The Hawaiian gazette., 1872-02-21


Bill in Equity to obtain lot of land in Honolulu,
which the respondent holds under Royal Patent,
and which the complainant claims under the follow
ing state of facts set forth in bis Bill:
MAY %, IS47, deed of partition was made between
VIM H. Davis, Robert G. Davis and Elizabeth Jones,
of certain land which they inherited, which includes
the lot claimed in this suit.
June 8, ls47, the complainant on leaving the
Kingdom, appointed his brother Robert his agent
by Letters of Attorney with power to transact all
business appertaining TO his private estate in the
Hawaiian Islands, to lease land, prosecute and
defend suits, substantiate land claims, appoint a
substitute, compromise claims, but not with express
power to sell or mortgage land, borrow money or
give notes This Letter of Attorney was recorded,
and does not appear TO be revoked.
Nov. G, 1852, Land Commission Awards numbered
4OSl and 1882 were issued to VIM. H. aud Robert
G. Davis respectively for land included within their
shares under said deed of partition.
January TO- 1855, Robert G. Davis borrowed 5000
of B. F. Angel, giving therefor his own and W. II.
Davis joint and several promissory note, with a
power OF sale mortgage the land covered by
said Award No 1852. Robert G. Davis signed both
note and mortgage with his own name and with
VIM. H. Davis name as his attorney.
Feb. 81, 1856, Angel assigned the mortgage and
note to c. Brewer, ID, who foreclosed by Bill in
Equity filed Oct 25, 1856, aud at a sale thereupon
ordered by the Court, took deed Of conveyance
from the Marshal, Feb. 4, 1857.
March Sd, 1857, C. Brewer I'd conveyed the land
to C. Brewer, LIST, by quit claim deed.
Sept. Z, 1857, c. Brewer LIST took out Royal Pa
tent for the land described in said Award No. 4e52,
Dosa, hat ha wa I'd had bepn
issued to him by the Land Commission.
The complainant AYERS that the proceedings in the
decree for the foreclosure the giving of the mort
gage deed and note, and the issuing of the Royal
Patent are all without his knowledge authority,
and that he has in no manner received any benefit
or proceeds from the sale on the note, and that
the Patent was "wrongfully procured"
The respondent demurs for uon-joinder of Angel
and Brewer 2nd, and pleads in bar the Royal Patent
and decree for foreclosure.
c. c. Harris and F. H. Harris for Complainant.
S. H. Phillips and A. F. Judd for Respondent
HARTwELL j:
Parties: Angel and G. Brewer I'd merely re-
leased their interest in the land, giving to their
respective grantees all their knowledge Of the
title 1t is not apparent therefore that their
liability to this respondent is consequent on his
liability to the complainant IN case his title fail ;
on the contrary, it would seem that the doctrine
of cdreat emptor applies to the assignment of
the mortgage and conveyance by quit claim deed.
As joinder Of these parties does not depend
upon the importance of their testimony to the
respondent, for that is available for them but on
the question of their possible liability to him
should the title fail which they undertook to con-
cause for demurrer, Q.)
C0nclusireness Of Patents All the presump-
tions are in favor of a Patent 1t is the highest
evidence of title, and can only be impeached in
Equity on a clear showing Of fraud or mistake in
the issuing of it. There is no hardship in requir-
ing patentee to explain how his Patent on its
face conflicts with an Award by the Land Com
mission, in the false averment that it is based on
a Land Award issued to him which was in fact
issued to another person. 1t is only in judicial
tribunal that rights appearing to be secured
under one Patent or Land Award or Statute,
can be adjusted with conflicting rights appearing
to be secured under another Patent, Award or
Statute, or under the Constitution. The Execu-
tive authority may be misled into giving to one
man Patent of another's land, and clerical mis-
takes are always possible, but it can not revoke
its own acts, and must leave to the Courts to de-
eide On their validity and effect. This was so
decided by this Court in Bishop VS.. Namakaaa
ct alt, 2 Haw., 239, which is precedent govern
ing this point in the present case. So in Laanui
7s. Puohu, Ib. l6l, where the defendant held a
Royal Patent, alleged to have been wrongfully
obtained
This view is sustained by the decisions of the
United States Supreme Court on Patents issued
by the Executive authority, and of the English
Courts on Royal Letters Patent, (2)
Conclusiveuess Of Judgments.-In the absence
of fraud or obvious mistake apparent on the
record judgments inter partes are final on par
ties and privies, if pronounced by Court having
jurisdiction of the cause, the subject matter and
the person sought to be affected thereby, and
errors and irregularities in the proceedings on
which such judgments are based can usually be
reversed only on motions for new trial, bills of
exceptions, writs of error or other defined stat
utory modes. But there is distinction between
a voidable judgment aud void Judgment. The
judgment of a Court having no jurisdiction is
corGn non JUDGE, and void, and can not affect
a person not brought within the jurisdiction of
the Court by actual or substituted notice. 1t is
competent for the Legislature to provide rea-
sonable mode Of substituted notice to defendants
who have left the Kingdom, and ordinarily, judi
ciaI proceedings had after such statutory notice
can not be declared invalid on the ground Of in
sufficient notice.
The complainant AYERS that he had no knowl-
edge of the proceedings had against him. There
is nothing judicially before US concerning the
character of the citation, or to show that there
was any citation. The Statute in force at that
time required notice to be given to " some one
on the premises involved in the controversy"
and by publication in the Poly1esiaa newspa
per for such period as the Court may deem to be
equitable" But in the case Of fraudulent or
wrongful sale by an unauthorized agent, notice to
him Of proceedings in court to decree the sale |
absolute by foreclosure, or notice thereof to the
person placed on the premises, placed there by |
such agent, who was in this case authorized to |
lease, would not be the kind Of substituted no
tice intended BY the Statute; for that would be |
using the Statutes and the Courts as instruments /
tn eFraetuafa m arnarant f.ar5 - a. ,-.i;I..a