The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-05-22

EEroEE Judd. c. :, M'CULLy, PRESTON, AND
BICEEsIoN, ). J..
dole J. having been one Of the
Trustees did not sit.
0BfniaH cf the Court 5y PREsT0NJ.
This is M action Of ejectment to
recover possession Of q piece Of land
described As 1.-The Iii of huunaha-
welu, situate AT Waihee, Island Of
Maui" the boundaries whereof are
set out in the complaint
The case was tried by the Chief
Justice and foreign jury at the last
January term, when q verdict was
found for the defendant.
The plaintiffs excepted TO certain
instructions Of the presiding Justice,
and also to his refusal 10 instruct the
jury as requested by the plaintiffs.
The plaintiffs claimed title under
an award Of the Land Commission
No. $3.50 B, to W. c. Lunalilo, Apana
q, - uiaina Ahikui."
The defendant claimed under a
conveyance from the trustees, dated
the sixth day of December, 1880,
whereby the trustees conveyed TO
the defendant all the right title
and Interest Of the said trustees IN
der said will, in and to all that tract
of land situated in Waihee, Island
Of Maui, known as the Iii OF Ahi-
kuh, containing an area of 1924
acres, more or less, and described in
Land Commission Award Ne. 1853
B, AR. 81"
The defendant claimed that the
land in dispute was q Jeye Of the HI
Of Ahikuli and passed by the deed.
The plaintiffs claimed that the
land IN dispute was an Iii kit, and
belonged TO them as the owners of
the Ahupuaa Of Waiehu, or if a lele
Of AhikuIi that it did not pass by the
deed. not being mentioned and not
being at the date Of the deed known
TO be such LeLe
The Court instructed the jury, (at
the request OF the defendants):
I The burden Of proof is upon
the plaintiffs to show good title to
the land in question.
The plaintiffs must recover on
the strength Of their own title and
cannot recover on account of mere
weakness in the defendants title.
ST The deed from the plaintiffs
70 the defendant passed all the land
known IS Ahikuli.
sThe grant Of an Iii by name
viii pass all Lsles forming part of
such IL.
"If the jury find that the trus-
tees knew kuuRahawelu was q Lele
OF Ahikul, the only way it could be
prevented from passing under the
deed was by an express reservation. "
The Court also instructed the jury,
6 "H the land claimed is a lele OF
Ahikuli, it passed to the defendant
by force and effect Of its deed Of De-
eember 9th, 1850, if unexplained.
- do not think that the words
in that deed referring to the Land
Commission Award are merely de-
scriptive of the source of title, but
think that those words describe the
estate conveyed by the deed"
Counsel for the plaintiffs centended
that the instructions numbered and
were inconsistent with that num-
bered 6, and that consequently a
new trial was matter of right,
whatever instructions were correct,
since il cannot be known which were
followed by the jury.
That whether or not this out
lying EeZe, not being described or
referred to in the deed Of conveyance
was included therein, is not to be
determined by any expressions used
in the deed.
That the grantors having con-
veyed - all their interest in that tract
Of land known as the Iii of Ahikuli, -
it Is material when such words
are used TO ascertain what was at
the date of the deed and not an
GENTLY known as such Iii. If this
III was 50 known it passed, other
wise not.
By THE CoURT.-It appears to US
that the jury have found that the
land in question is a Jele of the Iii Of
Ahikuli. and was known to be such
by the defendants grantOrs at the
date of the execution Of the deed of
December, 1880.
We are Of opinion that the third
and fourth instructions given were
correct, and that the Iele passed by
the deed.
The conveyance of all of a party's
interest in property to a purchaser,
for value, passes every interest
vested in him.
Elphinstone on the Construction
Of Deeds, p. 2O4, and notes thereto.
Consequently this lele and the re-
version passed.
This being our view, the addition
IF the words off unpxpIained y IN