Poka v. Holi

• Decision Date: 17 August 1960
• Docket Number: No. 4086,4086
• Citation: 357 P.2d 100,44 Haw. 464
• Parties: William C. POKA v. Nani HOLI, also known as Leinani Holi, individually and as administrator de bonis non of the Estate of Alice Holi, deceased.
• Court: Hawaii Supreme Court

Page 100

357 P.2d 100

44 Haw. 464

William C. POKA v. Nani HOLI, also known as Leinani Holi, individually and as administrator de bonis non of the Estate of Alice Holi, deceased.

No. 4086.

Supreme Court of Hawai'i.

Aug. 17, 1960.

Syllabus by the Court

1. Clear, definite and unequivocal evidence is required to warrant specific performance of a parol contract to convey land.

2. Equitable relief will be refused when, during inexcusable delay, the evidence has become obscured and, under the circumstances of the case, it is too late to ascertain the merits of the controversy. This rule particularly applies when some or all of the parties to the contract have died.

3. In order for possession to meet the defense of laches, it must be such as to assert the right under the contract sought to be enforced.

Brahan Houston, Honolulu, for appellant.

Spark Matsunaga, Honolulu, Matsunaga & Oki, Honolulu, on the brief, for appellee.

Before TSUKIYAMA, C. J., and MARUMOTO, CASSIDY, WIRTZ and LEWIS, JJ.

LEWIS, Justice.

This action for specific performance was commenced on January 10, 1957, against Nani Holi, individually and as administrator de bonis non of the estate of Alice Holi, who died January 28, 1937. Defendant appealed from a judgment for plaintiff, entered April 30, 1958 on a decision rendered April 10, 1958.

Plaintiff William Poka, a half-brother of deceased, was appointed administrator of her estate on April 13, 1937. On March 28, 1956, he was ordered removed for failure to file his accounts, among other reasons. Thereupon Nani Holi, the husband of the deceased, defendant herein, was appointed administrator de bonis non.

The complaint alleged an agreement between plaintiff, sometimes referred to hereinafter as 'William,' and his half-sister, the decedent, hereinafter referred to as 'Alice,' concerning certain improved real property at 287 Kalihi Street, Honolulu, containing an area of 7,500 square feet. This property belonged to Alice, who had acquired it from her former husband, one Fernandez.

It was alleged in paragraph 3 of the complaint that in December, 1930, William and Alice mutually agreed that if William would take possession of the property, pay the balance of the mortgage payments then due and owing upon said property, the insurance premiums, and all other expenses in connection with the improvement and upkeep of the property, Alice would execute and deliver to William a deed of the premises upon the completion of all mortgage payments connected therewith. It further was alleged that this agreement was entered into 'for the reason that said Alice Holi was not able to meet the mortgage payments and other expenses relative to said premises and thereby faced the possibility of a mortgage foreclosure, and for the further reason that the relationship between said Alice Holi and her husband, said Nani Holi, was at that time strained and bitter, and it was the desire and intention of said Alice Holi that the property should go, not to said Nani Holi, but to plaintiff.'

On March 9, 1957, the court denied defendant's motion to dismiss and motion for summary judgment. On March 20, 1957, defendant filed his answer, denying the allegations of paragraph 3, as well as other allegations, asserting that William was a tenant of the deceased, and presenting the defenses of laches and nonjoinder of parties, which earlier had been presented by motion.

Trial was held July 30 and August 29-31, 1957. Previously, considerable testimony had been taken in the probate proceedings and during the hearing of the motion for summary judgment. It is the testimony taken at the trial, chiefly William's, to which we refer below.

William testified that he moved to the Kalihi Street premises from the Kamehameha Alumni Club House, December 30, 1930. Previously, he had lived on Lusitana Street, paying a rental of $25 per month. When his wife, a school teacher, returned to Maui at the beginning of the school term, he moved to the Club House, where he paid only $8 per month. He had steady employment and was contemplating taking over a place on Pacific Heights which a friend was about to lose by mortgage foreclosure, and which he could obtain by assuming the mortgage.

