Oahu Railway & Land Co. v. Kaili

22 Haw. 673, 1915 Haw. LEXIS 33

• Court: Hawaii Supreme Court
• Decided: July 27, 1915
• Status: Published

Opinions

OPINION OP THE COURT BY

ROBERTSON, C.J.

(Quarles, J., dissenting.)

This is an action of ejectment in which the plaintiff seeks to recover the possession of a parcel of land containing an area of 3.27 acres, situate at Hononliuli, city and county of Honolulu. The plaintiff proved the paper title to the laud showing title in itself under a lease for a term of fifty years commencing J anuary 1, 1890, made by J ames Campbell, as lessor, to B. E. Dillingham, as lessee, dated November 19, 1889, and assigned to it on December 12, 1889. The assignment reserved certain portions of the demised premises, including the land in dispute, the portions reserved having been released to the plaintiff by quitclaim deed dated March 23, 1892. The defense was adverse possession based on and following an alleged parol exchange of lands between Campbell and a woman named Kamai in 1878 or 1879. Kamai married the defendant in 1908, and died in 1912 leaving the defendant as her sole surviving heir. The case was tried jury waived and decided in favor of the defendant. The plaintiff brings exceptions.

Exception 2. The defendant was allowed to testify over the objection of the plaintiff that Kamai “told me that she made an exchange with Mr. James Campbell in which she got this land now intdispute.” The testimony was admitted upon the theory that it was within the well established exception to the rule against hearsay in favor of res gestae declarations. It is settled in this Territory, in accordance with the rule in most of the States, that the declarations of a person in possession of land as to the nature of his claim go to characterize’ his possession, are part of the res gestae, and tend to prove the hostility of claim necessary to an adverse holding. Carter v. Lulia, 16 Haw. 630; Makekau v. Kane, 20 Haw. 203. But it is also well settled that declarations which are but narratives of past occurrences are not admissible as part of the res gestae. 16 Cyc. 1258; 1 Greenleaf on Evidence, Sec. 110. Declarations which are but- statements as to the source of claim or manner of acquiring possession of land are narrations of past transactions and are not to be considered as merely characterizing the possession and, therefore, not of the res gestae. 24 A. & E. Enc. Law (2nd ed.) 691; Daffron v. Crump, 69 Ala. 77, 80; Ray v. Jackson, 7 So. (Ala.) 747; Whitaker v. Whitaker, 157 Mo. 342, 354; Swope v. Ward, 185 Mo. 316, 329; Samaha v. Mason, 27 App. Cas. (D. C.) 470, 477; Murray v. Cone, 26 Ia. 276; Crawford v. Crawford, 60 Kan. 126; Feig v. Meyers, 102 Pa. St. 10, 16. And see Makekau v. Kane, supra. Accordingly it was held in Wilkinson v. Bottoms, 56 So. (Ala.) 948, that evidence of a declaration that there had been a parol exchange of lands was inadmissible. Though there are cases in which a contrary view has been taken, the application of the rule in accordance with the cases cited would seem to be the logical and consistent one. It is not at all necessary, in establishing a title by adverse possession, to prove that declarations were made by the person or persons in possession of the land, and no good reason is perceived why the rule as to res gestae should be relaxed or extended in cases of this kind. This exception is sustained. '

Exceptions 3, 4 and 5. These relate to the admission in evidence of certain leases of portions of the land in dispute claimed to have been made by Kamai, as lessor, and offered evidently for the purpose of showing acts of ownership and claim of title by Kamai. The plaintiff objected to the admission of the documents because they were not stamped. The statute (R. L. 1915, Sec. 1352)^ provides that “No instrument requiring to be stamped shall be * * * of any validity in any court of this Territory unless the same shall be properly stamped.” Leases are required to be stamped. It is the duty of the trial judges to heed and give effect to this mandate of the legislature. This court probably would not reverse a judgment of the circuit court because of the admission in evidence of an unstamped instrument, which the law requires to be stamped, where it had not been used as a basis for any finding of fact or conclusion of law; but here, the record shows, the leases in question were considered by the court and entered into its conclusion that the defense of adverse possession had been made out. Thus they -were given validity in violation of the statute. Under the statute the leases were not evidence, and the court’s considering them as such was error. This court has not heretofore been called upon to construe or apply the statute, though in the case of Makainai v. Goo Wan Hoy, 14 Haw. 607, which involved the federal war revenue tax of 1898, the refusal of the trial court to admit in evidence certain promissory notes which were not properly stamped was sustained. These exceptions are sustained.

