Kaaukai v. Anahu
| Decision Date | 15 November 1927 |
| Docket Number | No. 1768.,1768. |
| Citation | 30 Haw. 226 |
| Parties | NANCY L. KAAUKAI v. JULIA M. ANAHU, WM. K. ANAHU AND ELEANOR EN LOY AMANA. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. F. ANDRADE, JUDGE.
Syllabus by the Court
A power of attorney authorizing an agent to sell the real property of his principal does not authorize the mortgaging of said property.Heen & Godbold for petitioner.
C. B. Dwight for respondents.
This is an appeal from a decree ordering the cancellation of two instruments in writing purporting to convey title to land. On the 19th day of June, 1925, the petitioner, Nancy L. Kaaukai, by written power of attorney, authorized Julia M. Anahu, one of the respondents, to “grant, bargain and sell” in behalf of the former any land in the Territory of Hawaii belonging to her or in which she might have an interest. On February 12, 1926, Julia M. Anahu, without the knowledge or consent of her principal and assuming to act under her power of attorney, executed in behalf of Nancy L. Kaaukai an instrument in writing purporting on its face to be a deed of conveyance, by which she attempted to convey to Eleanor En Loy Amana, one of the respondents, for a recited consideration of $500, certain described lands belonging to the said Nancy L. Kaaukai; on the same day Eleanor En Loy Amana, by an instrument in writing purporting to be a deed of conveyance, for a recited consideration of $500, conveyed the same to William K. Anahu, the third respondent. William is the husband of Julia M. Anahu. It is conceded that neither the $500 recited in the first deed as the consideration for the conveyance to Eleanor En Loy Amana nor any part of it was paid by Eleanor or any one in her behalf. It is likewise conceded that no consideration was paid by William K. Anahu for the conveyance to him. Under these circumstances, if these instruments are to be considered as deeds of conveyance they are absolutely void for the obvious reason that the authorization from Mrs. Kaaukai to Mrs. Anahu to sell her lands conferred no authority to give them away. This is not denied.
It is contended, however, by the respondents that these instruments, purporting to be deeds, were never intended by them as deeds but merely as a mortgage and were executed for the purpose of securing an indebtedness which Mrs. Kaaukai owed Mrs. Anahu. This contention is set up by way of cross bill, the prayer of which is that the two instruments be declared to be a mortgage in favor of the respondent Julia M. Anahu to secure whatever amount the court might ascertain the petitioner owed Mrs. Anahu. This appears to be the theory upon which the case was tried and decided in the court below. These written instruments, however, had no more validity as a mortgage than they had as deeds. Mrs. Anahu was only authorized by the power of attorney which she held to “grant, bargain and sell”...
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