The Hawaiian gazette., 1890-03-11

JUDD c. j., M'CULLY, BICKERToN AND DOLE, u.
Opinion of Chief Justice Judd,
appealed from, the Jury being
lCGiUed.
This is an action of Ejectment
brought at the April Term 1887 to
recover possession from one John
Hamauku of a piece of land on
King street opposite KawaiahaO
Church.
The then defendant demurred to
the declaration in that it did not set
forth the nature and extent of the
estate claimed by plaintiff. AT the
July Term, 1887, the plaintiff, with
the leave of the Court, filed an
amendment to the declaration. The
case went over the January Term,
1888, it not being reached. At the
Special Term, February, 1888, the
parties waived jury. On the 9th
March, 1888, the defendant died and
plaintiff filed, on the 9Th Novem-
Der, 1889, suggestion to this effect,
and moved that Paalaa, widow, and
Edwin, IOkepa and Keoni, minor
children of said ]. Hamauku, be
substituted as defendants. The
motion was granted and service
made upon Paalaa and on w. o.
Smith the Probate guardian of the
minors.
By the amended declaration
plaintiff claims title to the premises
in dispute, in fee simple, by virtue
of clause in a deed of Hama Haa-
lilo to John Hamauku the original
defendant dated the 10Th April
1869.
To this the defendants now
demur that the deed referred to
discloses no title in the plaintiff, or,
if any title, not the title claimed by
plaintiff.
The plaintiff bases his claim to
the premises on the deed to the
defendants ancestor John Hannah
ku. This deed is made by Hama
Haalilio and conveys to st. John
Hamauku all the grantor's land on
the Island of Oahu and particularly
describes the various parcels, some
five in number, in consideration of
fifty dollars paid to her by said
John Hamauku and describes him
as her "keiki" which may mean
son or nephew. He was, / believe,
her nephew and she had no child
rem of her own. Among the lands
granted is " the piece of land at
Kawaiahao on King street, mauka
of the church, which was awarded
in my name being Royal Patent
No. and the area being
acre, more or less, excepting how
ever that portion on the north Cor
right hand) portion of the house
lot where the dwelling house
stands, that shall be for young
Hoohuli and his heirs, and if he
shall die without heirs then it shall
belong to ST. John Hamauku and
his heirs. The annual receipts and
rents of the place mentioned in this
paper decd shall belong to the one
whose name is mentioned as stated
in this paper (deed.) And the said
place cannot be sold as long as they
both live on good terms and are
not opposed to each other"
The claim of the plaintiff Peter
Kahoohuli is based upon the clause
of the deed above recited.
/ consider that this clause ex-
cepts out of the estate granted to
Hamauku the lot where the dwell
ing house stands. 1t is not a tech
nical reservation, for it does not
create new right in behalf of the
grantor out of the estate granted
and which did not exist as an in
dependent right before the grant.
See Tiedman Real Estate, S843.
Chancellor Kent defines a reSer-
walton to be clause in deed
whereby the grantor reserves some
new thing to himself issuing out of
the thing granted and not in esse
before.
Kent, p. 46S.
A common illustration would be
the right of the grantor to take
wood or water from the granted
premises for a limited term.
The clause in question creates an
exception, for it withdraws from
the operation of the conveyance
some part of the thing granted,
which h,f for tho oyoontion would