(dissenting).
My associates hold that the decision of the territorial Supreme Court is manifestly erroneous. Nevertheless, instead of reversing, they propose to remand the cause, apparently in order that the court below may have opportunity of correcting its error. This seems to me an odd procedure, the probable consequence of which will be no more than expense and delay. The appellees in the normal course of litigation would have the right at this juncture of seeking certiorari, but in the equivocal posture of the litigation they can hardly hope to get the ear of the Supreme Court.
The negligence of Pae, as found below, was, first, his not speaking up in the probate proceeding when it was stated in his presence that he was an adult, and, second, in not making it known to the Land Court that he was incompetent to convey land. My associates declare that “it may be flatly said here that there was no such duty upon the infant.” One of the reasons they give for this fiat holding appears to be that Pae was not present at the Land Court proceeding. A fair answer to this would seem to be that Pae had knowledge of the application and that he assented to it. It is said that there is no evidence that Pae was familiar with the requirements of the law. But is there not a presumption that he knew the law? Another reason my brothers give is that the imposition of a duty to speak and intervene would, if applied to appellant, have to be applied to all incompetents, even to babes in arms. I suggest in reply that the duty actually imposed by the statute is a duty to act reasonably. The Hawaiian court thought that appellant, a 19-year-old high school graduate, did not act reasonably when he failed to speak up at the probate hearing and when he failed to come forward and inform the Land Court that he was a minor. I have difficulty in seeing manifest error in this finding.
As I understand the opinion of my associates, it reasons as follows: First, this is an action in contract; second, at common law a minor has an absolute right to rescind a contract, except perhaps for necessities; and third, the negligence of a minor can not bind him to a contract. A difficulty with this course of reasoning, as I see it, is with the assumption that this case is truly an action in contract. The statute states that a suit under it shall be in contract, but the whole nature of the cause of action against the Treasurer appears to sound in tort. No contract between Pae and the registrar of deeds is apparent. Pae has a statutory right of action for damage to him caused by the registrar’s mistake, negligence, fraud, omission, etc. These are the terms of a tort” action; not of a contract action. Therefore, although at common law infancy is a complete defense to an action for performance of a contract into which the infant has entered, it is also true that the common law recognizes contributory negligence on the part of a minor. What constitutes negligence in any individual case depends upon the extent of the incapacity, for as a general rule one’s acts are to be judged by those of the reasonable person of like age as himself. This would appear to be a case where the common law rule, applicable to a suit on a contract entered into by an infant, is being applied to a suit which is in contract only because of and to the extent that the statute says that the suit shall be brought in contract. This does not appear to me to be sufficient reason for holding the interpretation of the Hawaiian court of an Hawaiian statute to be manifest error.
In its opinion the territorial court held that, as of the date of sale, the fair market value of the land was $14,000, whereas the purchasers paid but $5,750 for it. It held that, because of this great disparity, Pae should be required to seek recovery of the land from the purchasers before suing the Treasurer.1 I am *217wholly unable to see manifest error in this approach.
In my opinion the holding below should be affirmed.
. The governing statute, Section 12699, Revised Laws of Hawaii 1945, providing for an action against the treasurer for compensation for loss by the regis*217tered owner occasioned by the registration of any other person as owner through fraud, mistake, or misdescription in the certificate of title, requires (1) that such registration be without any negligence upon the part of the original owner and (2) that the original owner exhaust his right of action or other remedy before resorting to a contract action against the treasurer.