The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-08-31

For the purposes OF this case u seems 10 me
that the relationship Of kunmu is fully made out,
though in a trial between Kahula and kuamu
should be quite unbiased. ye; the weight Of tesii-
m0ny is in favor Of kuamu as It appears to me,
and | so decide, viz. that kuamu Is shown 10 be
the heir of kikipine, though L do 50 without
prejudice to kahulas right IN any action that he
may bring, for he is not 4 party 20 this action,
and Is an ignorant man-apparently not quite
full witted. He has been brought here as q vat
ness, apparently Ignorant of how to get into
Court FOX his rights. This brings US to the main
question: Is this a valid deed or not? Now,
the deed Is one Of those acknowledged by the
witness solomon Thompson in accordance with
the statute after the death of the alleged grantor.
The deed purports 10 be made on the l4th June,
1876, and was acknowledged before Mr.. Justice
Judd on the 7th July following for the purpose
Of being put Of record by the sole subscribing
witness, Sol. Thompson. The statute under
which this so-called acknowledgment is made for
the purpose OF enabling persons to get on the
record a deed which has failed to be acknowledged
by the grantor or which the grantor refused to ac-
knowledge. This statute, which reads as follows:
~ But if any party TO an instrument executed
within this Kingdom shall die, or depart from
the Kingdom without having acknowledged his
deed, or shall refuse to acknowledge it, the deed
NAV be entered of record on proof of its ezecu-
ton By a subscribing witness thereto, before any
Judge Of a Court OF Record in this Kingdom,
has no other effect legally than TO give notice 10
every one that there is such q deed in existence.
Ii has the effect, in fact, TO preserve the testimony
of Thompson and Thompson only. It is hardly
necessary to dwell upon the different effect where
the grantor has made the acknowledgment him
self. In such a case, the grantor has made a SOL
emn acknowledgment as provided for by the law
and is estopped from denying that acknowledg-
mens everywhere; but in this case. were the
alleged grantor alive. he could challenge the
truth of the subscribing witness statements, and
SO his heirs may as they do now.
1t is to be observed that this deed purports to
be made on the l4th June, that Kikipine died on
the 9th, and Thompson testified before the
Judge on the 9th July following; and in his tes-
timony he remarks before the Judge that kiki-
pine, though Of sound mind, was of feeble health;
but in his testimony before this Court, he tes-
titles that his health was good; that he was well
and not feeble; that he advised him to go to the
Registrars Office to acknowledge the deed; that
the deceased asked him to sign the deed himself;
that this defendant came to him to 90 and make
the deed; that upon his arrival at the house the
deceased told him that he had sent for him to
make this deed; that he had prepared the deed
before he went there; that he had first learnt the
consideration on the 10Th, when the woman came
to him; that he left the deed with him; that
Kikipine requested him to sign as a witness and
said he must bring the deed to Mr.. Brown; and
that $50 was paid to Kikipine at that time.
Now, the testimony indicates that the defend
ant in this action was the mistress of Kikipine;
that although the man died in a week afterwards,
there was no money found in his possession by
anybody; and it is hard to understand why the
deceased man should be unwilling to send for the
proper officer if he wished to acknowledge his
deed, and if he was we'll, why he should not go
to the proper officer. The variation of Thomp-
sons testimony before MIR. Justice Judd and that
before the Court is very marked. In his direct
testimony he stated that when Kaeleu came to
him that he had no horse and she gave him one,
and that he went up to Kikipine's on the 18th;
yet IN his cross-examination he says that he came
to him on the 18th: that he did not go until the
18th, which would make him to keep her horse
two days, as he did not go there, according to
his statement, until the evening of the 14th.
These contradictions and improbabilities are SO
great that, on Thompson's own testimony, ire
spective of the opposing testimony of others, l
am compelled to disbelieve him. l mean that if
there was not any opposing testimony, of which
there is considerable, l should find myself con-
strained to disbelieve Thompson on his own tes-
timony taken alone and the circumstances attend
ing it. | therefore adjudge the deed to be null
and void, and that the defendant deliver it up to
be cancelled; and further, the defendant pay the
costs.
j. NJ. Davidson and Castle & Hatch for
plaintiff.
E. Preston and Cecil Brown for defendant.
HONOLULU, May 25th, 1878.