The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-05-09
WEDNESDAY,, MAY .. ls57,
Supreme Court of the Hawaiian Is
Iands-January Term. 1877.
Allen, c. J., and Judd, ].
opiniOu OF a majority Of The Court, delivered by
Judd. ].

Judd. J.
This is Al action of eieotmen, for lot OF land
on the Nuuanu Valley Road. Honolulu, which
the plaintiffs claim being the legal represen,
taIives OF kslamaa, deceased. to whom the hand
was awarded by Land Commission Award, nun
Der 800 Il. The award is dated April lS,,
1850, and The survey accompanying il March
5th, 1850. to f. Keo Tor X alamau,
The plaintiff kaaihus claims that be is the
purchaser Of the interest OF one Oopa. the bro
ihef of hslamau. and he shows a deed dated
March Sri, 1878. from kaoao. the widow and
devisee Of oopa (nOE deceasedl BY viii admit
ted 10 probate a ril S0ih. 1875, and he AYERS
that be is entitled 10 the possession OF this land
upon the further claim that oopa had u;le 10
il by prescription for 20 years previous 10 the
18th March. lS7S.
The defendant Mrs. Crahhe, claims as deyisee
OF Capt John Meek. deceased. under will duly
admitted 10 probate, am that the SAID land xas
conveyed by The woman Nalamau 10 Captain
Meek by deed dated the a6lh February, 1850
and further that OOpa's occupancy Of the land
was as tenant OF Meek's and was not adverse.
4 suit was brought By Capt Meek in Decem-
Der. lS1a, against The said O0pa in the Police
Court OF Huuolulu under Arucle IL az the
CIvil Code, claiming the possession OF the land
from oapa as his tenant by parole, alter ten
days notice 10 quit. The Police Justice found
that there WIS tenancy and issued writ Of
possession which was finally executed by oustiag
Oola on the l4ih March lS13.
An effort was made 10 perfect the appeal
which The magistrate refused 10 allow and pro
eeediugs were had by manismas 10 compel the
appeal, bat II was finally RELEASED by the SGpreme
Court IN BzncO. II being found by the court that
the appeal was not perfected IN time.
The plaintiffs then commenced an action OF
ejectmeni against Capt. Meek which WAS par.
iially heard al the April Tern. lS7S. This ac-
ZION was discontinued upon compromise being
agreed upon between the parties. which how
ever was never completely executed. Mean
while Meek and 0opa deceased and The present
action was brought at the October Term. 1873.
Ii came on TO be heard al the January Term.
1876, before mixed jury. The frsi Jury dis
agreed and were discharged. The second Trial
resulted IN unanimous verdict Cor the plaintiffs
We deem this history OF the case to lie Beces-
ssry 10 us complete understanding.
\ motion for new uial is made on the
ground that the verdict of the Jury was contrary
10 the law and The evidence ana the iustruc-
lions OF the court, ami because the court erred
IN refusing the Instructions asked Tor by the de-
i-ndants, and in giving thUse asked for by the
plaintiffs and also because they have discovered
new evidence. This lasl ground the court find
]
clearly that these Witnesses whose Testimony Is
alleged 10 be newly discovered were accessible
10 the defendants - The trial and should have
been produced then.
Let rs nov consider whether the verdict is
contrary TO the evidence.
The Record shows that deed was produced
shown 10 have come from the possession Of
Meek, stamped with the old stamp 10 use many
years ago.
As This is the most important feature il this
case, We reciie the deed in fall. 1t Is as follows;
"QUIr Clam
Know all men by these presents. that Eala-
Z" nau, Of Honaiulu. o@ha HaSaiian lslands
aud vile Of heo. late deceased fos ana in con
slder@t'Oa Of the sGm Of one hundred and fity
dollars. TO me IN hand paid br John Meek OF
Honolua, Oahu. Hawaiian Islands, the receipt
whereof l hereby acknowledge. have bargained,
sold and quit claimed, aud hy these presents
do bargain. sell ana quit clam unto the said
John Meek. and 10 his heirs a3d assigns for
ever al ny right, title, interest. estate, claim
and demand. both II law snd 10 equity and as
- vel, IN possession as in expectancy Of 10 and
TO all that certain piece or parcel Of land situa-
=" Ted contiguous 10 The Naaanu Valley road.
= and Immediately adjoining the first Stone
Bridge, oct Of the village Of HonoiGlu. over
- which bridge SAID road passes which property
" aforesaid husband heO, late deceased with all
" and Singular the hereditamenis and appur-
' tenaaces there1nio belonging. In witness
. whereof have hereunto set nv hand and seal
" this 10Th day of Fe5ra4ry 10 the yesr one
thousand eight hundred and sfiy
tSisued) kAi-,XAU. rLSl
s. Sealed and delivered in presence Of
(Siguedl Jozx E JSsPER
Testimony vas ad3aced 10 show that the sig
nature OF . John R. Jasper" the subscrihsug
witness, who Is deS6, was genuine, AID Mr. Dow
seit also sVore that he knew all the parties
keo. halamAn, and Capt Meek, and was sc
euainied With his transaction, that be knew the
singOature and handwriting OF Kalsm.u. and
that her signature to this deed was genuine.
II vas urged against this deed that it was il
the English language AMI Ralamau being Ha-
uaiian, the inference was drawn that she oid DOT
understand lis contents. there being no ceriiS-
cate on the deed that 1t vas translated to her
We hold that grsuior Is presumed TO have
known the contents Of the deed be has executed
unless The contrary be afirmaiiveiy shown. ,
Wsshburn, E. P. SIC. KinbaA vs. Eaton, s n
H. SsI.
The banieu Of proof o: want Of kuOzledee Of
the contents Of the deed vas OF The plaintiffs
aud they sd61ced no testimony on this point
This court mast c0aiiuos 70 hold parties to be
gTlmG fslois responsible for their deeds See
hsoPGs 81 a. rs keelikoizDi. July Term. 1875.
il L further rrged thai the &c; that the dee;
is not aeknOElsdged OF recorded. reb1is the pre-
sumption that II Was executed and delivered
Bot II Is clear that this deed Was 6elivered
The isci that IL e4ne from tie grantees posses
siou poesumes delivery.
- II a deed is found IN the grantees hands, s
delivery and acceptance i aiEsys presumed
WashbuEn. r P. 5sl, and many cases there
cited Moreover. the witness jasper atiests
tbzi It vas sealed and delivered
Ntere deed appears 70 have been duly
signed and sealed and Is a;ies,ed, the 6s!iEerT
vii be inferred 10 have taken place"
Burting W. Paterson. Carr and P. $50.
Where The sties1zliOu clsase Was the sane Is
II this Csc sealed aud 6sliFere5,- Lord Eldou
SAID there would o miscarriage il Judge
directing lury bot 10 presume that the deed
Eas signed in the presence OF the same witnesses
as it protested 10 be"
NcQoeen vs. FArQuhar II yesey as.
Bal il l. sid that the statute Of reg s,latiou in
force al the date Of this deed forbs6dnr deed 90;
acknowledged or recorded bang offered in en-
deocs has the eEec; Of rs5atiing the p-esuuu-
ti0n thzt The deed was signed and delivered.
The statute reads:
:. Si=inie. 1876. All deeds Of landed
property and leases for longer period than
one year. however e1ec1sed- al releases OF
dover. and al mortgages or other ple5re Of
real estate IL security for the psyueat OF
rODeT. all deeds and declarations Of trust Of