The Hawaiian gazette., 1884-06-25

On this 10Th August. Al uamaAuas naNf
Hawaiian Islands, Luheluhe, did and aoknoN'-
edged his agreeing Voluntarily in the convey,
inc the land above mentioned, for kaiwi, and
!. E.,u-,. the heir Of Napeahi and Nohoika-
biki. Afterwards is to be acknowledged his
arrreiur voluntarily, therefore | do certify
ais was done properly.
n, K. NAIsPAAKAI.
Circuit Judge.
Il will he seen that Of the original paienieee
only Luheluhe signed the deed.
Eafava who signed as the heir Of Nareahi
"a shown 10 have been a minor at the time,
ard he had other brothers, and moreover he
disafirus this act by his deed to ksalawama-
~ Nchoikahika Ind was evidently not pres
-, before the acknowledging officer, and did
nj sirp. However Intellectual the deed was.
81 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an attempt to execute the agreement originally
made between the patentees and kAiwi.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
thai such an agreement was made, and that
Kawi advanced SIs Of the purchase money
The proofs 0li,tEdt show that the patentees
held the land in trusi, "a 10 fOrty-four and
one half acres for Kaiwi, whose interest is
now held by the plaintiff, kaiwi having con-
veyei to Kahoohua by deed dated August Is,
and on the death Of KAhoohua iniosgaie, u.
". Keliaa, his son. inherited the estate, and
sold 70 the plaintiff, by deed dated April 18th,
1850. and recorded in Liber rs pp. and 4.
Tscre was great deal Of evidence taken on
the question as TO whether the various Pur-
ohasers had notice Of the claim Of kaiwi to
this land. Much Of this is uutrustNurthy, es-
peeialIy that Of Amoua and kolio, sons OF Ma
pcahi. sworn on behalf Of the defence. These
Young men contradict themselves 80 CON-
pleiely 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
lst Nay, lSSs, and is recorded in Liber % on
pages 47S and 474.
The testimony as 10 actual notice Of kaiwi's
clam to Samuel Parker, who claims an inter-
est N this land by deed from kuakini who
purchased the interest Of NalanikAPu. the
widow Of Nohoikahiki, is not satisfactory to
me. So also | an not convinced that $. P.
Kane, who bought the interest Of Wailua,
another sou Of NapeAhi, by deed dated 4th
Nav, lisa, recorded in Libsr ~, pages i55
and 1856, had actual notice. The four sons Of
Napeahi, KaiAva, Amona, koho and Wailos,
all claim to he also nephsws and heirs Of No
boikahiki, their mother being Nohoikahikis
sister. and their several oonveyances above
referred to include the interests derived from
both Napeahi and NohoikAhiki.
Actual notice is not shewn TO have been
given 10 ". Il. Richard, who is S. P. kane's
grantee, by deed dated the 9Th Nay, 1852, nor
10 the HonokaA Sugar Co., (defeDdAnt) who
| purchased Richards interest, by deed Of jan
uary 18th, 1854.
II the defendants are BONA .kds purchasers,
without notice Of the claim Of Kaiwi, they are
protected, according to we'll settled principles
/ and by the statutes Of this kingdom.
Il is claimed by the plaintiff that the naked
possession Of kaiwi, was Sufficient TO charge
/ defendants with notioe, according to Maule vs..
/ Waihee sugar Co, Hawaiian, $50. l do not
think the acts Of possession were sufficiently
prominent to put purchasers on their inquiry.
/ The land was unfepced, and unoultiyaied, ex-
| cepi al intervals. There was nothing TO mark
the boundaries Of the land prominently, and
moreover, Kaiui had other land in the neigh
b1rhood, and it might be supposed that he was
] living on it. Bat il is urged that the deed Of
1 1866, executed by Luheluhe 70 kaiVi, was
sufficient TO affect purchasers with notice. The
general rule is that possession is referred TO
the record title and the purchaser will not he
/ Affected with notice Of any undisolOsed squiiy
I
/ on Notice, Sec 2eT. But il is urged. and with
convincing force, that the recital in the deed
under consideration disclosed the subsisting
equity sufficiently to put purchasers upon in
quiTy.
1t recites as the consideration Of the con-
| veyaDce "the money, (forty-eight dollars)
| which Kaiwi, Of AhuAloA advanced to US at
the time Of buying this land, and 10 order to
l discharge, or paw this money Of kaiwi's, that
| the paten,ees agreed to transfer 10 him the
] fursy-four and one half acres" think this
! language being in a recorded deed, is Sufficient
TO appri5e intending purchasers Of the same
land, Of the night claimed by kaiEi, and they
took the risk Of their purchase being defeated
! BY the enforcement Of this right and 10 the eI-
tent Of the right.
See Wade on Notice, Chap. ". Title. No
| ,ice from Title Papers. The recital here would
lead to knowledge Of the real transaction.
/ In Sicourney vs.. Mann, Conn, 524, II is
said that whatever is Euf5cieui 10 put per-
son On enquiry is considered in equity as c2n-
veyinE notice"
| ind trust here. resulting from the acts Of
the parties, the estate being purchased in part
4 by kalvi, with bis own money, and the title
! in the ROYAL Patent being in the name Of the
/ original applicants.
| See Perry on Trusts, Secs. I2I, I25, I26 and
/ numerous cases there cited.
That such a trust can be proved by parol lie
/ not doubted, and is not Affected by the Statute
I cf Frauds, thcush not specially excepted in
/ tie statute
/ Ferry Trusts, Sec. l3e.
And il nav he SO proved even after the death
/ q the nominal purchaser ID Section I3s:
End. therefore. that the defendants herein,
an trustees for the use Of ksAve, the plain
tiff, Of "a /: acres Of the mauka pan Of the land
/ described in Royal Patent No. 30 Of govern
neut giants, and direct them to execute con-
veyanoes accordingly.
" 4. Kinney FOR plaintiff, c. Brown for
samuel Parker; R. F. Bickerton for HunOkaA
Sugar Co, W. c. Hololahiki for Kaalava-
makSa.