Kaaihue v. Crabbe

3 Haw. 768

• Court: Hawaii Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinions

Opinion of a majority of the Court, delivered by

Judd, J.

This is an action of ejectment for a lot of land on the Nuuanu valley road, Honolulu, which the plaintiffs claim as being the legal representatives of Kalamau, deceased, to whom the land was awarded by Land Commission Award, No. 4700, B. The award is dated April 1st, 1850, and the survey accompanying it March 5th, 1850, to E. Keo for Kalamau.

The plaintiff Kaaihue claims that he is the purchaser of the interest of one Oopa, the brother of Kalamau, and he shows a deed dated March 3d, 1875, from Kaono, the widow and devisee of Oopa (now deceased,) by will admitted to probate April 30th, 1875, and he avers that he is entitled to the possession of this land upon the further claim that Oopa had a title to it by prescription for 20 years previous to the 14th March, 1873.

The defendant Mrs. Crabbe, claims as devisee of Oapt. John Meek deceased, under will duly admitted to probate, and that the said land was conveyed by the woman Kalamau to Oapt. Meek by deed dated the 26th February, 1850, and further that Oopa’s occupancy of the land was as a tenant of Meek’s and was not adverse.

A suit was brought by Oapt. Meek in December, 1872, against the said Oopa in the Police Court of Honolulu, under Article LI. of the Civil Code, claiming the possession of the land from Oopa as his tenant by parole, after a ten days notice to quit. The Police Justice found that there was tenancy and issued a writ of possession which was finally executed by ousting Oopa on the 14th March, 1873.

An effort was made to perfect the appeal which the magistrate refused to allow, and proceedings were had by mandamus to compel the appeal, but it was finally refused by the Supreme Court in Banco, it being found by the Court that the appeal was not perfected in time. ■

The plaintiff's then commenced an action of ejectment against Oapt. Meek which was partially heard at the April term, 1873. This action was discontinued upon a compromise being agreed upon between the parties, which however was never completely executed. Meanwhile Meek and Oopa deceased, and the present action was brought at the October term, 1875. It came on to be heard at the January term, 1876, before a mixed jury. The first jury disagreed and were discharged. The second trial resulted in a unanimous verdict for the plaintiff's.

We deem this history of the ease to be necessary to its complete understanding.

A motion for a nejv trial is made on the ground that the verdict of the jury was contrary to the law and the evidence and the instructions of the Court, and because the Court erred in refusing the instructions asked for by the defendants, and in giving those asked for by the plaintiffs, and also because they have discovered new evidence. This last ground the Court find no difficulty in disposing of, as it appears quite clearly that these witnesses whose testimony is alleged to be newly discovered were accessible to the defendants at the trial and should have been produced then.

Let us now consider whether the verdict is contrary to the evidence.

The record shows that a deed was produced shown to have come from the possession of Meek, stamped with the old stamp in use many years ago.

As this is the most important feature in this case, we recite the deed in full. It is as follows:

“quitclaim.”

“Know all men by these presents, that I Kalamau, of Honolulu, Oahu, Hawaiian Islands, and wife of Keo, late deceased, for and in consideration of the sum of one hundred and fifty dollars, to me in hand paid by John Meek, of Honolulu, Oahu, Hawaiian Islands, the receipt whereof I hereby acknowledge, have bargained, sold and quit claimed, and by these presents do bargain, sell and quit claim unto the said John Meek, and to his heirs and assigns for ever, all my right, title, interest, estate, claim and demand, both at law and in equity, and as well in possession as in expectancy of, in and to all that certain piece or parcel of land situated contiguous to the Nuuanu valley road, and immediately adjoining the first stone bridge, out of the village of Honolulu, over which bridge said road passes, which property is known as the property and residence of my aforesaid husband Keo, late deceased, with all and singular the hereditaments and appurtenances thereunto belonging. In witness whereof, I have hereunto set my hand and seal this 26th day of February, in the year one thousand eight hundred and fifty.

“Kalamau, [l. s.]

“ Sealed and delivered in presence of

“John R. Jasper.”

