The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-08-04

Judging the plea in abatement bad
Honolulu, July 1st, 1892.
OPINION OF THE COURT APPEALED
FROM.
This is bill in equity for parti.
ton of certain lands on Maui
known as Waikapu and Pulehunui,
containing say $4,000 acres. The
defendant corporation not acting
Geo. w. Macfarlane the owner OF
one-half of its stock appeared by
leave of the Court and filed a plea
in abatement and a demurrer.
The defendant corporation had
brought an action at law against
the plaintiff corporation to recover
possession of the lands in question
according to its title therein and
for damages resulting from custer
therefrom. This suit is now await
ing hearing by the Court in banco
on certain pleadings made. The
plaintiff then filed it's bill for parti-
ton alleging that it and the de-
PENDANT corporation are seized of
and hold together as tenants in
common, each one an undivided
half of the said lands; and alleging
inter ALA that the estates of both
plaintiff and defendant are in fee
simple, that both parties are in
possession of portions of the prem
isss; that said premises lie between
other tracts of land owned by the
plaintiffand defendant respectively;
denies the custer alleged in the
suit at law; AYERS willingness to
divide the land and sets up a parol
agreement for partition of the
premises made between the grant
ors OF plaintiff and defendant re-
spectively, ratified by plaintiff and
defendant and that plaintiff and de-
PENDANT have for a long time sepa.
rately occupied different portions of
the premises, each occupying the
part nearest its own adjacent land
but without any dleeiIiiaI of title ~
ene oLn.; and AYERS that plaintiff
has improved the portion occupied
by it by cultivation, leading water
thereon and building a railroad and
other improvements, and has re-
reived profits of its own cultivation
and denies that it is liable therefor
to defendant but is ready and will
ling to account to the extent of its
legal liability; that plaintiff is in
formed that defendant has received
amounts for pasturage of live stock
on said premises and from cultiva-
ton thereof. The prayers are ~
for summons against defendant and
for an account of all rents and
profits received by it from others;
(2) that partition may be made of
the premises; (3) that said partition
may be comfortable to the separate
occupation of each party so far as
the same can be equitably done; az
that said partition may be made so
that the improvements made by
plaintiff be set off to it; (5)
that an account may be taken so far
as the liability to account exists and
that matters in controversy between
said parties relating to the liability
to account may be settled; (6) that
the defendant may be enioined
from proceeding further with its
action of ejectment, etc.; az for
costs and other relief.
The demurrer is to the various
prayers for relief and raises the
crucial question whether there is
Jurisdiction in this Kingdom to en-
terrain matters of partition of real
estate in equity.
1t Is to be remarked that by the
disclaimer of the present plaintiff in
the ejectment suit and by the alle-
cations in the present bill the title
to the land is admitted-the plain
TIL and defendant corporations are
the owners of the land, in moieties,
as tenants in common. Both par
ties are DESTROYS of a partition; the
matters remaining in issue are C)
I'm what manner the partition
should be made and (2) the dam.
ages.
l am not at all convinced by the
argument Of defendants counsel
that matters that are mentioned in
our meagre code as being cogniza-
BILE by Justices of the Supreme
Court cat chambers" may not also
fall into one or the other of the classes
into which the jurisdiction of courts
Is divided. Section SAT with its
amendments may be read in this
way: "The Chief Justice of the Su-
preme Court is the Chancellor and
the Associate Justices are Vice.
Chanceliors of the Kingdom and as
such shall possess all the powers in.
cident to those offices at common
law. They shall have power \
generally to hear and determine all
matters in equity, etc."
The jurisdiction in equity thus