The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-03-09
nEroAr JUDD, c. J., NocUrIr AND PRESTON, !. ).
Opinion of ne Court per JUDDC.L.


OPINION Of me Court per JUDD C..
The case comes to this Court on the follow
ing statement by Mr.. Justice Preston from the
present term.
"This is an action Of eiectment 10 recover one
undivided moie:y of parcel Of land contain
ing one hundred and twelve acres, situate in
Kekaaele and Kaiuiknoiki, Hamakua, Hawaii,
which the plaintiffs claim as the heirs at law
OF one Hail, one of the patentecs Of the land.
THE plaintiffs produced Royal Patent
| (Grant) No. 2439 issued TO ri and the said
Hail, tLeir heirs and assigns, and claimed that
the patentees were tenants in common.
The defendants on the contrary claimed
that the patentees held the land as joint ten
ants.
"Whereupon counsel for the parties re-
quested me to reserve the question for the
consideration of the full Court, pursuant to
Section $50 of the Civil Code, which con-
scented to do
''The question therefore is: Did the said
Hail and Pi hold the land as tenants in COM
mon or as joint tenants?"
BY TIL CouRr:-it is somewhat remark
able that a question so important as this, in
volying titles 10 land all over the Kingdom,
should not have been earlier presented to the
Court for adjudication.
Saws Washburu, in "Real property" p. 407
S: "By the common law in England, where
an estate is conveyed to two OF more persons
without indicating how the same is to be held,
it Will be held 10 be in joint tenancy, upon the
ieudal idea that the services due to the lord
should he kept entire"
But the common law is not in force IN this
Kingdom pr0Dri0 rig0rs. 1t has frequently
been so held by this Court. That we are, how
ever, free TO adopt the reasonings and princi-
Piles Of the common law is undoubted. This
authority is expressly conferred upon the
Court by Sections II and s24 Of the Civil Code.
To do this we must be satisfied that the prin-
ciple to be adopted is founded in justice and
not in conflict with the laws and customs of
this Kingdom"
Upon careful consideration we think it would
be unwise 10 adopt the principle contended for
by defendants.
Mr. Washburn says, id. 4Os: "The policy
of the American law is opposed 10 the notion
Of survivorship, and therefore regards such
estates as tenants in common. In many of the
States the rule of surviyorship is abolished by
statute, except in case OF joint trustees, while
in others all estates to two or more persons
are taken TO be tenants in common, unless ex-
pressly declared to be joint tenancies by the
deed or instrument creating them, with sim
liar exception of estates TO joint trustees"
In this Kingdom, as in the States, there are
no feudal teuures existing, requiring services
from the land holder to the lord paramount.
The reason therefore for the rule has no exist
ence here.
The most natural and obvious view would
be that where land is conveyed TO two or more
persons, it was their expectation that it should
descend to the heirs of each of them and not
to the survivor of them. We believe it TO be
true also, that such conyeyances have been
generally understood and treated liz this King
dom as creating estates oftenanCies in common,
and we ought to hold for the protection and
peace of land titles that such is the law of the
country.
The conveyance before us is a Royal Patent
or Grant 10y the King, representing the Gov
eminent, to two natives who have no apparent
relation to each other, of ll2 acres of land at
Csc. per acre. Certainly when these men bar
gained for the land, if they had supposed that
by the fact that they took this land by virtue
OF the same conveyance, they thus were be-
coming joint tenants, and that the land would
20 TO the survivor, it would have been
quite competent for them TO obtain separate
grants. Moreover we think the words in the
haJeadum clause to them and their Qaua)
heirs, or as it may be translated "the heirs Of
them two, have force in favor of the conten-
tion that a tenancy in common was intended.
We are therefore of the opinion that Hail
and Pi, the patentees held the land as tenants
in common and remand the case to Mr.. Justice
Preston to be decided in accordance with this
view.
Kinney 81 Peterson for plaintiffs: l., A.
Thurston for Honers, A. Rosa for Mele
Honolulu, February oath, 1856.