Testimony was adduced to show that the signature of John R. Jasper, the subscribing witness, who is dead, was genuine, and Mr. Dowsett also swore that he knew all the parties, Keo, Kalamau, and Capt. Meek, and was acquainted with his transactions, that he knew the signature and handwriting of Kalamau, and that her signature to this deed was genuine.

It was urged against this deed that it was in the English language, and Kalamau being a Hawaiian the inference was drawn that she did not understand its contents, there being no certificate on the deed that it was translated to her.

We hold that a grantor is presumed to have known the contents of the deed he has executed unless the contrary be affirmatively shown. 2 Washburn, R. P. 576, Kimball vs. Eaton, 8 N. H. 391.

The burden of proof of want of knowledge of the contents of the deed was on the plaintiffs, and they adduced no testimony on this point. This Court must continue to hold parties to be prima facie responsible for their deeds. See Kaopua et al. vs. Keelikolani, July term, 1875.

It is further urged that the fact that the deed is not acknowledged or recorded, rebuts the presumption that it was executed and delivered.

But it is clear that this deed was delivered. The fact that it came from the grantee’s possession presumes delivery.

“If a deed is found in the grantee’s hands, a delivery and acceptance is always presumed.”

2 Washburn, R. P., 581, and many cases there cited. Moreover, the witness Jasper attests that it was “ sealed and delivered.”

“Where a deed appears to have been duly signed and sealed and is attested, the delivery will be inferred to have taken place.”

Burling vs. Paterson, 9 Carr and P., 570. Where the attestation clause was the same as in this case “ sealed and delivered,” Lord Eldon said “there would be a miscarriage in a judge directing a jury not to presume that the deed was signed in the presence of the same witnesses as it professed tobe.” <

McQueen vs. Farquhar, 11 Vesey, 478.

But it is said that the statute of registration in force at the date of this deed, forbidding a deed not acknowledged" or recorded being offered in evidence, has the effect of rebutting the presumption that the deed was signed and delivered. The statute reads:

S. 7 Statute, 1846. “All deeds of landed property and leases for a longer period than one year, however executed, all releases of dower, and all mortgages or other pledge of real estate in security for the payment of money, all deeds and declarations of trust of real property and all evidences of interest in the same shall be recorded with the registrar of conveyances within thirty days after the execution thereof, in default of which no such document shall be valid against another document conveying the same right or interest subsequently executed, but previously acknowledged and recorded.”

Bection 9. “No court of justice shall take judicial cogni-' zance of any instrument required by law to be recorded, which shall not be certified so to have been by the registrar of conveyances.”

A new Act on the subject of registration, substantially the same as in the Civil Code, was passed by the Legislature, 27th July, 1852, repealing’ the law above quoted. So, whatever effect this law might have had in 1850, at the time this deed is dated, in preventing such a document from being put in evidence, it had no effect at the time of the suit, for the law was repealed.

But we do not understand that the non-record of a deed, has by the Act of 1846, any further effect than to prevent courts of justice from taking judicial .cognizance of it. In other words it does not make the deed a nullity, though it would seem that the jury so regarded it. The Legislature deemed it advisable that deeds of landed property should be recorded, and the law requiring this to be done enacted that in default of this record no such unrecorded document should be valid against another document conveying the same right or interest subsequently executed, but previously acknowledged and recorded, and as a further penalty no court of justice was to take judicial cognizance of such an instrument.

In 2d Washburn, pp. 590-1, we find it laid down that “the purposes of this record are chiefly to give notice to all persons having occasion to ascertain whether there has been any prior conveyance or incumbrance of any real estate; and when it is made it becomes constructively a notice and as effectual in law as if personally given to the party to be affected by it. It may therefore be stated in general and nearly unqualified terms, that between the parties to the deed, or the heirs or devisees of the grantor and the grantee, and those claiming under him, the validity of the deed is not affected by the want of record.”

No direct evidence was offered by the plaintiff to impeach this deed, and we are unable to see how any of the circumstances above referred to can have any weight in law in invalidating it.