Exceptions 7 and 10 relate to the admission of the testimony of the defendant and another witness to the effect that Kamai, while in possession of the land in dispute, stated to them that the land was hers. The testimony was properly admitted as declarations characterizing the possession, and of the res gestae. Carter v. Lulia, supra. It is no objection to the admissibility of such declarations that they were not shown to have been made before the expiration of the statutory period of limitation. Cannon v. Stockmon, 36 Cal. 535, 541. These exceptions are overruled.

Exceptions 20 and 21, which were to the decision and judgment on the grounds that they were contrary to the law and the evidence, and which involve also exceptions 6, 8, 9, 11, 12, 13, 14 and 15, relating to the admission of testimony as to the leasing of the land and the payment of taxes by ICamai, may be considered together. On the question of the defendant’s claim of title by adverse possession the court, in sustaining it, took into consideration, besides the facts of open and notorious possession of the land by Kamai for more than twenty years, which was the period of limitation at the time referred to, and the making of improvements by her, the facts that she “claimed she got it by an exchange with Campbell,” that “she paid the taxes — her husband says that she paid the taxes all the time,” that “she did bring in a few (tax) receipts,” and that “she leased the land frequently.”

The contention of counsel for the plaintiff that where there is no direct evidence that the possession of one of the land of another was hostile in its inception it must be presumed to have been in subordination to the title of the true owner is not sustained. Actual, open, exclusive and continuous possession of land by the claimant, apparently as owner, is evidence of a hostile entry and claim. Kapiolani Estate v. Cleghorn, 14 Haw. 330, 337. The rule was thus stated in the ease of Albertina v. Kapiolani Estate, 14 Haw. 321, 325, “While it is true that the burden is on the party affirming the existence of adverse possession to show that his possession is in fact adverse, it is also true that where one is shown to have been for the statutory period in actual, open, notorious, continuous and exclusive possession, apparently as owner, and such possession is unexplained, either by showing it was under a lease from, or other contract with or otherwise by permission of the true owner, the presumption is that such possession was hostile.”

But, as above pointed out, the evidence of Kamai’s declaration that she had acquired the land through an exchange with Campbell was improperly admitted, and there was no other evidence of such an exchange. The declaration should not have been regarded by the court as tending to support the defendant’s claim. The fact that a parol exchange had been made, if it was a fact, could have been proven by proper evidence, but not by a hearsay statement. Payment of taxes may be shown in support of a claim of title to land by adverse possession. Paulo v. Malo, 6 Haw. 390. And we assume that the payment of taxes may be testified to by any one cognizant of the facts. But over the objection of the plaintiff the defendant was allowed to testify that Kamai paid taxes on the land though it did not appear that he was cognizant of the facts, and he admitted that he did not know how long or how often she paid them. The tax records which were put in evidence did not show that Kamai had been assessed for taxes on the land in dispute, and there was evidence in the case tending to show that she owned other land. The defendant did not testify, as the trial court found he did, that Kamai “paid the taxes all the time.” No receipts for taxes paid were produced. The finding of fact that Kamai paid the taxes on this land was not supported by the evidence. The leases made by Kamai, above referred to, bore dates in the years 1908, 1911 and 1912, and, pursuant to a provision contained in a lease made between the plaintiff and Kamai in 1902 (which will be adverted to presently) the rents were collected from the tenants by the plaintiff, one-half thereof being retained by it as rental payable by Kamai under her lease, the other half being paid over to Kamai. These facts, which were undisputed, did not support the finding made by the trial court that “the lessees are all in possession acting under her as the owner of the land.” The defendant testified, over objection, that Kamai made some leases prior to those allowed in evidence, bnt it did not appear when they were made or whether the plaintiff collected and shared the rents. Whether the fact that Kamai had made other leases would tend to support the contention that her possession was under claim of title in fee in herself would depend upon the circumstances as to the time when and the conditions under which they were made. The documents were said to have been lost and their contents were not before the court. The hare fact that Kamai had made leases was therefore irrelevant. As above stated, the court based its decision partly upon the fact that Kamai had made leases of the land.

