The Hawaiian gazette., 1874-07-29
HAWAIIANGAZETTE
supreme Court of the Hawaiian
Islands.
Isaac Hart KapuiGi rs. Ke1gpu (,0).

Fourth JUDICIAL circuit, Dy consent
This is an action of ejectment to recover
small piece Of land situated at KoIoa, Island o
Kauai. The land originally belonged to one Ka
puniai. who had an award for it.
The plaintiff was the adopted son of the sale
Kapuniai. who by his will left certain property
to bis wife, F. Kewao, and made the plaintiff hi;
residuary legatee.
This will was executed, End OF October, 1857
and was proven 22d of September. 1858. and the
plaintiff says that the property is his by virtue OIL
that will
The defendant is the widow of one Paihewa
who was cousin Of the aforesaid Kapuniai, or
as the Hawnans call him. brother. 1t is in evil
dence that they lived together in brotherly man.
ner. and it is alleged that Kapunia gave to Pal.
hewa the land in question and executed for it q
deed in consideration of love and affection in the
presence Of two witnesses, who are since dead, and
the deed has been lost and 20 record made of it.
Regarding the validity of such a defence, if the
lost deed can be proven, there can be question,
and the whole question before this Court is whether
the deed is so proven. Thelaw is uudoubted that it
viii be necessary that there should be presented
clear proof of the execution OF the deed and proof
of its contents sufficient to enable the Court to de-
termine the character of the instrument This prin-
cpe so clear as not TO need the citation of any
authority.
The frequency with which the Hawaiian occupies
the land of near relative or friend and builds his
house upon without having any other right in the
land than mere permssive occupancy, takes away
from such occupancy the significance that it might
have in other communities, and at the same time
imposes upon the Court the duty of extraordinary
caution, lest temptation should be holden out to
supply testimony many years after the death of the
owner to establish title in the land when the right
of occupancy was only permissive one The loss
of papers in this case is most remarkable They
lost their deed and they lost both their leases, and
appear to have mislaid theirlan commission award
and this misfortune to have attached equally
to plaintiff and defendant for the plaintiff has lost
bis ct ton off the file. So likewise the possession
of papers, among intimate relations in this country
would furnish very little evidence to support the
presumption that they were accompanied by a deed
which was Afterwards lost. Again, the defendant
says that the fact that Kapuniai did not mention in
his will the land in question raises presumption in
her favor. This can hardly be SO, because he only
mentions the details of the property which he be-
queathed to his wife and left the remainder to this
plaintiff without partcularizng any property what
soever. So that the case must be decided upon the
weight and efficacy of the positive testimony given
to support the existence of the deed and to describe
its contents. The land commission award upon
which the title of this land rests is not placed be-
fore the Court, but we have taken pains TO sup
ply that deficiency by a copy 1t will be found by
reference TO it that the award is for two divisions of
land, and the first witness Kahananu says that the
deed was for the Iii of Wailaau, which would convey
the land in its entirety, much of it Kapuniai
owned Testimony page seeond) The second wit
ness, Kalasu states 1t was a deed of the land of
Wailaau; this again would carry the whole of Wal
laau; this again would carry the whole of Waiaau
or both the apanas. Now the testimony Of James |
Munden is in effect that he had occasion 10 lease
piece OF land towards the road, as close to the /
road as he could getit he went to Pahewa for it,
and Paihewa said it belonged to Isaac Hart This
is sought to be explained by the counsel at bar by
showing that the land on which the house stands is
not the road and he supposes therefore that II
was another piece Of land But the only judgment
the Court could give would be, If judgment should
be for defendant, that deed had been lost convey
ing the whole of Wailsau y; therefore, il Paihewa
did not own that piece Of Wailaau by the force of
the deed now set up, he did not own any, or, in
other words, If the judgment should be that he
owned the piece Of land on which the house now
stands, it would likewise be 10y the testimony that
be owned all the rest. The witness Kaanaaua SAYS
that the deed called for the kucsua of wailaau and
did not mention the number of acres, but adds that
the deed did not comprise the whole; the question
arises then how much did it compriseg Again, If
the possession of the land commission award by
Paihewa would be evidence of his title in the first
piece of land, it would be likewise evidence of his
title in the second piece which is not claimed
So it seems very clear that the operative part Of
he deed is not testified to with sufficient clearness
ind certainty to enable the Court to make judy
neut 1t would therefore appear unnecessary to {
Examine whether not there is sufficient evidence
o establish the loss OF the deed, yet we have
bought it advisable to make few observations on
hat subject. ;
BY the testimony it is made evident that Pafhewa
vas a man of education; he was secretary to the
GOVERNOR and knew the law. II so, he must have E
,nown :he necessity of putting his deed on record;
or il is claimed that the deed was given in 1872 and
vas in existence upto Kapunias death eight
ears. Now the law in force at that time was as
ollows-tsee Vol. LIST, page s4s, Section ~; "Ar
eeds Of landed property shall be recorded within
hirty days after the execution thereof" Section
III; mo Court OF Justice shall take judicial cog. 81
lance of any instrument required by law TO be re- c.
orded which shall be not certified so to have been
J the Registrar Of Conveyances." This raises a Il
reat improbabiity that man of Paihewas educa- n
on aud knowledge of business would allow such "
eed as is commended he had, 10 remain unrecord- d
/ and though it may be fact that he did So vet p
he testimony to overcome that improbability must W
E very clear In reviewing the testimony one is h,
ruck with the minuteness with which the witness 20
remember mmaterial facts which occurred twenty n,
before-as for instance the color of the paper
hich witness slgned first; If it did rain or did not
in; the remarks of Puniai's wife THAT she
ought It was her land "a that it was in the after.
ION of the day: that Kapuniai was sitting outside
the door and Kewalo his wife was inside; all of
hch may be true but in most minds it goes very
rongly 10 discredit the testimony; though we all t
low thatpeople Of the description OF the mind of N
e witnesses In this case are very apt to think It
cessary TO reply definitely to every question. The o
appears to have been severe, and
accurately taken. bas shaken the two principal
theses to considerable degree-as for instance oi
lnaau says at one time the deed was given before
smallpox, and another time before the measles an
is true the measles were before the small pox but inc
idea to be conveyed is that the smallpox was an
och and consequently when he says before the Op