The Hawaiian gazette., 1877-03-21

parie action 10 furnishing Royal Patent to be
the almost impregnable basis of conflicting
title.
The act Of 1872, entitled An act to Regulate
the Issuing of Royal Patents" modifes the doc
trine of this court in Davis VS.. Brewer. January,
1871 and in our view, goes far to remove the
practical difficulties of the case. Section LIST
reads as follows: Every Royal Patent here
after issued upon an award of the Board of Com
missioners to Quiet Land Titles, shall be in the
name of the person to whom the original award
was made. even though such person be deceased
or the title to the real estate thereby granted
have been alienated and all Royal Patents so
issued shall nure to the benefit of the heirs and
assigns Of the holder of such original award
Patents based on awards, do not therefore con-
fer or confirm new titles. The name of the
holder of the award who applies and pays the
Communication. if he is other than the original
grantee, does not appear in it. The title of
every holder or part holder is left to be derived
from the "person to whom the original award
was made" The new grant from the govern
ment of fee simple goes back to the date OF the
award and attaches to the subsequent transfers.
1t may be compared with the doctrine of estop-
pei against warranter subsequently acquiring
title in the premises he has conveyed. his better
title enurng in favor OF the covenantee. Here
the statute creates srch an estoppel without
special covenant in the conveyance and the effect
of the patent is to relnqush the government s
interest in the area described therein unto the
original awardee, be the same more or less in ex-
tent than any section which has been alenated
it grants nothing 10 subsequent holders, other
than as they derive through the first, and such
patents are therefore entirely inconcnsive as to
rights between part holders. 1t does not appear
E., ,hoIc ,f
award on application and payment of the COM
mutation by the owner of any part therein, nor
why the holder of an eutire award may not COM
mute and patent q part thereof
But where application is made for patent
with description other than that containing an
entire award, and not defined by Boundary
Commissioner. the Minister of the Interior can
not act iudiciay 10 determine if the lot applied
for is in fact comprised within such award. 1t
must appear by the literal agreement of the
metes, bounds and description of the survey in
the petition with that in the award so far forth
as the lot in question is bounded by the exterior
lines of the award that it does not conform there
to aud lie not outside the original award. 1t
will not be legal for the Minister to proceed on
what may be claimed to be. and perhaps. be in
fact, rectifed and improved survey made with
greater accuracy and more perfect correspond
eOCe Will iOls. lie lHdy UOL ucL
upon survey in the English language if the
original was in Hawaiian, and vice versa. upon
one in the denomination of feet when the origl-
nal was chains and links, nor if the area in the
one is expressed in different notation from the
other, nor car he judge ifthere should be an al
lowance for a different variation of the compass
existing at the present time. But this rule OF
literal conformity does not preclude him from
taking part of an original course or courses
when the deyision requires it. The initial point
however must be recognizable as in an original
course or at an original angle. and the lines to
follow he same until section is made.
Upon comparing the survey in this case pre-
sented for patent. with the survey in the award
it will be seen that upon the principles OF this
decision no patent can be issued, for its identity
as section or the Honaunau award is not an
apparent Identity.
CHAs. c. HARRIS,
A. FRANCIS JUDD,
LAWRENCE MCCULLy.
S. B. Dole for plaintiff, Attorney General
Hartwell for defendant. -
Honolulu, March 9th, 1877.