
    ISAAC S. KAIU AND JOSEPHINE KAIU v. MIKAHALA K. KAEO AND S. K. KAEO.
    APPEAL BTtOM CIRCUIT JUDGE, FlPTII ClROtTIT.
    Argued September 5, 1907.
    Decided September 20, 1907.
    ITaRTWELL, O.J., AYlJVDEE AND BaLLOU, JJ.
    Caín'GELATION OP INSTRUMENTS.
    A decree dismissing a bill to cancel a deed is affirmed on the evidence.
   OPINION OP THE COURT BY

BALLOU. J.

This was a bill to cancel a deed, alleging in substance that Isaac S. Kaiu "was the owner of a piece of land at Nawiliwili worth $1200 and two lots at Waipouli worth $1900; that he was in trouble and threatened with being arrested on a criminal chai-ge connected with an indebtedness to AY. H. Dice, and that oil the advice of defendant, S. K. Kaeo,- an attorney at law, lie conveyed the land to the latter’s wife, Alikahala, with the understanding that after the trouble was over she would reconvey to Isaac’s wife, Josephine Kaiu; that the consideration of $280 named in the deed was inadequate; that no part of it was ever paid to the plaintiffs; that the amount was inserted because S. K. Kaeo informed Isaac Kaiu that it was necessary to have some consideration named in the deed; that thereafter the plaintiffs, being frightened and under the influence of said S. K. Kaeo, joined in a mortgage of the land made by defendants to George N. AA’ilcox; that thereafter defendants claimed that the deed was an absolute conveyance and proceeded to demolish one of the buildings on the lands. The bill prayed ‘‘that respondents be ordered to produce in court said deed executed by petitioners to said IVIikahala K. Kaeo and deliver the same to the clerk of the court and the same to be turned ever to petitioners;” for a reconveyance to Josephine Kaiu free and clear of incumbr anees; with prayers for alternative and general relief. The answer claimed that the deed in question was executed upon the proposal of Isaac Kaiu that Mikahala Kaeo buy the lands; that the parcels were worth $450 and $400 respectively; that beside the consideration named Mikahala Kaeo was to pay a mortgage to -J. A. Magoon on these and other lands of Isaac Kaiu amounting to $250 with'$15 interest; that the consideration had been paid and the Magoon mortgage can-celled; that the consideration was adequate; and denied generally ihe equities of the bill. The circuit judge, after hearing the evidence, decreed that judgment be entered for defendants with costs.

It appeared from the evidence that prior to the execution of the deed in question on November 2, 1906, Isaac Kaiu was in trouble through having issued to W. H. Kice a check for $210 without funds'to cover it. Nice’s attorney, Willard, prepared a mortgage on plaintiffs’ lands, which had been previously mortgaged to J. A. Magoon, but this mortgage plaintiffs refused to sign. According to the plaintiffs their refusal was based on the advice of Kaeo, who proposed that they should deed the land to his wife in order that Kice may not be able to get it upon execution. Kaeo denies advising them on this subject and testifies that a proposition of sale was made to him by Kaiu. The deed in question was executed but no money passed at the time, Kaeo testifying that he kept the money at Kaiu’s request, placing it in a sealed envelope in his safe.

On November 18th the plaintiffs were at the house of the defendants, and Kaeo produced an envelope which contained $280 in gold. There is but little discrepancy in the testimony as to what was said at this time. Isaac Kaiu asked if his land was sold absolutely and upon Kaeo’s answering in the affirmative said that he understood that it was sold only temporarily and that it was to be reconveved to his wife after his trouble was over. Kaeo then said, according to his own testimony, “If that is your opinion then this sale is rescinded. You return the money and the lands will be reconveyed to you.” According to Isaac Kaiu, Kaeo said, “If I liad known that was to have been die case I would not have done this. Ton want me to help yon and I get nothing for it. I consent if yon will pay me back all of my money then I will either transfer the land back again to you or your wife.” Mrs. Kahele’s version is “If you think that way you return ‘the money and we will return the land.”

In all events, 'Isaac Kaiu raised no further objection but took a small payment from the $280, and two receipts' covering the balance, and instructed Kaeo to pay the indebtedness to Rice, which was afterwards done. The balance was paid to Kaiu in small instalments as he called for it, or “borrowed” according to plaintiffs’ version. The Magoon mortgage was paid off by the defendants, thereby releasing other lands of the plaintiffs from this incumbrance.

It is obvious that, whatever may have been the misunderstanding when the deed was originally executed, the acceptance by Kaiu, after the issue as to whether the sale was absolute had been clearly raised, of part of the consideration together with receipts for thie remainder which 'was paid for his benefit, amounted to a ratification of the sale. The circuit judge who heard the witnesses found that this was a ratification as testified to by Kaeo, and we see no reason for disturbing this finding. Written instruments are neither to be set aside nor varied by parol evidence unless that evidence is clear and convincing. It is true that there is a shade of difference in Isaac Kaiu’s version of the conversation, which would still leave the transaction in the nature of a mortgage which he could redeem in the indefinite future, hut this is opposed to not only the weight of the testimony hut to the theory of plaintiffs’ own bill and evidence, which was that the conveyance was a naked trust and that they had received no paid of the consideration.

There is considerable difference between the proposition that the conveyance was one without any consideration, designed to put the real estate beyond the reach of execution in case of trouble, and the proposition that it was a mortgage to raise money with which to avert the trouble; and the plaintiffs’ case is not helped by the fact that a great deal of the evidence adduced to support one theory negatives the other. Eor example, (lie fact that the deed included only part of plaintiffs’ lands, the insistence on the alleged threat of criminal proceedings, and the protest against, the sum of $280 as “too small,” would support the idea of mortgage but are inconsistent with the theory that Kain was trying to avoid execution; while the allegation of fright- and undue influence, the contention that the expressed consideration was only a formality, and the denial that any part of it was received, are intended to support the theory of avoidance of execution, but are out of place if the transaction was a mortgage.

There is but little significance to be attached to the plaintiffs subsequently joining by Avay of release in the mortgage to Wilcox. Inferences on either side can be drawn. Plaintiffs claim that it is suspicious that Wilcox should require them to join, but defendants explained that this was because the land was described in the deed from plaintiffs to Mikahala Kaeo only by reference to the records in Honolulu. On the other hand, the voluntary execution of this mortgage by the plaintiffs cannot be reconciled with either theory of their case. They claim that it was under the undue influence of S. K. Kaeo, in connection with the trouble over Rice’s check, but the money was then in hand to pay the check, as evidenced by receipts which Kain admitted that he had received, and although Kaeo is an attorney at law Kain does not claim that he had ever consulted with him as such or had any business with him. The preexisting relations of trust and confidence referred to in Hall v. Winam, 14 Haw. 306, are here wanting.

There is a groat deal of conflicting testimony as to the value of the lands conveyed, but inadequacy of price, if established, would not of itself be sufficient cause for setting aside tbe instrument. As tbe circuit judge says, “Tbe pressure upon petitioners to part wutli their land for less than its full value did not come from respondents but was occasioned by tbe course of Kain liim-self. Petitioners’ objection to the deed that the price was too small was raised and waived by Isaac Rain on November IS, 1906.”

J. Lightfoob (Magoon. <0 Lightfoob on the brief) for plaintiffs.

O. F. Qlemons (8. K. Kaeo and Thompson & Olemons on the brief) for defendants.

The decree appealed from is affirmed.  