The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-02-15
Judd, c. J.. MeCruy and Austin, JJ-Opi"-
ion Of he Court BIZ McC,Ay j.

From the Nov Term, 1881, of the Third
Judicial Circuit Court upon exception TO re-
fusal Of the following instruction: That the
instrument nnder which plaintiffs claim title,
purporting 10 be 4 deed, is not properly
executed to constitute q deed and plaintiffs
cannot recover under it as it contains no seal
and as il purports TO be sigued, sealed and
delivered by Inaina, and nowhere does 1t
appear that it was so scaled"
In Wood VS. Ladd ct ais. LIST Haw. Rep. IL,
October Term, 1877, Chief Justice Lee says ::
81 There is DO law of this Kingdom making
seals necessary TO the validity of such instru-
ments, [Mortgages), and the objection can be
urged only on that authority of the laws of
other countries as there is no 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 &C
qniescenee in this doctrine for more than
thirty years, we may rest this case, unless It
shall appear that subsequent legislation has
made a seal requisite TO the validity OF a
deed. But it is agreed that there is still no
statute in this Kingdom which requires estates
in land or conveyances TO be made by writ
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 it's reasouings aud principles may
he adopted by the courts. Civil Code Sec.
1913. The King VS.. Agnee ct al. 3rd Haw.
Rep. LOG.
Our Statute Of frauds, Sec. 1858 Civil Code,
provides that no action shall he brought or
lp q
lands unless it shall be in writing and signed.
Nothing else is required by statute to make
deed but the signature thereof. AT common
law, signing as part of the execution of a
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 X. p p. p. 2IO, 2Il.
The elaborate arguement 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,
fell constrained by the rank injustice of
holding that deeds made IN the ten years
preceding were void for want Of seals. We
NAV say that upon that decision, never mOdi-
fed hy statute countless number of deeds
have been executed without regard to scaling
The omission to prescribe sealing as requis-
lite to conveyance of real estate in the
subsequent sta ute prescribing signing, pre-
dispenses with the seal in this
Kingdom, and to hold otherwise, upon the
ground simply of the common law doctrine,
aud contrary 10 permitted usage ever since
there was individual ownership of land and
deeds were made in this Kingdom would be a
peruiciuus instance Of Judicial legislation.
Exception oveTuled.
A. FRANCIS JUDD,
Lawrence MCCULLY,
BENZ. II. AUSTIN.
4. S. Hartwell, for Plaintiff. Ed. Preston,
for Defendant.
Honolulu. Feb. 9Th, 1852.