In a jury waived case the improper admission of evidence which does not appear to have been relied on by the trial court in arriving at its conclusion, the decision being amply supported by other evidence, will not ordinarily require the reversal of the judgment. Aiona v. Ponahawai Coffee Co., 20 Haw. 724, 728. Bnt reversible error appears where, as here, the decision of the court was based partly upon assumed facts of which there was no .evidence in the case or which were attempted to be shown by evidence improperly admitted over objection, and the evidence on the main issue was conflicting.

The plaintiff introduced in evidence in rebuttal a lease of the land in dispute from the plaintiff to Kamai dated December 29, 1902, for the term of her natural life. The circuit court refused to consider it as evidence in the case, holding that as the statute had previously run in Kamai’s favor, it was void for want of consideration, and said that if necessary it would hold it “void for fraud on the part of Yon Holt,” the plaintiff’s agent. There was no evidence of fraud on the part of the agent of the plaintiff who negotiated the lease in its behalf. The rule is that while a recognition of title of the true owner by the one who has acquired title to land by adverse possession upon the completion of the statutory period will not alone defeat the title so acquired, “such recognition is evidence to be considered in determining whether in fact the prior possession of the adverse claimant was in fact adverse or a possession in subordination to the title of the true owner.” 2 C. J. 102; Sage v. Rudnick, 67 Minn. 362; Walling v. Eggers, 104 S. W. (Ky.) 360; Barrett v. McKinney, 93 S. W. (Tex.) 240. The court below erred in not considering the lease in question in that connection at least. These exceptions are sustained.

Counsel point out that there was evidence in the case given hy Von' Holt, and uncontradicted by any other evidence, that at a time when the plaintiff contemplated using this land for its own purposes, Kamai had asked and was granted permission to continue to live on the land and to rent to others a portion of it which she did not need for her own use, and they contend that she thereby recognized the superior title. Continuity of possession is, of course, one of the essential requirements in a claim of adverse possession. Leialoha v. Wolter, 21 Haw. 624. And “Interruption of the continuity necessary to acquire title by prescription occurs when the adverse claimant recognizes the title of the disseizee.” 2 C. J. 101; Campau v. Lafferty, 43 Mich. 429; Olson v. Burk, 94 Minn. 456; Williams v. Scott, 122 N. C. 545; McMahill v. Torrence, 163 Ill. 277; Paton v. Robinson, 81 Conn. 547, 551; Browneller v. Wells, 109 Iowa 230; Jackson v. Cuerdon, 2 Johns. Cas. 353. But the terms of the alleged arrangement, the time when it was made, whether it amounted to a recognition of title, and the authority of Von Holt in the premises (for it seems as though the title was in Dillingham at the time) were left in much uncertainty. The witness was not closely examined on the subject. If there were nothing else in the case requiring a reversal the judgment could not be disturbed on this point.

Exceptions 17 and 18, to the “oral” decision of the court, and exception 19, to the overruling of a motion for a new trial which was made before the written decision was filed, present nothing for the consideration of this court. See Nahaolelua v. Heen, 20 Haw. 613, 616.

A. M. Cristy (Frear, Prosser, Anderson & Marx on the brief) for plaintiff. N. W. Aluli {E. K. Aiu with him on the brief) for defendant.

The remaining exceptions require no comment. They are overruled.

The decision and judgment of the circuit court are vacated and set aside, and a new trial is granted. Case remanded.