The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-06-16

bic to ascertain the particular sub
ject matter to which they apply,
without infringing upon the rule
which prohibits parol evidence to
add to or contradict the language
of written instruments. The object
of oral evidence In such cases is to
ascertain the intention of the par
ties as expressed in the writing and
not to make the deed operate upon
land not embraced in the descrip-
tive words"
In McNitt W.. Turner, 16 Wall,
364, the Supreme Court of the Uni
ted States say, where the descrip-
ton of the land would be equally
applicable to another tract in
another county, "proof of the
ownership by SPOTS of the
tract sold was admissible to
locate the description upon the
proper premises and to remove the
ambiguity which was found to ex-
ist."
Mr.. Justice Miller in Deery VS..
Cray, 10 Wall, 269 said, "Now un-
less the deed is so fatally defective
as that no subsequent competent
evidence could make it good in
point of the description, the court
did not exceed its just discretion in
permitting it to be read" tIn
other words, if the uncertainty was
patent ambiguity, an uncertainty
which inhered in the essence of the
description, rendering it incapable
of being applied to the subject mat
ter, then the deed was void abso-
lutely and should not have been adj
mitted." OF this character was the
land described in Fenwick VS..
Floyd's lessee Gas part of r. manor
containing 25I acres more or less"
The manor of r. contained 1000
acres and nothing could be shown
by which the 251 acres could be To-
Gated or identified and the descrip-
ton was a patent ambiguity.
l Harris Gill 172.
So in Hubbard VS.. Aldrich, s y.
III. 81, the power of attorney au-
thorized the sale by bank of two
pieces of land in Colebrook, N. H.
belonging to the bank, one to Lum-
bard and one to Hilliard. The
court held the sale void as there
was nothing to show which piece
was to be conveyed to Lumbard and
which to Hilliard.
/ I[lnn,nIIn roI
27S the court held that deed was
void for uncertainty because the de-
scription of the premises would fiji
equally we'll four different parcels Of
land. No precedents are cited ir
the opinion and it does not seem II
be sustained by much authority.
See Emma Kaleleonalani VS.
Trustees Lunalilo, 4th Haw. 80
American Bible Society VS.. Pratt
9 Allen 100. The cases are numer
Gus sand not easy to reconcile. Blu
we think the trial court was RICH
in admitting the deed and evidenc
to identify and locate the lots O
land intended to be conveyed. w
ONSIIulC
The court refused to charge tn
r jury that Kalaikuewa and her pri
vies are estopped to now set up he
deed against the defendant by rea
son of her silence at the time tn
subsequent deed was made by Kee
2 likolani to defendant.
: This was right, for we do nc
: think an estoppel was made out.
An ingredient necessary to an es
3 toppel is that the silence must b
t with a knowledge of the person
S own rights, and it fails in this cas-
3 when we consider the relation Q
Kalaikuewa to her chief Keeliko
lani. The conveyance to her
though in the form of deed for
3 valuable consideration, CS1.00) wa
. undoubtedly gift or settlement
3 upon her favorite s'kahu," or com
panion servant, and il is quit
3 likely that this old lady may hav
supposed that what the chief CAV
1 her she could take away again
Understanding as the court does tn
s circumstances, we require that TIL
F., facts should show silence with in
; tention to deceive such as woult
amount to constructive fraud
8 Moreover the deed to Kalaikuewj
3 was on record when the deed to de
l PENDANT was made, and defendan
cannot now say that he was igno
rant of the true state of the title
t If, as claimed by the defendant, tn
s record OF the deed of "two lots il
/ Kaakopua" was too indefinite to ap
2 prise defendant that the land h
: was negotiating for had alread,
: been conveyed, it certainly shoult
p have put him on inquiry and h
: cannot say that he was destitute o
all means of acquiring knowledg
? of the true state of the title. Thi
t is sufficient to dispose of this point
: The court was asked to charg
8 the jury that the deed of Iii of Kaa
: kopua to Kalahoolewa being record
ed prior to that of Kalaikuewa, con
, veys the property in question anC
that plaintiffs cannot recover. Thi
, was properly refused, for an inspec
3 ton of the two deeds shows tina
, they were drafted by the same per.
} son, signed at the same time, wit
s messed by the same persons, &C.
lynnuyIo6 of tho capon firnn ha