The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-01-21

of law in cases involving transfer OF t.
tie in land are, a. That the Statute of
Frauds is in the way; (2.), that by COM
mon law rules of evidence, deed cannot
be controlled by parole evidence, if it is
prima facie valid, (S.), that legal forms,
processes and remedies are often made
quate to do full justice between the par
ties, or to make those parties who ought
to be brought in, or to search the con-
science of party by interrogatories, or
to adapt and enforce the remedy accord
ing to the equity of the case; a., that in
regard to land titles it is especially impor-
tant that uniform and equitable rules be
applied with more precision than would
be done by ordinary juries. Juries would
hardly mistake the rules Of evidence con-
corning the genuineness of deed, but
might find great difficulty in correctly APP
pretending and applying the equitable
rules which govern Court of Equity in
setting aside deeds, while errors in their
verdicts would often be hard to detect
from the great difficulty in distinguishing
between the findings of fact and law in
such matters; 81, that case at law is
not case in equity. The distinctions be-
tween Courts of law and equity in regard
to processes, remedies, mode of proof and
trial are such, that they can only be re-
moved by statute. As equity cannot
abridge the constitutional right OF jury
trials by encroaching on the jurisdiction
of Courts of law, SO it cannot be shorn
of its original jurisdiction by Courts of
law adopting equity rules.
have been unable to satisfy myself of
the validity of these objections. (1.) The
objection on the score of the Statute of
Frauds does not apply here, for the Sec
ton in the English section whereby a
parole conveyance of an interest in land,
such as is claimed in this suit, is declared
to convey only an estate at will has not
been enacted, nor has it been adopted, if
it could be. as rule of law. Moreover
it is apparent that the Courts which are
governed by this statute, in cases where
an oral conveyance is relied on, have not
found it an obstacle when it is relied upon
as an estoppel. And besides, it is not
claimed that an estoppel is equivalent to
an absolute transfer by way of sale, but
merely that as against certain individuals
the party estopped cannot use his legal
title. (2) Parole evidence in this case is
not sought TO be used for the purpose of
contradicting deed. BY our custom and
law, royal patents are issued in the name
of the first holder of the land award on
which they are based. The plaintiffs tt
tie by inheritance is shown by parole and
may be met by parole evidence of an es-
toppel The deed under which the defen-
dant holds, although insufficient by law
for the purpose of transferring the plain
tiff's title. and therefore of no avail as a
deed, is not incompetent evidence of the
act of the person who assumed to make
it, against the plaintiff who undertook to
represent that it was made by the true
owner (3.) As for the mode of proof
by dispositions, which is often elsewhere
used in equity, we hear viva voce testi-
mony in equity as well as law. That the
right of examining parties is not dis
tinctive feature of equity jurisdiction is
evident from the fact that equity cases do
not become law cases where statutes have
permitted parties to testify. Ii there are
parties who ought to be brought into
Court who otherwise would be affected
by the legal Judgment, or whose absence
injuriously affects the parties, that fact
when shown might be cause for transfer
ring case from law to equity. And so if
the relief sought could not be granted in
law But no such showing is made, nor
is it claimed that it can bemade in regard
to this case. a. 1t is desirable that land
titles be adjudicated by uniform rules, in
telligently applied. But it is not consist
ent with the dignity or functions of judi
cial tribunals to say that the amount in
controversy, or the nature of the property,
shall affect the rights of litigants. Be-
sides, this case raises a question simply
between the heir and the holder under an
equitable title, and no rights of bona fide
purchasers who have relied on records
intervene. The uncertainty and frequent
capriciousness of jury verdicts exist in
personal as well as in real actions, and if
in the former they do not require equit-
able jurisdiction on equitable pleas, it is
only matter of policy for the legisla-
ture to decide whether the result should
be otherwise in the latter form of actions.
(5.) Perhaps it is fundamental and i'm
portant principle that equity is not shorn
of its jurisdiction, because, as Lord Eden
said, :" a Court of law happens to fall in
love with the same or a similar jurisdic-
tion." Eyre vs. Everitt, Russ. 1872.
But it is plain that Courts of law are be-
coming more and more free from tech
meal rules not based on principle and re-
quisite for the furtherance of justice. If
justice can fully be done at law, there may
be no occasion for equity, although if there
should still remain any radical principles
requiring equity Jurisdiction in any case
in which Court of law may have adopt
ed equitable rules, the jurisdiction of the
equity Courts remains intact Sally VS..
Elmore, 2 Page 400. Wells VS.. PIERCE,
81 n. H. 5l3 Minturn VS.. Farmers Loan
Co. N. Y. 400. The tendency of Courts
of law to adopt rules which afford equit-
able relief is apparent in the cases cited
in the American edition of Smiths Lead
ing Cases, in the notes upon the Duchess
of Kingston's case And such is the ten
dency of statutes giving the same Courts
jurisdiction in law and equity. 1t is GER
tainly desirable to avoid circuity of action.
For Court having law and equity pow
ers to say to party in a suit at law, that
as soon as an equitable defence is set up,
he must go into equity in order to have
the facts found on which his defence