The Hawaiian gazette., 1875-08-25
HAWAIIANGAZETTE
AN INDEPENDENT JOURNAL,
DEVOTED TO HAWAIIAN PROGRESS.
Supreme Court OF the Hawaiian Is
Innds--ApriI Term. 1873.

Mamie ct al. VS.. Namea ct al.-Motion in
arrest of judgment
Plaintiffs declaration states that they
complain of defendants, that they have
uniusily and contrary TO law and the
rights of the plaintiffs entered upon and
taken into their possession and converted
to their use and occupation q certain par
eel of land situated at Waianae, Oahu,
the land described in Royal Patent, No
$50 (metes and bounds given) granted to
Hoewaa, to the damage ofthe plaintiffs in
the sum of $500.
That Hoewaa conveyed the land to Imi-
lei by deed dated 2lst August, 1865, and
recorded, and THAI the said land is now
devised by Imilei by will, duly admitted
to Probate, one halt to kamahalo, and one
half to Mamie. There is q statement that
Kamahalo has died and who her heirs ut
law are. 1t prays for restitution of pro
perry and damages. Verdict was returned
Tor the plaintiffs with Sl25 damages.
\ motion Is made by defendants in ar
rest of judgment, on the ground, that,
the plaintiffs declaration does not allege
the parcel of land in question to be the
property OF the plaintiffs or that they had
at the time of the commencement of this
action any estate, interest or title in or to
such land.
Defendants counsel contend that in an
action to recover specific real property,
the petition for process should state the
kind of title claimed by plaintiffs, and
that, though verdict cures the statement
of a title effectively set forth, it will not
cure q total defect of title.
Plaintiffs counsel aver that the title is
sufficiently stated in the declaration.
A. 5. Hartwell for plaintiffs
(. Preston and Mahelona for defendants.
By THE CoURT:
The leading authority on this question
Is Rushton VS.. Aspinall, ! Smiths Lead
ing Cases, 3S4.
This case was an action against an in
dorser OF bill of exchange: the declara-
ton did not allege n demand and refusal
by the acceptor on the day when the note
was payable.
Lord Mansfield held that this defect
was not cured by verdict. He says:
- The answer was, that after verdict, it
must be presumed that those facts were
proved at the trial-and our wishes
strongly inclined us to support the judg-
ment if we could but in looking into the
cases, we find the rule to be, that, where
the plaintiff has stated his title or ground
of action, effectively or inaccurately, be-
cause, to entitle him to recover, all cir
cumStauces necessary, in form or sub
stance, to complete the title so imper-
fectly stated, must be proved at the trial,
it Is fair presumption after a verdict,
that they were proved; but where the
plaintiff totally omits to state his title or
cause Of action, it need not be proved at
the trial, and therefore, there is no room
for presumption"
The Statute form for petitions like the
one At bar prescribes that the kind of title
to the land claimed by plaintiff be stated,
and, | regard an averment of title in such
an action to be necessary.
In the complaint before us there is no
distinct allegation that the property in
question Is claimed by the plaintiffs, or
that the plaintiffs have any title or inter
est therein, and this was good cause for
special demurrer If, however, the title
can be implied from the allegations made,
the verdict cures the omission.
The rule oflaw," says nlghman, c. j.,
Z" is, that where the declaration contains a
substantial cause of action, it shall be
aided by verdict" Miles vs.. Oldfeld, 4
Yeates, 1923; Schlosser VS.. Brown, II S.
s. R, $50.
''These defects or omissions in pleadings
which are cured by the verdict are those
necessary circumstances which are implied
by law, and which invariably follow from
the substantial fact charged" Bartlett
vs. Crozier, Il Johns, 4S9, Kent, Chan
cellor.
In the declaration in this case we have
an allegation of grant by royal patent
from the King to Hoewaa: the legal pre-.
sumption of law from this is, that, unless
the contrary be shown, it was an estate
in fee simple that was so granted.
Next we have an allegation of con-
veyance of the said land by deed of the
said Hoewaa to Imilei; the legal presump-
ton here, Is that it was conveyed in fec
Then follows an averment that the land
was devised by viii of Imilei, one half to
Kamahalo and one half to Mamie: and the
law presumes that they are tenants in
common in fee. So of the allegation that
Kailianu aud KahiG are heirs at law of
said Kamahalo, dying intestate, the law
presumes their title to be the same as that
of their ancestor Kamahalo
As it therefore can be implied from the
declaration, that the title of the plaintiffs
Is that of an estate in fee, am of the
opinion that the verdict aids the declara-
ton. Motion in arrest overruled.
A. FRANCIs JUDD,
Justice ofthe Supreme Court.
Honolulu, April 10th, 1874.
U,rTy Tam,