The Hawaiian gazette., 1883-04-25

This is a bill in equity, setting forth that on
the 25th March lsjItheBoard Of Commissioners
to Quiet Land Titles awarded to Kalaeokelloi
and his heirs certain pieces Of land situated in
Kamakela, in Honolulu, by Award No. G2i5,
part l: that on the 9Th June 1855 a Royal Pa
tent No. 1855 was issued for the said lands TO
Kalaeokekoi his heirs and assigns: that at
some time unknown 10 the plaintiff but belicv-
ed by him to he on or after the said 9Th Of
June, lsjj, a Royal Patent was issued to a
person believed by the plaintiff to be one Ka-
lakin now. deceased for the said lands. pur-
porting to be on the same award, but which,
through fraud accident or. mistake, granted
these lands (which had been previously granted
to Kalaeokekoi his heirs and assigns) to Kalae-
okeboi for Kalakini. The plaintiff believes
that the last mentioned Patent was obtained
by Kalskiui without right through false or
mistaken representations, as Kalakini was
neither an heir nor an assign Of Kalaeokekoi.
The plaintiff is informed that there is no record
of that Patent in the Interior office:
The plaintiff is entitled to this land by de-
scent from Kalaeokokoi deceased intestate:
"but that the defendants are in possession of
the same, claiming through Kalakini by virtue
Of the said last mentioned Royal Patent, and
refuse to surrender possession to him." ETC.
The bill prays that this Patent may be can
celled and defendants enjoined against using it
as evidence Of title to these lands.
The defendants kahele and husband demur-
red to the bill, on the ground that the fraud
alleged is not charged in the bill against the
defendants: that the bill does not allege wheth-
er or not the plaintiff has ever had possession
OF the premises, and as there Is an allegation
that defendants are in possession of the land
claiming through kalakini by virtue of the
Royal Patent attacked in the bill, which Pa
tent was issued on or after June 9th, Sj5, this
amounts TO an allegation that defendants have
been in possession since June 9Th 1855, and
thus the Statute of Limitations has run in IA
vor of defendants. This laches of plaintiff in
delaying TO bring his bill is not excused or ex-
planned by him in the bill.
We think that she bill is demurrable. If
there was a distinct allegation that the defend
ants have been in undisputed possession of
the land for 2s years, and no disability Of the
plaintiff is alleged or any excuse made for not
filing bis bill before the statute had run, it is
clear, on the authorit, Of Kapiolaui vs.. Ke-
aweamahi Haw that such a bill would be
demurrable. We understand plaintiffs coun-
sci 10 concede this; but he contends tina. he /
has not averred that defendants have been in |
Of this land since the Patent was |
issued in ] s55, and that possession Of the Pa |
tent is not equivalent TO possession Of the |
land.
We think tha,, taking the plaintiffs view Of |
his bill, i, is defective in not containing COM /
plete recital as to the possession OF .his land /
since the Patent wa issued, so as to apprizc /
the Court of all the material facts Of the case.
But an allegation that " defendants are in pos
session Of the land claiming through Kalikini
by virtue Of the Patent" in default Of any
averment Of possession, since the Patent was
issued, in any other person than the defend
lnts, can well he taken TO mean that their pos
session has been continuous since the Patent
was granted. 1t is quite within the power of
he plaintiff to make sufficient allegations if
hey exist 50 that the bill will show equities
IN its face.
Demurrer sustained, with leave TO amend or
lie new bill in twenty days.
S. b. Dole and r. +. Bickerton for plaintiff.
Iecil Brown and F. NJ. Hatch for defendants.
Honolulu, April llih, lss2.