Perreira v. Perreira

• Citation: 50 Haw. 641,447 P.2d 667
• Decision Date: 22 November 1968
• Docket Number: No. 4709,4709
• Parties: John PERREIRA and Ethel Ho Perreira v. Louis PERREIRA, Sr., Louis Perreira, Jr. and James Perreira.
• Court: Hawaii Supreme Court

Page 667

447 P.2d 667

50 Haw. 641

John PERREIRA and Ethel Ho Perreira v. Louis PERREIRA, Sr., Louis Perreira, Jr. and James Perreira.

No. 4709.

Supreme Court of Hawai'i.

Nov. 22, 1968.

Syllabus by the Court

1. An oral contract with respect to interest in land becomes enforceable, in spite of the Statute of Frauds, if there has been part performance.

2. The acts constituting part performance must be pursuant to the contract with the knowledge and consent of the other party, and must be such that to allow the other party to repudiate, would be a fraud upon the plaintiff.

3. Although the description of the life interest was not clear at the making of the oral contract, possession pursuant to the agreement, unchanged over a period of time, determined the boundaries sufficiently.

C. Duane Carlsmith, Greenstein, Cowan & Carlsmith, Hilo, for defendants-appellants.

L. N. Nevels, Jr., Nevels & Chang, Hilo, for plaintiffs-appellees.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and KING, Circuit Judge, assigned by reason of vacancy.

RICHARDSON, Chief Justice.

In 1946, John Perreira, plaintiff herein ¹, orally agreed to give to Louis Perreira, Sr., a defendant, and Gilbert and Daniel Perreira ², predecessors in interest of the remaining defendants, a piece of land in Hilo upon which they could build a general grocery store. Donor imposed the conditions that donees should not sell the land except to relatives and except by his consent, and the further condition that John could use a portion of the future store for life without obligation or rent. The store opened in May, 1947; about the same time, John opened a pool hall business, using one-fourth of the store building without payment of rent.

On September 15, 1947, the original parties other than Louis Perreira, Sr., incorporated the terms of the agreement into two original memoranda. However, a later deed dated January 31, 1948, and recorded May 19, 1948, conveyed to the parties a larger portion of land for a consideration of 'ONE Dollar ($1.00) in United States currency to me in hand paid, the receipt whereof is hereby acknowledged, and also for other sufficient and valuable consideration.' The conditions were absent from the deed. Subsequently, the parties asked John to move out of the store so that they could use the space to expand the store. He agreed on condition he could return at a later time to open another business. In 1952, he returned to open a liquor store in a portion of an addition to the original building, which the defendants had built during the interim. He occupied, improved and operated the liquor store without incident until 1960 or 1961, when Louis, Sr., demanded of him rent of $35 per month; he refused to pay. When defendants formally demanded that John vacate the premises in 1965, he initiated this action to remove the cloud on his title by adverse possession, or alternatively, to reform the deed to establish his life interest.

The trial court ignored all transactions prior to the deed on the theory that the parol evidence rule prevents admission of extrinsic evidence to vary the terms of the deed. Considering events subsequent to the conveyance only, the court found that defendants-appellants owned a fee 58 76 feet, or 4408 square feet, subject to a life estate in plaintiff, acquired by adverse possession, or alternatively, by oral agreement which had become enforceable due to part performance.

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