We fully recognize the principle so frequently reiterated in this Court, that a verdict will not be set aside merely when the Court would have arrived at a differrent conclusion from the jury; but in this case the deed does not seem to us to be impeached by the circumstances above referred to.

But it is said that as there was evidence of an adverse occupancy by Oopa for 20 years and over previous to March, 1873, the jury might have based their verdict upon this in favor of the plaintiff’s title, even though that they found that the deed was well proven, and as the verdict is a general one for the plaintiff', we cannot tell upon which ground they found for the plaintiff’.

We again quote from 2 Washburne, p. 490, as expressing our view as to what instructions should be given to the jury in the matter of title by prescription.

“ The question whether the possession is hostile or adverse is one partly of law and partly of fact.

“ Whether the possession in fact is adverse, or is under the owner’s title is one for the jury, with this limitation that the burden of showing the possession to have been adverse is upon the party alleging it. But what constitutes an adverse possession, and what evidence of its being such is sufficient, are questions of law for the Court. As the possession derives its character from the intent with which it was taken and is held, it is competent to show by the declarations of the occu■pant made during the occupancy that he did not hold adversely. Where, therefore, one enters in subserviency to the title of the real owner, there must be a clear, positive and continued disclaimer and disavowal of the title under which he entered, aud an assertion of an adverse right brought home to the owner, in order to lay a foundation for the operation of the statute of limitations.”

The mere possession, then, of Oopa, however long continued, would give him no title, unless accompanied with a claim of right, and a distinct disavowal of Meek’s title to the land.

The burden, then, was on Oopa to prove that his possession was adverse, and evidence that Captain Meek had the land assessed to him and that he paid the taxes on it, that he exercised acts of ownership over it by putting up fences and selling portions of it, by dealing with the government with respect to taking a portion of it for widening the road, should have been allowed to go to the jury as evidence tending to show that Oopa’s possession was subordinate to Meek’s and was not adverse. To the same effect would also be evidence of surveys of this land made at John Meek’s instance, and of royal patents of adjoining lands describing the land in question as Meek’s land. This would not of course show that it “was Meek’s land,” but it would tend to show that Oopa’s possession was not so notoriously adverse to Meek’s as to raise the presumption that he was aware of Oopa’s claim.

As regards possession of the original awards and surveys or what are often called “muniments of title,” we do not attach much weight to them, as the law makes certified copies equally valuable as evidence; but such testimony is not irrelevant, and unless explained was entitled to go to the jury as strengthening the evidence of the delivery of the deed under the award.

It seems to have been lost sight of on the trial that the possession of Oopa if found to be adverse could only inure to the benefit of the plaintiff Kaaihue. The other plaintiffs must stand or fa¡ll by the failure or otherwise of the deed of Kalamau to Meek, for it is not claimed that they ever had the actual possession of the land.

One point remains to be settled, the effect of the judgment of the Police Court of 1873. It is claimed for this judgment that as the Police Court has jurisdiction under Article 51 of the Civil Code to try actions for the possession of land between landlord and tenant, the fact of the tenancy of Oopa under Meek as found by this Court imparts verity and cannot be contradicted; that is, the question of tenancy as between the parties and their privies was finally settled by the Police Court.

A careful examination of the statute leads us to the conciaslon that the Police Court could only have jurisdiction in cases where the relation of landlord and tenant confessedly-existed, the main question for the Court being the facts of forfeiture for non-payment of rent or breach of covenants, or expiry, if by parole after due notice to quit.

As the fact whether there was any tenancy at all was disputed in that Court, the judgment and its execution by writ of possession goes no further than to interrupt the statute of limitations.

It is to be regretted that this litigation has been so protracted, and the Court is well aware of the difficulties that have stood in the way of a speedy settlement of this case owing to the death of some of the parties, changes in the organization of the Court, and of the counsel engaged. But, feeling as we do, that full justice has not yet been done, we have come to the conclusion that the verdict should be set aside and a new trial granted, and we have thought it necessary-to touch upon some of the questions of law which are involved, although the bill of exceptions raising them does not show that the points were duly excepted to at the trial.