Decision of
Judd, C. J.on the Merits.
A demurrer in this case was overruled April 2d, 1884.
Referring to my decision on the demurrer for a statement of the bill, it now becomes necessary to consider the case upon the further pleadings and proofs.
The plea and answer of C. Afong makes profert of the proceedings had in 1859 before the acting Chief Justice in the case of Theophilus Metcalf against Emma Metcalf, the present plaintiff, and avers that the record shows no fraud, collusion or error in law, and that the decree therein is final and conclusive upon the plaintiff. It also pleads the records of the Probate Court and shows that on the 6th day of July, 1874, the administrator with the will annexed of the estate of Theophilus Metcalf, deceased,- filed his petition for sale of the real estate of the decedent for payment of his debts; that an order was made appointing a time for hearing and for those-interested to show cause why the same should not be granted; that at the hearing it was proved that notice had been served on the plaintiff, that she appeared by counsel and opposed the granting of the petition, and after full hearing, an order of sale was made by the Probate Court on the 17th day of September, 1874, and that *550after the sale had been made, the administrator filed his petition for confirmation and for authority to execute a deed of conveyance therefor to this defendant, and that after notice to the plaintiff, an order confirming such salé and authorizing the conveyance was made; that plaintiff appeared personally or by counsel at all said hearings, and that she is precluded by the orders therein from now contesting said sale; also, that defendant paid $66,600 for the land sold to him, and that at or before the execution of the deed he had no notice that the claim of the plaintiff that the decree of July 1st, 1859, in Chancery, was contrary to law, or that the same defrauded her of her property, or that she claimed to be the legal or equitable owner of the real estate otherwise than as a devisee thereof under her said father’s will, and that defendant never had notice of plaintiff’s claim until immediately before the filing of this bill. The answer further specifically denies or admits or avoids the allegations in the bill.
It is necessary to restate a few of the facts of this case. In 1852 Theophilus Metcalf bought of the Government the land of Kaupakuea and procured the Royal Patent therefor to be made in his daughter’s name (the present plaintiff). In 1859, in pursuance of a decree of Mr. Justice Robertson, acting Chief Justice of the Supreme Court, this land was conveyed to Mr. Metcalf by the guardian ad litem of the plaintiff. Mortgages were made by Mr. Metcalf on this estate, upon which was conducted a sugar plantation. Mr. Metcalf died, heavily indebted, in 1870, leaving by will this land to his daughter the plaintiff. The real estate of decedent, including the land in question, was sold in order to satisfy the debts of the decedent, by order of the Probate Court, before which Court the plaintiff appeared and contested many points, but said nothing as to the present claim that the decree of 1st of July, 1859, was a fraud upon her rights and contrary to law. If she had at this time knowledge that the patent of the land of Kaupakuea was in her own name and had been improperly conveyed to her father, it would have been her duty to make the objection then. But she says in evidence she supposed up to that time that her only title to the land was by virtue of the devise of her father, and that she ascertained *551the facts now presented in her bill after the administrator’s sale to the defendant, Afong. There is no proof that the defendant Afong had any direct notice of her claims upon this land except as made to him by plaintiff in conversation. But this conversation was subsequent to the administrator’s deed, as it was only then that the plaintiff herself knew the facts she communicated to Afong.
F. M. Hatch, for plaintiff. A. S. Hartwell, for defendant Afong. Honolulu, December 23, 1884.So far then as direct knowledge of this claim is concerned, Afong had none when he bought this land. But it is urged that Mr. Afong took by the administrator’s deed whatever estate Mr. Metcalf had and no more, and that he is charged with notice of the record of 1859.
It is to be presumed that the deed of the guardian ad litem to Theophilus Metcalf, in pursuance of the decree, is on record. But there would be nothing in this to put the purchaser on inquiry as to the alleged fraud and illegality of the decree obtained fifteen years previous.
I am of the opinion that Mr. Afong must be regarded as a bona fide purchaser for value, without notice of the matter now set up against the decree, and as this is conclusive of the case, I do not deem it necessary to pursue further the inquiry whether the original decree is now reversible.
Bill dismissed.