The Hawaiian gazette., 1882-02-15
NEIL CAMPBELL, GUARDIAN EFT AUS. vs.. MANU-
ET AIS.
Judd, c. j., AeCuly and dustin, J. J.-Opia-
ion Of NE Court By McCuly, j.


From the Nov. Term, 1851, of the Third
Judicial Circuit Court upon exception to re-
fusal OF the following instruction: That the
instrument under which plaintiffs claim title,
purporting to be a deed, is not properly
executed to constitute = deed and plaintiffs
cannot recover under it as it contains no seal
and as it purports TO be signed, sealed and
delivered by Inaina, and nowhere does it
appear that it was so sealed"
In Wood VS.. Ladd ct ais. LIST Haw. Rep. II,
October Term, 1917, Chief Justice Lee says
There is no law of this Kingdom making
seals necessary to the validity of such instru-
ments, (Morigages), and the objection can be
urged only on that authority of the laws of
other countries as there is 10 statute
or common law in Hawaii making them neces-
sary. We are Of the opinion that no deed
could be invalidated for their want"
Upon the high authority of the learned
Chief Justice who to large extent and so
wisely laid the foundations Of our Hawaiian
Jurisprudence and upon the undisturbed ac-
quiescence in this doctrine for more than
thirty years, we may rest this case, unless 1t
shall appear that subsequent Legislation has
made a seal requisite to the validity OF
deed But it is agreed that there is still no
statute in this Kingdom which requires estates
III lllti OF EOuNtNdNGtb 10 It IlAut bN wiz
ings under seal. This Court has repeatedly
had occasion to say that the common law of
England is not in force in this country any
further than its reasouings and principles may
be adopted by the courts. Civil Code Sec.
s23 The King VS.. Agnee ct al. 3rd Haw.
Rep. lOG.
Our Statute of frauds, Sec. 1858 Civil Code,
provides that no action shall be brought or
maintained upon any contract for the sale of
lands unless it shall be in writing and signed.
Nothing else is required by statute to make a
deed hut the signature thereof At common
law, signing as part Of the execution Of
deed is unnecessary, but tie sealing of deeds
was indispensably necessary, in order TO
their validity, at least after the time of Ed
ward III. 3rd Washburn Il. P. p. p. go, 27l.
The elaborate arEuement Of counsel for the
defendant is founded on the above doctrine,
and would be conclusive if the common law
were here in force.
There is good reason, in our view, for not
finding the common law binding here in this
respect Chief Justice Lee, in the case cited,
felt constrained by the rank injustice Of
holding that deeds made IN the ten years
preceding were void for want OF seals We
may say that upon that decision, never modi- |
led by statute countless number of deeds /
nave been executed without regard to sealing /
The omission to prescribe sealing as requis- |
te to conveyance of real estnte in the /
subsequent sts ute prescribing signing, pre- /
ump,ively dispenses with the seal il this |
Kingdom, and to hold otherwise, upon the |
round simply of the common law doctrine, |
nd contrary TO permitted usage ever since
here was individual ownership Of land aud
eeds were made in this Kingdom would be a
euicious instance Of Judicial legislation.
Exception overuled.
A. Francis JUDD,
lAwRENCe MCCULLY,
BENJ. Il. AUSTIN.
A. S. Hartwell, for Plaintiff. Ed. Preston,
,r Defendant.
Honolulu Eeh 9Th 1850