The Hawaiian gazette., 1886-09-14
Supreme Court of the Hawaiian Islands
July Term, 1856. Jury Waived.
CHING On AND MARY CHING OK VS.. AMANA AND
HoPAI YET.
Opinion of chef Justice JUDD.


This is an action of ejectment, for the possession
of two tracts of land, situated at Waimalu, Eva,
Oahu, embraced in Royal Patent No. 4472, to one
Kamanaoulani, containing ~ Is acres.
To the complaint Hopai Yet pleaded the general
ISSUE Amana was defaulted; but, by consent, de-
fault was taken of, and he answered during the
trial. disclaiming as to the portion of the premises
IN possession of Hopai YETI and as to the rest of
the land he pleaded the general issue.
The point Is made that the defendants having
been sued jointly, Judgment cannot be rendered
against them separately, and SO the judgment
should be of non suit.
This is an Interesting question of practice. 1t
cannot well be decided without reference to the
facts of the case. / find from the evidence that
the Patentee of the land died about the year 1856,
leaving two daughters, Napuahola and Nahauhau,
as his sole heirs at law.
The younger, Nahauhau, died soon after this,
unmarried and childless Napuahola married one
Joseph Manuel, and bore a number of children to
him, but they all died but one, Mary, the plaintiff
Napuahola died in 1885, and her heir at law is the
plaintiff, Mary.
1t seems that on the Both July, 1877, Joseph Man
uel sold this land to Amana, defendant, and Asee
and Apo. The interests of Asee and Apo, have, by
successive conveyances become vested in the de-
PENDANT, Hopai Yet.
The deed of Joseph Manuel conveyed nothing
except his curtesy, as father of the child, Mary,
for the title was in Mary by inheritance from her
mother, Napuahola Lately the two defendants
Amana and Hopai Yet, have divided both pieces of
land between themselves by deeds of partition
Whatever claim they have to the land is from the
same source, the deed of Joseph Manuel. Under
the authorities, l think the plaintiff can recover
judgment against the defendants, severaly for the
portions of the estate held by them, although they
were sued jointly
In jackson er deni Haines ct al vs. Woods ct
al, Johns, 27S, Chancellor Kent so held. He
says ITO dismiss the plaintiff, and turn him
round to separate ejectment against each defend
ant, would be nothing but vexation to all parties;
it would be applying to torts the rule applicable
only to contracts that, If you declare for joint
possession, you must show one." In Fisher VS..
Hepburn, As n. Y. Il, sit is held that when there
are different claimants each claiming distinct par
cells of the real estate In question: but all denying
plaintiffs rights on the same ground and claiming
title from the source, 1t is proper to Join them
in the same action"
In Den VS.. Snowfall, ID n. j. %, it was decided,
"that, when two more persons, holding distinct
and separate possessions of the premises mentioned
in the declaration, united in the declara-
ton, and Jointly enter into the consent rule and
plead, Judgment may be given against them sep
arately; if their separate possessions found by
the jury"
plead Jointly, but l cannot see that this would
make any difference according to our practice.
Certainly plaintiff in eiectmeut may recover to
the extent he has proved. Nahinai Va. Lai, 8 Ha-
waiian Z. do not think the plaintiff is charged
with notice of the deed of partition between the
defendants, far as to hazard his recovery of the
land by suing the plaintiffs jointly. In Sedgwick
and Wait trial of title TO land, Sec $780, the au-
thors say: "At common law, in eiectment for
lands distinct parcels of which were in the several
occupation of different persons, direct objection
to the misjoinder could be made, as by plea in
abatement, but the parties might apply to the
Court to be allowed to enter into the consent rule,
and plead separately. But even if they pleaded
jointly, evidence might be given on the trial to
show, that the defendants occupied distinct par
GELS and in such cases. if the plaintiff was entitled
to recover there was verdict and judgment sever
orally for the parcels respectively occupied by the
defendants"
The plaintiffs made deed of the premises to
certain Chinese children, reserving life estate
therein to themselves and the survivor.
This estate is sufficient upon which to recover in
ejectment against defendants.
Plaintiff may have Judgment against Amana for
the portion of land in his possession and against
Hopai Yet for the portion in his possession, and
costs, except $40 which must be paid by plaintiff,
as the terms upon which an amendment was al
lowed.
Magoon and Kinney for plaintiffs; Brown and
Avery for defendants.
Honolulu, July 81 1886.