in question is estimated by Dowsett and Pico as worth the sum of $4,500 to $4,900, but as the interest claimed by the plaintiffs in all the lands except Helumoa is only a half interest, it would be fair to estimate the value of the plaintiff’s interest at from $2,800 to $3,000.
The plaintiffs no doubt set a higher value on the property as being the ancestral domain, and on account of the expense which they have incurred in their hitherto unsuccessful litigation for this property.
*689I refer to the value of the property as compared with the price which Lawrence obtained for it, being only about one-third, not that the bill alleges inadequacy of consideration, but as tending to throw light on the question whether these people could have intended to give full authority to Lawrence to sell their interest in this property wdthout limit as to price for any sum which suited his views, and without any reservation to themselves of the right of ratifying the sale.
It is in testimony that Kaopua is quite hard of hearing; that Nahua was elderly, one of the old-fashioned retiring Hawaiians, and Kalama seems to be possessed of more zeal than intelligence.
Was it likely that they would have given this unconditional power of sale to Lawrence, a comparative stranger to them, if they had fully comprehended its import?
It is alleged in the bill that they did not understand it as meaning what it expresses on its face. The answer alleges that they did so understand it. The testimony of the subscribing witness, Ragsdale, was taken ; the other subscribing witness, J. D. Halai, having died since the bill was filed. Ragsdale swears positively, “ I read the paper to them so as to impart the same impression to them that I received from the paper myself,” and “that they undoubtedly understood thoroughly that the document gave Lawrence the power to lease, sell or compromise the land, because that was the gist of the whole matter.”
Such testimony by a subscribing witness is very strong and requires strong proof to gainsay it. Ragsdale’s memory is somewhat shaken, in my opinion, by the three letters written by him. Jan. 12th, 1874, he writes to Wm. Austin Mahuia that the paper he witnessed and translated was a deed, and the money mentioned was $800. Sept. 22d, he writes to Mr. Hartwell that the paper was a power of attorney, and that the parties were induced to sign the same because Lawrence said that he could make it profitable for them, and that he could get at least $1,600 or $1,800 for the lands. Oct. 1st, he writes to Mr. Stanley, that his memory had been very much assisted by Mr. Stanley’s letter,etc., and that he ispositi ve that the parties “knew they were giving Lawrence full power to sell, compromise, lease or otherwise, all their rights and titles to the *690property mentioned in the power of attorney.” He adds that something was said by Lawrence before the parties signed the document, of the petition to the King and the Court business. He says also that William Austin was one of the parties to the power of attorney, which is not the case.
In his testimony before the Master he says, that after witnessing the power of attorney “Lawrence suggested that I should add on this certificate.” “ When they signed the paper I put on the certificate.” The witness did not have the original before him when he gave the testimony or he would have seen that the certificate referred to, of his having correctly interpreted the document, was written by Halai, and evidently contemporaneously with the entire instrument.
The loss of Halai’s testimony is to be regretted. I regard Rags-dale’s testimony as amounting to this : that he was called over to Lawrence’s office just before Court time, and interpreted the document in the usual manner, the impression being left on his mind that the parties understood the same.
The power of attorney, though drafted by Halai, a Hawaiian, is in the English language, a circumstance of slight importance perhaps, but it is enough to rebut the presumption that they understood it and creates the necessity of showing knowledge on the part of the plaintiffs of its contents.
The impression left on the mind of a Hawaiian bystander is valuable as showing the impression likely to be left on the plaintiffs’ minds.
S. W. Mahelona testifies that he stood at the door of the office and Ragsdale said “ this paper is to authorize Lawrence to act for you, to attend to your lands for you, and talk with the Alii about the land ; and if the Alii should wish to lease or buy the land that he would come and consult with them. I saw them sign their names. Lawrence talked some in Hawaiian himself, and he said this paper is for me to attend to your land, for me to talk with the Chief, and if he wishes to lease or buy I will come and let you know. After the paper was signed I told them if Lawrence can get six or seven thousand dollars for your land you had better self.”
Mahelona understood that the power of attorney gave Lawrence *691the power to negotiate, but that the parties reserved the right to ratify any bargain, and were to be consulted as to the price; and, if these were really the representations made, the contract does not express the true intention of the párties.
H. L. Sheldon testifies that in. 1867 he occupied a desk in Lawrence’s office, and frequently interpreted between him and these claimants about the lands in question, and after Lawrence had said to him that he was in treaty with the King, through Governor Dominis, for a sale, he told Kalama of this, and she replied that they wanted to get the land back, and would not sell it.
If this conversation took place after the signing of the power of Attorney, it shows what Kalama then understood Lawrence’s powers to be; and it is not likely that Lawrence would have commenced negotiations to sell until after he received the power. After Sheldon learned that Lawrence had sold the lands, he told Kaopua and Kalama of it, and that the money, $1,200, was in the bank for them, and they indignantly declared they would never touch a dollar of it; and as a matter of fact, they have not received any of the money.
Mr. Jones said that when he charged Kaopua and the others with having authorized Lawrence by power of attorney to sell the land, they denied it to him.
Mr. William Austin says that when he (after having refused to sign the power of attorney on Sheldon’s request) told these people what they had done, in signing this power of attorney, Kalama said, “ Auwe 1 ” (alas) and that they had not signed such a paper, but they gave Lawrence a power of attorney to act as their attorney.
