The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-08-14

ands--In Banco. July Term, 1888.
KEAMALU vs. LUHAU EFT AL, EJECT
JUDD, c. J., MCULLY, PRESTON, BICKERroE,
DOLE, J.
Opinion of the Court by B[CHERTON,J
This is a suit in ejectment, and
came on for trial at the April Term,
1888, before Mr.. Justice Dole and
jury, resulting in verdict for plain
tiff for half the land claimed to
which verdict the defendant duly
excepted as contrary to the law and
the evidence, and the weight of eyi
dence.
The request for instructions by
defendant marked Second, Fourth
and Fifth, being refused by the
Court, the defendant duly excepted
and the same were allowed.
The defendant also excepted to
the instructions to the jury, that If
Luhau during the period of his al
legged adverse possession applied to
the Court of Probate for letters of
administration with view of ascer-
tanning who were the heirs of Po-
lani, the application would in itself
break the chain of adverse posses
sion.
"That would be giving up his adj
verse possession to the Court to de-
eide, and this would be SO, even
though in the application for admin
istration the applicant Luhau stated
that he and his cousin Lukahili were
the only heirs of Polani (w)," to
which instructions the defendant
duly excepted, and the exception
was allowed and the matter now
comes here on duly allowed Bill of
Exceptions.
By THE COURT: The first instruc-
ton asked for and refused, by the
Court, and marked Second Instruc-
ton" is as follows:
"No person shall commence an &C
ton to recover possession of any
lands, or make any entry thereon,
unless within twenty years, after the
right to bring such action first &C
srued. And this law would bar the
plaintiff if continuously during
twenty years, he failed to bring suit,
the land during that time being held
adversely to him by others And
under our Statutes the possession Of
the adverse claimants may have been
adverse to each other"
This instruction as asked for
would not require the defendant to
show any custer, or any continuous
possession on the part of any one,
and would bar a plaintiff, from re-
covering, even if the land had been
entirely vacant during twenty years.
This question is settled, in the case
of Rose VS.. Smith, 5 Haw 377, where
the Court holds that plaintiff in
ejectment need not show possession
within twenty years if he shows title
and no adverse possession is proved"
The fourth instruction which was
refused is as follows: "The plaintiff
has alleged that he is entitled to the
land in fee simple by inheritance
from Polani, and he must prove it.
1t is not enough for him to prove
that he is the heir of Kaneakua, or
of some other person, who was the
heir of Polani; it must be proved
that he was Polani's heir" This ex
ception is disposed of by Elikapeka
VS.. The Ookals Sugar Company, 4
Haw. 625, where the Court say
1.-The defendants counsel moved for
the direction of verdict for the de-
PENDANT, because the plaintiff claimed
as heirs of the patentee, and proved
that they were heirs of his heirs.
"We think this was not such de-
feet in pleading, if it were defect,
as to entitle the defendant to relief
here.
1--WE think the plaintiff may be
termed by privity the remote heirs
of the patentee."
The fifth instruction which was
refused is as follows: "There was no
law of inheritance before 1858, by
which mother could inherit the es-
tate OF her daughter, or the collateral
heirs of the mother either"
This exception is answered by the
Act of 1850, to regulate the descent
of property, which provides for such
Inheritance, the portion of Section
1448 of the Compiled Laws, refer
ring to this question being IN exactly
the same words as the Act OF 1850,
and taken from it.
Counsel seems to have overlooked
this fact.
Luhau's petition for sdministra-
ton shows that Polsni died after
1850. viz: in 1854.
The instruction given BY the