The Hawaiian gazette., 1875-04-07
ELIZABETH KAUWA, otherwise ELIZA BETH
KAUTEA LIPOA, By JOHN D. ROBINSON,
HER GUARDIAN, as JAMES l. DOW.
SETT And OTHERS

In Banco, before HARRIS and JUDD, j..
Mr. Justice HARRIS delivered the opin-
ion of the Court.
This case came on for hearing at the
last October Term when evidence was in
troduced ON behalf of the plaintiff tending
to show that Madison Lipoa and Julia Moe
MALE were the heirs of Lupe, the former
owner of the land in dispute in this action,
and that the plaintiff was entitled thereto
by virtue of the will of the said Madison
Lipoa and of conveyance from the said
Julia Moemalie, and that the several de-
PENDANTS were in possession of the said
land and evidence was also had on behalf
of the defendants, and it was admitted on
behalf of the plaintiff, that the several
defendants, Henry Marsh, A. J. Kinney,
Virgil Thompson, w. G. Woolsey, Ailo-
loalii * }, Augustine Enos and Kepahoni,
were in possession of portions of the said
land, and that they claimed to be entitled
thereto by virtue of three several warran-
ty deeds dated respectively the Sth day of
July, 1859, from the said Madison Lipoa to
James /. Dowsett, Leonard Mitchell and
others, and Kapono (kJ; and the said de-
PENDANTS also put in evidence an order
made by the Hon. G. NJ. Robertson, the
then First Associate Justice of this Court,
sitting in probate, dated the 10th day of
September, 1858, authorizing the said
Madison Lipoa, as the administrator of the
estate of the said Lupe, to sell part of
the land in question by public auction to
pay the said intestate's debts"
1t does not appear from the record that
there was any confirmation of sale by the
Court subsequent to the land being offer
ed for sale, and the Court being asked to
charge that the deed was not good for
want of confirmation of the sale, by the
Court, declined so to do; but instructed
the jury that the deed would be good
without any express confirmation by the
Court subsequently. The statute does
not require any such confirmation, and
the order of Court, which is exhibited to
the Court, contains no direction that the
sale should be reported for confirmation
before the deed should be given. And,
moreover, 1t does not appear to have been
the practice of the Court at that time to
have a special sitting for the confirmation
u SAWS az al binOo, anu Vic dutuOIibl W
sell being shown and a deed subsequently,
1t is to be presumed that all the other in
tervening steps were properly made. And
we therefore think that the instructions of
the Court to the jury in this respect were
correct.
But in arguing these exceptions, it was
urged that the deed to which reference
was had, did not on its face show that the
sale was made by Lipoa as administrator,
and in consequence of the order of Court;
but that it appears that the deed was
made rather as the sole heir to Lupe,
which he was not, for his sister was CO.
heir with him.
By referring to the exceptions them
selves, it does not appear that this point
is raised by them or that the Judge was
asked to instruct the jury on that point
and therefore this point cannot be taken
into consideration.
We understand the force of the judges
instructions regarding Dowsett's fence
(Which are certified up) to be, that it was