I do not regard the testimony of Registrar Brown who took their acknowledgements as conclusive, for he merely asked them if they had signed the paper, and asked them no question drawing from them their understanding of the paper, nor did he tell them what its contents were.
I am forced to the conclusion that the plaintiffs believed that they were authorizing Lawrence to act for them in recovering the land, and to negotiate a sale which, if the terms were satisfactory, they would assent to.
Why should Lawrence have mentioned any sum of money to them when by the power he was unlimited as to price, unless to *692induce them to sign the paper, and without which allurement they would not have signed?
I see no necessity for any power of attorney. The parties were all residents here, well known, easily accessible and not numerous. Their claims to these lands were, notorious.
It is urged by the defendants’ counsel that the plaintiffs must have known of Lawrence’s authority to sell, because there were certain proceedings in the Probate Court, in the estate of Victoria Kamamalu, in which Lawrence appeared as attorney for the heirs of Kaleiheana. I do not regard this as of much force, for no public notice of this hearing was made by advertisement nor were the parties themselves present. Lawrence signed as attorney for the heirs including W. Austin, for whom he had no authority whatever, and though the price agreed upon for the lands was$l,200, the sum of $200 was retained on account of W. Austin’s nob signing the deeds.
It would seem that the notoriety of the former suits against Her .Highness Victoria’s guardian, and the unusual circumstances of their having constituted an attorney in fact, though residents in this Kingdom, ought to have put the Administrator, or whoever represented the Princess’ estate, on their inquiry. It would have been an easy matter to have ascertained from the parties themselves if they were willing to sell at this extremely low price.
The strongest point in the defense is the order putin evidence; it is in these words :
Honolulu, March 2d, 1869. Hon. A. J. Lawrence, Local Circuit Judge, Maui;
Sir: Please pay to Kaualua (w.), or order the sum of Six Hundred and Fifty Dollars out of the proceeds of sale.of Helumoa and Kanewai.
( Kaopua,
(Signed,) J Kalama,
$650. (_ Nahua.
Endorsement.
Honolulu, April 28th, 1869.’
I have Five Hundred Dollars in my hands belonging to these parties whp signed the within order, which I am willing to pay *693on this order when they will give me a receipt in full of all demands, and accept this order for the above amount subject to the conditions above specified.
(Signed,) And. J. Lawrence.
It is a well settled principle of law that if a person, with knowledge of the fraud, acquiesce in the contract expressly or do any act importing an intention-to stand by it, he cannot afterwards avoid it. Story, Contracts, See. 497.
Does this transaction make out a case of acquiescence in the fraud?
The date of the order is March 2d, 1869, more than a year after the power of attorney was given to Lawrence, and undoubtedly after the parties had knowledge of Lawrence’s fraud on them, if fraud it was. Mr. Widemann testifies that he wrote this order, acting for Kaualua, the payee, and interpreted it to the parties, and thinks they understood it, but did not take any particular pains to make them understand it, nor did he tell them they would lose their rights in the lands if they signed the order.
The witness states that these parties had come to his office to pay an amount of money which they owed his principal, Mir Spencer, and he, ascertaining that they had borrowed the money for the purpose from Kaualua, got them to sign this order that she might have some security; but it appears that on February 27, 1869, a few days previous, these parties had given a note to Kaualua for this very amount of §650, and had executed a mortgage in her favor on the very lands now in question and on some other lands on Hawaii, and their acknowledgments to this mortgage were taken the very day this order was signed.
Though this would be a very strange transaction among intelligent people, yet we must remember the readiness with which old natives sign papers, not clearly understanding their import. It seems to me that they must have confused this order with some of the other transactions that were going on in Mr. Widemann’s office at the time, and did not intend by this to ratify or acquiesce in Lawrence’s sale, for all their#other acts and words clearly show no such intention.
Lawrence’s acceptance of the order, being willing to pay the sum of Five Hundred Dollars on condition of the parties giving *694him a receipt in full of all demands, shows that he deemed their discharge of some value to himself; but there is no evidence that any effort was made to procure their discharge of Lawrence.
Honolulu, February 26, 1875.I am aware that great caution should be used by Courts of Equity in exercising the power of ordering solemn instruments affecting real estate to be delivered up for cancellation, and it is a matter of congratulation that the Courts of this Kingdom have only twice in the last ten years exercised this power.
In this case I cannot avoid the conclusion that the power of attorney was obtained by fraud. It must be remembered that Lawrence occupied towards these parties the relation of attorney or solicitor to clients; and equity would interpose to declare transactions between them void which between other persons might be held unobjectionable. 1 Story Eq. Jur. §310. He made use of his confidential relation to secure a power of attorney utterly unjust and inequitable, for it gave him the power to sell their lands for any sum however insignificant and inadequate, and was in its terms “irrevocable until the objects for which it was given shall be accomplished by him.”
It would do violence to my sense of justice to allow such a transaction to stand, for if Lawrence had not been inclined to sell, he could hold the real estate tied up by this power so long as he lived and thus deprive these parties of their right of alienation.
A decree will be signed ordering the power of attorney to Lawrence, and his conveyances under it, to be delivered up for cancellation.