Dissenting Opinion of
Mr. Justice Dole.I doubt the correctness of the decree appealed from, with regard to the defendant. Mana. No evidence was taken and the inference from the bill and answer that the deed from the Kaaukais had not been delivered to Mana when the plaintiff, Kailaa, first applied to him for the return of the land, appears to me to be based upon insufficient foundation. The bill in section 10 alleges that the defendant, S. M. Kaaukai, told the plaintiff that he “had sold the land to Mana, defendant herein, and given him, said Mana5 defendant, a deed of said premises.” Mana in the answer alleges, “It is true, as stated in the 10th section of the bill, that he did receive a deed from S. M. Kaaukai and J. C. Kaaukai, two of the defendants, for the land in question.” These statements clearly refer to a period previous to the first application by the plaintiff to Mana to return the land. If it was a fact that the deed was delivered to Mana at that time, the title passed thereby, and he was an innocent purchaser, so far as is shown, unless the inadequate price mentioned in the deed from Kailaa should have put him on his inquiry. There is nothing in the record to oppose this theory but S. M. Kaaukai’s allegation in the answer, that when the plaintiff applied to him to have the land returned to him, he “informed plaintiff that the land had been sold to Mana for $150, and that $100 had been paid and $50 was still due, and that he then held the deeds of the land for the balance,” which would be consistent with the theory that the deed was delivered to Mana, and thereafter was deposited by him with S. M. Kaaukai as security for the balance of the price of the land.
*660Even if it is true, as it may be, that the deed was not delivered by S. M. Kaaukai to Mana at first, but was held back until the balance was paid, it was finally delivered in February, 1886, and recorded; under these circumstances the conclusion of the Judge at Chambers, that Mana had been put on his inquiry before such delivery, is a matter of inference from what appears to me to be very meagre data. The following is all the record has to offer on this point. Section 11 of the bill: “ That shortly thereafter your.orator went to said defendant Mana and tendered him the said $20, but said Mana refused to receive said money or to return said first-mentioned deed to your orator, or to re-convey the said premises to jrnur orator.” Section 2 of Mana’s answ’er : “ It is true that the plaintiff did come to this defendant, as is stated in th'e 11th section of the bill, but that he did not offer this defendant $20 as stated in said 11th section, but he said he had heard from S. M. Kaaukai, one of the defendants, that the land had been sold to this defendant, and so he had come to pay this defendant $100 for said land.” There is certainly nothing here to have awakened suspicion in Mana’s mind that there was anything wrong in the transaction between Kailaa and S. M. Kaaukai, or to put him on his inquiry.
Nor does it seem to me that the inadequate price of $20 named in the deed from Kailaa necessarily put Mana on his inquiry. A price named in a deed is only prima facie evidence of the real consideration. Moreover Mana- in his answer denies all knowledge of the private arrangements between Kailaa. and S. M. Kaaukai, such as would put him on his guard in the matter, or inform him that a mortgage was intended by the deed from Kailaa.
The price of the land as conveyed to Mana is a better indication of its real value than the allegation of the bill of complaint, and considerably reduces the disproportion of the prices named in the two deeds.
It may be that there was evidence that would make Mana liable in the matter, but. the record as it stands does not implicate him, to my mind, but leaves him in a position of an innocent third party, who is entitled to protection as such.