The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-09-13
Supreme Court of the Hawaiian Islands
In Banco-July Term. 1873.

IKALLA, GUARDIAN OF KASAKAoKAI, v.KoPAKA Fl AL.
Before Chief Justice Harris. Judd and
McCully, j. j.
Opinion of The Court By Chi5 Justice Harris.
This Is an action for the possession of a piece
Of land known by the name of Haleaha, 10
KOoIaulOa, leland Of Oahu, patented to Aikaula.
The plaintiff at the trial established that be was
the undoubted heir at law to Aikaula, and there
on rested his case.
The Bill of Exceptions goes on to state as fol-
lows The defendant offered 70 show that the
land claimed had been taken by the defendants
ancestor, over twenty years ago, in exchange for
other lands which the plaintiffs ancestor entered
upon. and has since sold and this evidence was
given against the plaintiffs objection and its ad-
mission was excepted to by the plaintiff. The
Court instructed the Jury that if they believed
this evidence they could find for defendants and
even If the possession under the exchange had
not been held for twenty years, they would hold
the fact of an exchange for a long time to be an
estOppel to plaintiffs claim, which charge was
also duly excepted to by plaintiffs counsel.
Whereupon the Jury gave a verdict for the de-
PENDANT. Conceiving that the Jury were con-
trOlled by improper evidence and influenced by
.instructions given in error by His Honor afore-
said, counsel for the plaintiff prayed His Honor
would sign this Bill of Exceptions, containing
the substance of matters and things given in
evidence and the charge of His Honor to the Jury
at the trial aforesaid, as excepted to by the said
counsel at the trial aforesaid"
Per Curtain The portion of the Bill of Ex-
ceptions which reads as follows:
And even if the possession under the ex-
change had not been held for twenty years, they
would hold the fact of an exchange for a long
time TO be an estoppel to Plaintiff claim, was
the only portion insisted on at the hearing, and
it was not doubted that if the Defendants had
held possession for twenty years and over, this
title would be good by prescription. On the
other hand it was thought that the case OF
Kanohai o.. KaheLe, 3 Haw. p. $50, should con-
troll the case, and that case justified the instruc-
ton laid down in the Bill of Exceptions. In
arguing his exceptions Counsel for Plaintiff ex-
pressly said, that he hoped to induce the Court
to override the above mentioned case, showing
thereby that he thought that the case now I'M
der consideration was similar.
But the cases are entirely dissimilar. In hd-
mOhai o. KaheLe, the Plaintiff himself had pro-
cured that the Defendants ancestor should pur-
chase the land in question Of another person
whom he stated to be the owner the Plaintiff
had been very active in the sale saw the money
paid and the deed signed. And it was held, IN
effect, that under those circumstances, the Plain
tiff vas estopped from setting up a title in him
self, when he had already ayerred the title to be
in another. But il will be seen that a deed had
been duly executed and delivered by some one
whom the plaintiff averred to be the rightful
owner, and IN this case no deed has been made,
and therefore in view Of the Statute of Frauds
and the Statute of Prescription, the Court is
not prepared to hold that if by reason of the ex-
change, the land had been held for less than
twenty years, the jury should have been in
structed that the defense would have been a good
one at law, although 1t is certain that a Court
Of Equity would order this Plaintiff to make a
Deed in favor OF the defendant, 1.-THE fact being
shown to be as alleged) viz: A verbal agreement
for exchange having been executed by possession
and occupation for a long time. Brown on Sta
tute of Frauds, section rs.
But it is an invariable rule that the Bill of Ex-
captions should set forth as much of the evidence
as shows that the judge erred in his ruling, and
in the law applicable to the case. Fuller u. Rd-
BIZ, 10 Gray, 288. But the duty of the party
taking exceptions does not stop here he should
set forth the testimony sufficiently so that the
Appellate Court may ascertain whether the jury
were misled, in any material degree for 1T
would be enough that the decision is right on the
undisputed facts of the case a new trial would
do no good, but would merely subject the par
ties to an expensive litigation to correct a theor-
etical error which is not at all important to a
correct decision" Munro .. Potter, "a Barb.
367.
Now this Bill Of Exception sets forth no tes-
timony at all, and might have been dismissed on
that ground. But we have had recourse to the
judges notes, and find that the testimony is over
helming that the exchange took place more
than twenty years ago. Kupau says that he
marks the time of exchange because it occurred
before he was admitted To practice law, and that
was in 1857. Kane says that his son was born
after the exchange, and he was. born 18th OF
March, 1858. Kopaea says that it was before
Kaaikaula went to prison although he does not
say how long it was before now the record OF
the Court show that Kaaikaula went to Prison
in 1868 and there is no testimony introduced to
show any date of the exchange which will con-
tradict this testimony. So that it remains un-
disputed as a matter of fact, that the defendant
has established the proposition that he entered
upon the grounds rightiully, for valuable co,e
sideration to the Plaintiff ancestor, and he has
remained, in undisputed possession OF It, for
more than twenty years, such possession being
open and notorious, and now the Statute pro-
tects him In his possession.
TIE exceptions are therefore overruled and
Judgment ordered on the verdict.
j. NJ. Davidson for plaintiff; A. 5. Hartwell
for defendants.
Honolulu, August End, 1879.