Alice had had unsatisfactory tenants and was behind on the mortgage payments on her place. She was afraid she was going to lose the property, and asked William to help her pay the mortgage. William reminded Alice that she already owed him the $300 she had borrowed from him at the time of the death of their mother. He told Alice that he was unwilling to make the mortgage payments unless the property was turned over to him. According to William, Alice said: 'Yes, I'll turn this property over to you because Nani Holi is always gallivanting with other women.'

William told Alice he was willing to make the mortgage payments and continue staying at the Kamehameha Alumni Club House 'on condition that you turn the property over to me after I pay the mortgage.' However, Alice said: 'Why pay the extra rent. You stay here until you pay the mortgage. Then the property is yours.'

At one point, on cross-examination, William testified that 'she owes me money, and the fact that she knew she couldn't pay it, and that's why she made this agreement.' At another point, upon questioning by the court, he testified that his sister wanted to do something for him.

Alice told him that there was a $1,400 mortgage on the place. The mortgage payments were $35 per month. He understood that the mortgage was made in February or March of 1930, and figured that during the period of approximately nine months which had elapsed Alice had paid about $300, which would leave about $1,100 to $1,200 for him to pay. He did not know whether the interest was 6% or 8%.

The former tenants had been paying rent of $35 per month for a fully furnished house. When William moved on the premises he found that Alice had taken out most of the furniture. The place was in very bad condition.

William paid the sum of $35 per month from the time he moved onto the premises, and continued paying for seven years. He has remained in possession and was in possession at the time of the trial.

At first, for a few months, William paid the $35 per month to Alice, but thereafter, 'I made a point to go down to Union Trust and pay myself.' He testified that even before Alice's death it was he who paid the real property taxes, but there is no finding on this point and some confusion in the testimony.

After moving in, William expended $2,000 to remedy the bad condition of the premises. He had no agreement concerning the making of these improvements. The agreement concerned only his making the mortgage payments, he testified.

Although William supposed that what he had to pay was the $1,400 mortgage, less whatever Alice already had paid, in fact there were two mortgages on the place, both made in February, 1930, one for $1,400, and the other for $225. Both were at 8% interest.

Alice put further mortgages on the place in 1933 and 1936, adding $984.95 to the indebtedness secured by the property. It was not until January, 1938, after the death of Alice, that the property was cleared of mortgages. William then learned for the first time that additional mortgages had been put on the property after 1930. The original mortgages were held by Union Mortgage and Guaranty Company, and the later mortgages by Union Trust Company. Both companies are referred to herein as 'Union Trust Company.'

Instead of the amount originally contemplated William paid more than $2,900 ($35 per month for seven years).

In addition to the $300 which William had loaned Alice at the time of the death of their mother, William let Alice have more than $1,700, $300 to $400 a year, during the period he was making the mortgage payments. It was because Alice was turning the property over to him that he let her have this money, he testified. When Alice would ask him for money she would remind him that he was going to have the property. Though he insisted in his testimony that he would have been entitled to the property even if he had not let Alice have this money, that would have looked like a hard bargain, he felt. At times he spoke of this money as loaned. He also spoke of it as a 'grant.'

William saw Alice in the hospital shortly before she died. At that time she did not expect to live. He reminded her about the property, and she asked him to prepare papers so that she could 'turn over all these things.' He told her he would bring a notary in the morning, but she died about two or three a. m.

The entire agreement was verbal. William accepted Alice's word, though he must have known she was not trustworthy. He testified that 'probably' she was convicted of larceny some time between 1931 and 1933. She was a heavy drinker, as testified by defendant.

Two of William's witnesses testified to conversations touching upon this matter. One witness testified on direct examination that at a party in 1932 or 1933 the guests were talking about what would happen when they died. Alice was asked: 'Hey, Alice, when you die, who going to take your place?' She answered: 'Oh, no worry. My brother, Willie, take um.' The other witness testified on cross-examination that it was said in his presence that William 'did not need to worry because she had security for him.' It is not clear who said this. The court attributed the statement to Alice. However, the witness had testified on direct that he had discussed money matters with William, not with Alice.

After Alice's death plaintiff retained an attorney who caused William to be appointed administrator. William testified that he told this attorney about the agreement concerning the property. This attorney was disbarred in 1940. William subsequently had other attorneys, and he testified he also told them about the agreement, but no one did anything about establishing his rights until he retained his present attorney. One of William's former...