The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-06-10
Supreme Court of the Hawaiian Islands
In Eauitv
BECKY X. KAM vs.. W. NJ. MAHukA EFT. AL.
Oplnion q CAmeeRor Jmid.

This is bill in equity to declares trust
1t appears that in 1877, one Mathuselah
Mahuka petitioned the Land Commission
for an award to him of house lot in Ho-
nolulu lying between King and Merchant
streets east of Fort street The Commits
sion took evidence and awarded the land
to him by award No. I'll The heading of
the award is HMahuka and Kaai" but the
land Is awarded to "Mahukan
In lS49 the land was appraised to ascer-
tain the amount to be paid in Communication
OF the Government rights therein. The
written report of the appraisers designates
the land as 'Mahuka's house lot A
Resolution of the Privy Council of that
year is produced fixing the Government
Communication at $50, speaking of the
land as Mahuka's; and on the 10th of
November, 1S49, the King signed Royal
Patent for this lot to Mahuka his heirs
and assigns.
1t is in evidence that Mahuka used it as
a residence, having several houses upon it,
and later bought the adjoining lot on
which was large house and he then threw
| the two places into one and continued to
use the lot as residence. He died in 1881
and the defendant is his son and heir.
1t also appears that Mahuka had
brother named Kaai who died in 1859 and
left son named Simon K. Kaai who died
in 1884, leaving the plaintiff, his widow
and sole devisee. 1t is in evidence that
Kaai senior came from Waikapu and lived
on this lot for few years with his brother
Mahuka until he was taken to live as a
servant with Prince Lunalilo at Pohukaina
now part of the Palace premises His
son Simon lived some of the time on this
lot, but his residence was mainly at the
Fort and later at Oahu Prison where he
was under jailer After this he removed
to Kona, Hawaii, and the latter part of his
life was spent at his residence at Kapala
ma. While a member of the Legislature
in 1874 6 he lived, while the session lasted,
ON the premises in question and was &C
customed to entertain his fellow Repre-
sentatives there. There is no evidence
that Kaai senior ever claimed an interest
in this land from Mahuka, nor did Simon
claim it during Mahuka's lifetime After
Mahukas death he was appointed admin
istrator and told the widow that he had an
interest in the land In 1888 he included
an undivided half interest in this land in
mortgage.
There was introduced in evidence con
trary to the objections of counsel for
defendant the evidence before the Land
Commission. It is as follows:
''Claim I'll, Mahuka, Feb H.
Hoomeapule sworn This place is in
Honolulu bounded Waikiki side by Kalai
mokus land; mauka by Broadway; EVA
by lot of S. Reynolds got from Swinton;
makai by Merchant street. 1t is enclosed,
with 5 houses Claimant lives there, and
oil Ia Iie fofh
and uncle (AIalawai and Keau) occupied it
in the time of Kamehameha l. When
they died it fell to claimant with his
brother and sister who is now dead.
John Hall sworn. / know this place
and the bounds are the same as those des-
cribed Claimant admits his brother Kaai
any counter claim or other claimant than
Kaai claimants brother"
1t is urged that the Land Commission |
was court of competent jurisdiction and |
that the evidence upon which this judg |
ment was based cannot be introduced to |
controyert their Judgment Soon after the |
dissolution of this Commission, the Su-
preme Court admitted the evidence taken |
before the Commission to show that the |
award as recorded was not the same as
agreed upon by the Commission and that |
the clerk had made an error in recording |
the judgment of the Commission. 1.-THE
record of the Land Commission, say the
Court, was admitted for the purpose of
corroborating the evidence of error in the
record, or error in the transcript" This
was in the case of Bishop VS.. Namakalaa,
in Hawaiian 23S, decided in
nine years after the adjudica-
ton of the Land Commission.
[ cannot 90 any farther than this. Dur
ing the twenty-five years that have elapsed
since the date of that decision all the
members of the Commission have died
and the reasons grow stronger from day
to day why the awards of the Land Com
mission should be treated as final.
One thing is clear, the land was awarded
in the body of the award to Mahuka alone
The land was treated as his by the APP
praisers and by the Privy Council He
held it under Royal Patent from 1S49 to
1SS1-32 years as its undisputed owner
The fact that the evidence before the Com
mission shows that Kaai senior, his broth
Ell, had, if he chose to insist upon it, right
to have his name inserted in the award as
a tenant in common with his brother Ma
huka, Is not sufficient to raise trust in
Tor him. he may have, for all we
know, Telinquished his claim by an unre-
corded deed now lost. 1t is to be pre-
sumed that he was aware of the award to
Mahuka alone and that he consented to it.
His whole conduct and that of his son and
heir Simon is in accord with this view.
The occasional use of this lot as residence
BY Simon is fully accounted for in my
opinion by the relationship of nephew
which he sustained to Mahuka and which
among Hawaiians would weigh for great
leal
The heading of the award is to Mahuka
md Kaai, but it is a mere heading and the
,enor of the award throughout contradicts
On a careful review of the case, think
he bill should be dismissed.
S. B. Dole for plaintiff; E. Preston for
defendant.
Honolulu, April "a, 1885.
0S.,,.,,I TIN.,..-4. -.,,,.,,4