The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-03-25

InlS Is an action OF electmelt.
The plaintiff was the grantee of the
heirs of the patentee of the land by a
recorded deed The defendants claim
under an unrecorded deed from the pat
entee dated in 1867 to the defendants, con
stituting "huin (irm), and show that
some of the defendants live and are sup
ported on the land, and cultivate parts of
the same yearly, and fence what they cul
tivate; and that there are two houses ON
the land which have stood a long time.
The plaintiff claims that this unrecorded
deed is void under Sec. 1862 of the Civil
Code which provides that it 'shall be void
against any subsequent purchaser in good
faith and for valuable consideration not
having actual notice of such conveyance,
whose conveyance shall be first duly re-
corded
To make the second deed hold, the clai-
mant under it must purchase in good faith,
for value, not having actual notice of the
first deed.
The New York recording act provides
that ian unrecorded deed shall be void
against subsequent purchaser in good
faith and for valuable consideration of
the same real estate or any portion thereof
whose conveyance shall be first duly re-
corded
In Tutae VS.. Jackson Wend 213-27, the
leading case in the Court of Errors in New
York, decided in 1880, under the latter sta
tute, it was held that actual possession of
the land sold under an unregistered deed
is constructive notice to the purchaser and
imposes upon him the duty to inquire as
to the rights of the person in possession,
and that as to him the purchaser cannot
have the benefit of the recording act, be-
cause not deemed a purchaser in good
faith for value This, decision has been
followed and never since questioned in
that State.n
See BroEH vs. TolteaiHg g. n. Y. 76. To
sustain his view the chancellor cites the
opinion Of Chief Justice Parsons in Nor
cross VS.. Widgery 2 Mass. sos. Thereafter
however, and prior to the case of POmroy
vs.. SteUs1ts II Met 244T cited by plaintiffs
counsel decided in 1916, a statute was
passed In Massachusetts which expressly
provides ''that no conveyance of real estate
shall be valid and effectual against any
person other than the grantor and his
heirs and devisees, and persons having
actual notice thereof, unless it is made by
deed recorded as the statute directs
| And under this statute it was and is held
in Massachusetts that no implied or con
structive notice of an unregistered deed
will give it validity against subsequent
purchaser.
In the Wend. 257 id. Chancellor Wal
worth refers to Doe VS.. Alsop Barn. and
Aid 142 decided under the Middlesex Re
gistry act Anne, Chap. 20, where the
holding was like that in the Massachusett;
cases, and says that the act is imperative
that the conveyance shall be void agains
any subsequent purchaser, and that thu
words bona tide purchaser are not used il
the act; and refers to similar decision
in Virginia where the law and the decision
were subsequent changed.
See also Daniels vs. Davidson 16 Vcsc,
26S, II Yesey 1873, where the New Yorl
doctrine is sustained. In equity aud a
common law without reference TO specia
statutes; and, it seems to us, upon reason
good faith requires purchaser of land t.
take his title subject to the claims of par
ties in possession when he buys. Unde
our statute if the party in open possession
is unable to show actual notice of his I'M
registered deed to subsequent purchaser
his possession is constructive police b
such purchaser OF all his rights, and b
cannot be disturbed therein.
In the case at bar the land was agricul
tural land. OF such land, the possession
as shown, under deed, conveying tn
whole, is sufficient to constitute construc
tive notice of the defendants, rights to th
whole by many authorities both here ant
in the United States. See Hd1le VS.. Wal
hes Sugar Co., 4 Haw'n 637
We have lately fully considered til
nature of adverse possession OF simila
lands in this country and fully examine,
the line of authorities cited by the plain
tifs counsel under this point. We do no
deem it necessary to reexamine the sam
now. See Mahukaliilii ct. al. VS.. Hikas
lani ct. al
For these reasons the exceptions ar
oyerruled
W.R Castle for plaintiffs; F. NJ Hate
for defendant
Honolulu, March 10, 1885.