Hurst v. Kukahi

OPINION OF THE COURT BY EDINGS, J. The petitioner-appellee instituted a suit in equity in the circuit court of the fourth circuit of the Territory for specific performance against the respofidents-appéllants. The facts found by the trial judge and supported by the evidence are, in substance, that the respondent Kukahi on the 4th day of December, 1916, executed and delivered to the petitioner a certain contract for the sale of land therein set forth, which contract is as follows: “Hilo, Hawaii, December 4th, 1916. Received from David Hnrst the snm of ten and no/100 dollars, as part payment for the purchase price of land situate at Puueo and known as Kupihee Estate, Total Purchase Price $1400.00. [195] The balance to be paid upon and after the Abstract of Title is received from Honolulu, and the title to said land found to be my own. P. Kukahi. Witness to signature Jos. S. Ferry,” it being agreed that the petitioner was to bear and defray all costs and expenses connected with the sale of the land, such as procuring an abstract, preparing a deed and any attorney’s fee for services. On account of delays for which neither the petitioner nor his attorney, J. S. Ferry, was responsible the abstract to the property Avas not received until the 12th day of April, 1917. After the abstract had been ordered by Ferry, the attorney for petitioner, and prior to its receipt, Mr'. O. T. Shipman, the attorney at law of the respondent Baker, on several occasions visited the office of said Ferry on other business connected with Kukahi. At the time of these visits Mr. Shipman knew that Kukahi had agreed to sell the land. On or about-the 20th day of June, 1917, petitioner, through his attorney Ferry, presented to respondent Kukahi a warranty deed of said premises and tendered him the balance of the purchase price. The respondent Kukahi refused to execute the deed and requested Ferry to go with him to the office of Mr. Shipman. Upon arriving there Mr. Shipman advised Kukahi not to sign said deed and informed Mr. Ferry that Kukahi had already conveyed the property to the respondent John T. Baker by deed dated April 16, 1917 (Defendants’ Exhibit 1). It further appears that prior to February 9, 1917, Kukahi had informed Baker “that he went to Ferry and had signed a paper for him not to sell the land to any one else.” About this time the respondent Baker paid a mortgage on this property given by Kukahi to one Peterson and he had sufficient knowledge to put him upon inquiry as to the existence of the “agreement of purchase” and “took with actual knowledge of the agreement.” S. 8. Rolph {Ca-rlsmith £ Rolph on the brief) for petitioner. W. H. Smith for respondents. We are unable to discover, in this transaction any unfairness, injustice or inequality such as to cause a court of equity to refuse specific performance, nor does the price appear inadequate, at least not so inadequate as to warrant the refusal of a court of equity to lend its assistance upon that theory. Nor can the respondent Kukahi complain of laches on the part of petitioner, as he (Kukahi) had prior to April 16 put it out of his power to perform. The question of laches does not depend upon the fact that a certain definite time has elapsed, but whether under all of the circumstances petitioner is chargeable with a want of clue diligence. “A delay which neither evidences an abandonment of right nor operates to the prejudice of the other party is not a defense.” 36 Cyc. 729, 730; 2 Pomeroy’s Equitable Remedies, Sec. 814. The evidence shows that such delay as there was was not unreasonable, did not operate to the prejudice of the respondent Kukahi and did not evince an intention of abandonment upon the part of the petitioner. The respondent Baker took with actual knowledge of the existence of the agreement of sale between the petitioner and the respondent Kukahi and is bound by the same equities. Green v. Pope, 6 Haw. 235; 39 Cyc. 1648-1703; 36 Cyc. 761. The decree appealed from is affirmed.