The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-03-31
Supreme Court of the Hawaiian
IsIRnds-In Equity.
KAOPU4 Ck), KALAMA Or, AND EKEKELA
(r.), Is. hER HIGHNESS RUTH
KEELIKOLANL
BEFORE Nh JUSTICE Jupp.


The bill was filed September 10th, 1874
Defendant demurred for non.joinder o
parties, September Esd :; demurrer wa
sustained and the bill amended by adding
Ekekela as party plaintiff. Answer wa
filed November 18th, and case brought OF
for hearing January 2lst, 1915, and proof
closed February sth 1t appears from tn,
pleadings in this cause that Kaopua, Ia
lama, Ekekela and Mahuia are the heirs-at
law of Kaleiheana, deceased, was who at the
time of his death seized and possessed o.
the land "Helumoa," and that he was 6
tenant in common with Her late Roya
Highness Victoria Kamamalu in the
lands Of "Kanewai," "Kanewai Kahala,
and "Pahoa,n all of these lands being sit
uate at Waikiki, Oahu, and also that the
defendant is the heir-at-law of His late
Highness NJ. Kekuanaoa, and of His late
Majesty Kamehameha V, and that said NJ.
Kekuanoa was the heir of Her late High
ness Victoria Kamamalu.
1t also appears from the pleadings that
a power of attorney was executed by Kao.
qua, Kalama and Nahua (now deceased,
under whom Ekekela claims) to one A. j.
Lawrence, on the Goth of December, 1867,
acknowledged before Thomas Brown,
Registrar of Conveyances, and by him re-
corded on the same day; and that under this
power, the said Lawrence executed, OR
the 18th March, 1868, certain deeds of
conveyance as follows; of the said land
"Helumoa" to His Majesty Kamehameha
V, for the consideration of Two Hundred
and Fifty Dollars; of the lands of "Kane-
wal" "Kanewai-Kahala" and "Pahoa,"
to J. 0. Dominis, Administrator of the es-
tate of Princess Victoria Kamamalu, for
the consideration of Seven Hundred and
Fifty Dollars, deeds recorded respectively
on the Sth and 10Th of September, 1874,
and that said Lawrence signed the names
of Kaopua, Kalama and Nahua to these
conveyances as their attorney in fact
The bill alleges that the said power of
attorney to Lawrence was written in the
English language, of which the orators
were ignorant, and that it was represent
ed to them that this power gave said Law
renee, who was an attorney and counsellor
at law, authority to recover said lands
(which were then in the possession of His
late Majesty Kamehameha V, by pro-
ceedings in Court, and that it was signed
by them under that belief, and so far as the
said power of attorney purports to author
ize the said Lawrence to sell their said
lands it is fraudulent and void, as they new
err gave or intended to give Lawrence any
power to sell these lands, and the bill
prays for a decree for the delivery and
cancellation of said power, and also of the
deeds of conveyance executed by said
Lawrence. The bill, in short, alleges such
Misrepresentation as amounts to legal
fraud.
The answer alleges that the said power
of attorney was truthfully interpreted to
said Kaopua, Kalama and Nahua, and
that they knowingly signed, executed and
the same
The main question at issue is whether
this power of attorney was executed by
the parties with full knowledge and I'M
derstanding of its contents.
The burden ofproof is upon the plain
tiffs to establish their case" Fraud will
never be presumed, but must be clearly es-
by proof; dolum er indiciis per-
spicujs Pro6ari conyeni. 1t is not, how
ever, necessary that positive and express
proof thereof should be given; for when
ever it is manifestly indicated by the cir
and condition of the parties
contracting, it will be presumed to exist"
Story, Contracts, S499.
As a Court of Equity, invested with
more extensive and unrestricted jurisdic-
ton than Courts of law in cases of fraud,
| now examine the whole transaction to
see if fraud can be inferred from the spe-
cial circumstances of this case.
The plaintiffs have shown energy, de-
and persistence in pushing
their claims for these lands really worthy
Of admiration.
The records of this Court show four
actions of ejectment brought by them
against the late John Ii, who was guard
ian of the late Princess Victoria Kamama-
u, to recover possession of these lands.
But in three of these cases they were nom
suited and the last case was discontinued |
IN their own motion.
The Princess Victoria having died in
1866, June goth, they employ Mr.. w. G. |
Jones, an attorney of this Court, who had
ately arrived in this Kingdom, and on
July 18th, 1866, he procured the allowance
of their accounts as administrators of the |
estate of Kaleiheana, and they were de-
creed to be his heirs
Mr.. Jones, in 1867, drafted for them a
bill for partition of these lands, in which
hey pray that NJ. Kekuanaoa, as admins
.rator of the estate of the late Princess,
nay be made party defendant. Mr..
Jones says that Mr.. A. J. Lawrence was
associated with him in the case, and that
he bill was never filed because Lawrence
retained it, and had worked him (Jones)
out and himself into the plaintiffs conf
1ence, but finally Lawrence returned it,
saying it was call right"
Lawrence prepares an exhaustive state
nent of the claims of these plaintiffs as
he heirs of Kaleiheana, and has it pre-
;ented to the King, Kamehameha v, who
was then in possession of these lands; it
prayed the King to allow them TO take
possession of Helumoa and to divide the
,ther lands with them. Next comes the
power of attorney to Lawrence, executed
December Goth, 1867. On March 18th,
1858, J. 0. Dominis, then sole administra-
or of the estate of Princess Kamamalu,
applied for and received permission from
he Court to expend $1,000 of the funds of
he estate in the purchase of the interests