The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-06-25
LuHELUHE.
NAFEAHI by Ksiawa.
NoHoIKAHIKI by the heir
NoHoIKARrKI the second.

NoHoIKAHIKI by the heir
NoHoIKARIKI the second.
Done before me, NA1APAAKAI.
On this 25th August, at Hamakua, Hawaii,
Hawaiian Islands, Juheluhe, did and acknoHl-
edged his agreeing voluntarily in the convey
Ing the land above mentioned, for Kaiwi, and
to Kaawa, the heir of Napeahi and Nohoika-
hiki, afterwards is to be acknowledged his
agreeing voluntarily, therefore l do certify
this was done properly.
D. X. NAIAPAAKAI,
Circuit Judge.
Il will be seen that Of the original patentees
only Buheluhe signed the deed.
Kaiawa who signed as the heir Of Napeahi
lie shown to have been a minor at the time,
and he had other brothers, aud moreover he
disafirms this act by his deed to Kaalawama-
ka; Nohoikalika End was evidently not pres
eut before the acknowledging officer, and did
not sign. However Intellectual the deed was,
so far as the interests Of Napeahi and Noho-
ikaliiki are concerned, it was, in my opinion,
an attempt to execute the agreement originally
made between the patentees and Kaiwi. The
deed has the effect also Of evidence to show
that such an agreement was made, and that
Kaiwi advanced Sis Of the purchase money
The proofs GhuHde show that the patentees
held the land in trust, az TO forty-four and
one half acres for Kaiwi, whose interest is
now held by the plaintiff, Kaivi having con-
veyed to Kahoohua by deed dated August Is,
1856, and recorded in Liber rs, pages 1854,
and on the death Of Kahoohua iuiestaie, d.
W. Keliaa, his son, inherited the estate, and
sold TO the plaintiff, by deed dated April 18th,
1880, aud recorded in Liber rs PIP. } and 4.
There was great deal Of evidence taken on
the question as to whether the various pur-
cbasers had notice Of the claim Of Kaiwi to
this land. Much Of this is untrustwOrthy, es-
peeially that of Amona and Kolio, sons Of Ma
peahi, sworn on behalf Of the defence. These
young men contradict themselves so COM
pletely as to be altogether unworthy Of credit
think however, that the defendant Kaala-
wamaka is shown to have had actual notice Of
Kaiwi's claim when he purchased from the
sons of Napeahi. This deed bears date the
let May, 1883, and is recorded in Liber 70 on
pages 473 and 474.
The testimony as 10 actual notice Of kaiwis
claim to Samuel Parker, who claims an inter-
est in this land by deed from Kuakini who
purchased the interest Of Nalanikapu, the
widow Of Nohoikahiki, is not satisfactory to
me. So also l am not convinced that s. P.
Kane, who bought the interest Of Wailoa,
another sou of Napeahi, by deed dated 4th
May, 1882, recorded in Liber II, pages I55
and l56, had actual notice. The four sons Of
Napeahi, Kaiawa, Amona, Kolio and Wailoa,
all claim to be also nephsws and heirs Of No
hoikahiki, their mother being Nohoikabiki's
sister, and their several conveyances above
referred to include the interests derived from
both Napeahi and Nohoikahiki.
Actual notice is not shown to have been
given to W. II. Richard, who is S. P. Kane 3
grantee, by deed dated the 4th May, 1882, nor
to the Honokaa Sugar Co., (defendant) who
purchased Richards interest, by deed Of jan
uary 4tlI, 1884.
If the defendants are bona tide purchasers,
without notice Of the claim Of kaiwi, they are
protected, according to we'll settled principles
and by the statutes of this kingdom.
| 1t is claimed by the plaintiff that the naked
possession Of Kaiwi, was sufficient to charge
defendants with notice, according to Maule VS.
Waihee Sugar Co., Hawaiian, 637. 1 do not
think the acts of possession were sufficiently
| prominent to put purchasers on their inquiry
The land was unfenced, and uncultiyated, e1-
| cept at intervals. There was nothing to mark
the boundaries of the land prominently, and
moreover, Kaiwi had other land in the neigh
borLood, and it might be supposed that he was
living on it. But it is urged that the deed o.
1866, executed by Luheluhe TO Kaiwi, wat
sufficient to affect purchasers with notice. The
general rule is that possession is referred t
the record title and the purchaser will not bt
affected with notice of any undisclosed equity
or title which the purchaser may have. Wade
on Notice, Sec 297. But it is urged. and will
convincing force, that the recital in the deco
under consideration disclosed the subsistinl
equity sufficiently to put purchasers upon in
quiry.
1t recites as the consideration Of the con
veyance "the money, (forty-eight dollars
which Kaiwi, of AhualOa advanced to US
the time of buying this land, and in order t
discharge, or pay this money of Kaiwi's, tina
the patentees agreed to transfer to him thu
fOrty-fOur and one half acres" l think thi
language being in recorded deed, is suficien
TO apprizo intending purchasers of the sam,
land, of the right claimed by Kaiwi, and the,
took the risk of their purchase being defeated
by the enforcement of this right and TO the ex
tent of the right.
See Wade on Notice, Chap. ". Title, No
tice from Title Papers. Tho recital here woult
lead to knowledge Of the real transaction.
In Sigourney vs.. Mann, Conn.,, 1924, it i
said that "Whatever is sufficient to put a per
son on enquiry is considered in equity as con
veying notice"
find trust here, resulting from the acts o
the parties, the estate being purchased in par
by Kalwi, with his own money, and the it'll
in the Royal Patent being in the name Of tn
original applicants.
See Perry on Trusts, Secs. 1874, l25, 1875 ant
numerous cases there cited.
That such trust can be proved by parol il
not doubted, and is not affected by the Statute
of Frauds, though not specially excepted il
the statute.
l Ferry Trusts, Sec. 1876.
And it may be so proved even after the dealt
of the nominal purchaser. Id. Section l3s:
find, therefore, that the defendants herein
are trustees for the use Of Keawe, the plain
tiff, of AZ acres Of the mauka part of tho lanC
described in Royal Patent No. $40 of govern
ment grants, and direct them to execute con
vcyances accordingly.
| W. a. Kinney for PLAINTIFF c. Brown fo
Samuel Parker; r. +. Bickerton for Honoka;
Sugar Co., W. G. Holokahiki for Kaalawa-
maka.
Honolulu, May 10th, 1854.