The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-05-09

Z" tiled so TO have been by the registrar Of con-
veyauces."
A new act on the sobject of registration, sub
stantially the same as 10 the Civil Code, was
passed By the Legislature. 9th July. 1882. re-
pesling the law above quoted. So whatever
effect this law might have had in 1880, at the
time this deed is dated, IN preventing such
document from beng pot IN evidence, it had no
efee, a, the time OF the suit Tor the law was re
peaed.
But we do not understand that the non record
OF deed. has by the act of 1876, any further
effect than TO proven; courts OF justice from TAX
inc judicial cocuizance of 1t. In other words it
does not make the deed a nulhty, though it
would seem that the jury so regarded 1t. The
/ Legislature deemed IL advisable that deeds Of
landed property should be recorded and the Law
requiring this to be done enacted that m default
OF this record no such unrecorded document
should be valid against another document con-
veyiug the same right or interest subsequently
executed, bat previously acknowledged aud re-
corded, and as further penalty no cuart OF just
ice was 10 take Judicial! eoguizance OF such an in
sirumeht.
In % Washburu p p 5901. we find it laid
down that the purposes Of this record are chief
IN 10 give notice TO all persons having occasion
10 ascertain whether there has been any prior
Conveyance or disturbance OF any real estate
and when it is made il becomes constructively
notice and as effectual in law rs il personally
given 10 the party 10 be affected by it. 1t may
therefore be stated IN general and nearly un-
qualified terms, that between the parties TO the
deed or the hers Gevisees OF the sran,or and
the grantee, and those claiming under him. the
validity OF the deed is not affected BY the want
Of record"
No direct evidence was offered BY the plain
tiff TO impeach this deed, and are unable 10
see hos any of The circumstances above referred
to can have any weight in law in invalidating ii.
We fully recognize the principle 81 frequeully
reiterated in tins court, that vsrilct viii not
De set aside merely when the court wouli have
arrived at different conclusion IRON the jary
bat in this case The deed does not seem to Us to
be impeached by the circumstances above re-
Ferred 10.
Bot il is said that as there was evidence OF su
adverse occupancy by OOpa for 20 years and over
previous to March. 1873. the Jury might have
based their verdict upOa this IN favor Of plain
tif's title, even though they found that the deed
wa, well proven, and as the verdict Is general
ole Tor the plaintiff. We cannot tell upon which
groand they found for the plaintiff.
We again quote from , Washbnrn, p. 400, as
expressing oar vieg as 10 what distractions
should be given to the jury in the matter OF
title by prescription.
- The question whether the possession is hos
tile adverse is Que partly Of law aud partly OF
TACT.
Whether the possession 10 fact is adverse. or
Is Rnder the owners title Is one for the jury
with this limitation that the buniea of showing
tue possession TO have been adverse is upon the
party alleging it. But what constitutes an ad-
verse possession, and what evidence of its being
such Is sufficient, are questions of law for the
A. ma oh
from the Intent with which it was taken and is
held. it is competent TO show by the declarations
4 OF the occupant made during the occupancy that
{ he did not hold adversely. Where therefore one
enters in subserviency TO the title Of the real
owner there must be a clear, positive and con-
,inued disclaimer aud diSavoSai Of the little under
which be entered. anG an assertion OF az adverse
right brousht home TO the owner, 10 order TO lay
a foundaiien ios the operation OF the statute OF
1 limitations"
The mere possession. then, of oopa, however
long continued would give him no title, unless
accompanied with claim of right and distinct
6isNvowzl Of Meeks tile to the land.
The burden, then, was on oopa 10 prove that
his possession was adverse. ard evidence that
Capt. Meek had the land assessed 10 hun and
that h. paid The taxes on it, that he exercised
acts OF oSnerShip over II oy putting up fences
and selling portions of il, by dealing with the
government with respect to taking portion of
it for widening The road shoald have been allow
ed 10 go to the jay Is evidence tending TO show
that 0op4's possession wSs subordinate to Meek's
and was not adverse. To the same effect would
also be evidence OF Surveys OF Shis land made at
John Meek's instance, and Of Royal Patents of
adjoining lands describing the land 10 question as
Meekis land. This would not of course show
that it vas Meeks land bat il would tend to
show that oopa's possession Was not so noiOri-
ou>ly adverse to MeeSs a. to RAISE the presump-
ton ihsi he was aware Of 0opa.s claim.
As regards possession Of the original awards
and surveyS or what are oftea called muuimeats
Of iiile,n We DC no; attach much weight to them.
Is the Law makes certified copies equally valua.
Die IS evidence bot such testimony Is not irrel-
eVant. and unless explained was entitled to go
TO the jury IS strengthening The evidence Of the
delivery OF the deed ander the award.
1t seems to have been lost sight of on the
irial that the possession of oopa if found to be
adverse could only inure to the benefit of the
plaintiff Kaaihue. The other plaintiffs must
stand or fall by the failure or otherwise of the
deed Of Kalamau to Meek for il is not claimed
that they ever had the actual possession of
the land
One point remains to be settled, the effect
Of the Judgment Of the police court of 1878. Il
claimed for this judgment that as the police
court has jurisdiction under article 81 of the
Civil Code TO try actions for the possession of
land between landlord and tenant, the fact Of
the tenancy Of oopa under Meek as found by
this Court imparts verify and cannot be con
tradicied; that Is, the question Of tenancy as
between the parties and their privies was
finally settled by the police court.
4 careful examination Of the statute leads
Us 10 the conclusion that the police court
could only have jurisdiction in cases where
the relation Of landlord and tenant confessedly
existed, the main question for the court being
the facts Of forfeiture for non-payment of rent
or breach OF covenants, or expiTy, If by par
ole after due notice to quit.
As the fact whether there was any tenancy
at all was disputed in that court, the judg-
ment and its execution by writ of possession
goes no further than to interrupt the statute of
limitations
II is 70 be regretted that this litigation has
been so prcsTacted, and the court is well aware
Of the difficulties that have stood in the way
Of speedy settlement of this case owing TO
the deaths of some Of the parties. changes in
the organization OF the court, and OF the eoun-
sci engaged. But, feeling as We do, that full
justice has no: vet been done, we have come
10 the conclusion that the verdict should be
set aside and new trial granted, and we have
thought il necessary to touch upon some Of the
questions OF law which are involved although
the Bill Of Exceptions raising them does not
show that the points were duly excepted 10 at
the trial.