The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-03-10
HAWAIIANGAZE
AN INDEPENDENT JOURNAL,
TO HAWAIIAN PROGRESS.
supreme Court OF the Hawaiian
IsIands-January Term, 1875.
K1AININU Is. K4UWA AND KO4.

| OF the court.
The bill filed July 18th, 1874, alleges
that the plaintiff Is lawfully seized and pos
sessed of piece of land in Koolauloa, Oahu,
described in Award Of the Land Commits
sion No. 37l7.
The plaintiff alleges that he inherited this
estate from one Koo, his father, who died
in the year 1853; that Immediately on his
fathers decease, the plaintiff entered upon
the land and has continued ever since in
open, notorious, peaceable, uninterrupted,
continuous and adverse, exclusive possess
sion and occupancy, taking to his own use
the rents and profits, up to the 5th of JAN
uary, 1874, on which day Kauwa, one Of the
defendants, entered upon a portion of the
land which had been prepared by the plain
tiff for the cultivation of rice, and planted
it with Lalo, which kalo the plaintiff imme-
diately removed; whereupon Kauwa sued
the plaintiff IN the District Court for tres
pass and the Magistrate gave judgment in
favor of the plaintiff
The bill alleges that Koo derived his title
as follows: Koo was the original occupier
of the land; that in 1s45, he orally gave
his sister Kaluahine, MauweIe's wife, life
interest in this land; that in 1S4S Kalua-
hine died, and her husband Mauwele sur
rendered the land again to Koo, and him.
self died in 1913; in 1851, plaintiff, by d.
rection of his father Koo, pointed out the
boundaries of the land to Turner, the gov
eminent surveyor; that in 1853, plaintiff,
by direction of his father went to the Land
Commission and took out the Award No
SLY, and paid the fee Of six dollars; that said
Award was issued in the name of Mauwele
by mistake of the party issuing it, and that
1t has remained in his possession ever since;
that said Kauwa, who claims to be the heir
of Mauwele, has made a deed of said land
to Koa, one Of the defendants; that as one
suit has been brought in regard to this mat
ter and more are threatened by the defend
ant hoa to obtain possession of the land,
and as the Award to Mauwele remains as n
cloud upon the plaintiffs title to this land,
he prays that the deed of Kauwa to Koa
may be delivered up to be cancelled and
that defendants may be enjoined against
bringing any suits at law for the possession
of the land in question.
The answer, in brief, asserts that the
possession is interrupted because that one
Nika lived on the land after Koo's death.
by hauwa's consent; that in 1866 there
was proposition made between plaintiff
and kauwa to exchange the land for a land
of plaintiffs mother-in-law, and. on this. the |
plaintiff lived on the land; that Mauwele
applied for the Award and died in 1851, |
and that the alleged deed from Kauwa to |
koa is only mortgage.
The allegation in the bill that Award |
No. sly was issued to Mauwele by mistake,
is not insisted on in this appeal.
The plaintiffs alleged title is by prescrip-
ton.
The defendants alleged title is inherit
ance from Mauwele, to whom the land was |
awarded, and the Court is asked by the |
plaintiff to adjudge his possession to have
been notorious, exclusive, peaceable and adj
verse for twenty years, and therefore per-
feet title, and to enjoin the defendant from
asserting his title against this.
The jurisdiction of Courts of Equity to
grant injunctions of this character, "is
founded upon the equity of relieving man
from the necessity of bringing action after
action at law for every violation of a COM
non law right, and of finally quieting the
light, after case has received such full
decision as entities man to be protected
against further trials of the right" Kerr's
njunc., p. 225. But before the injunction
an be granted the legal right must be es-
The jurisdiction in respect to titles of
cal estate Is in courts of common law,
which courts of equity should hesitate to
invade; especially so in the case at bar,
where the plaintiffs title is alleged to be
y prescription and this is trayersed by the
nswer, and therefore the decision of the
ase depends upon facts and questions pc
uliarly suitable for trials at law, where
aries can have a jury of the country to
ass upon the facts.
a title by prescription, if well proven, is
good defense at law, and statutes of lin
alton are enacted to make certain the
sngth of time of possession which consti-
ntes such a title
The statute of limitations relied upon bv I
he plaintiff S counsel (Acts of 1870, p. %
entitled San Act limiting the time with !
l which actions may be brought to recover
of land; and as Washburn saws Z
l his Real Property, ? vol, p. 449, "The
.atute of limitations in respect to lands. I,
Derates as the extinguishment of the one, q
Tough not as a gift of the estate to the I
her" n
The operation of this statute would be g
extinguish the remedy of the defendant ?
obtaining possession of the land in ques b
on, unless he brought his action within r
venty years, but 1t does not make gift of 4
lie estate to the plaintiff. =
The text-writers treat prescription as n
plea or defense not as title upon which v
base cause of action in equity. n
Story in his Equity Jurisprudence, 1894, ,
ates the doctrine thus: "a defense cannot CT
set up as the ground for bill in equity b
r an injunction, which has been fully and II
irly tried at law, although it may be the e.
Union of the Court that the defense ought al
have been sustained at law" II
If, however, the plaintiff in this case had ,
ccessfully established this defense in =
urt of law to an action brought BY the p
PENDANT for the possession of the land, pil
would have then some ground for asking q
is Court to enjoin the defendant against U
inging further ike suits. But it is not al
rtain if one suit would be sufficient as y