The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-01-16

acknowledged or recorded, and there
were any witnesses to any alleged
execution thereof, and that there
never was any consideration there
for; and further
"That the complainant entered
into possession of the lots OF Rich
ard street set off to her in said deed
of partition, the same being then
valued at $500, and enjoyed the
same and the use and occupation
and the rents, issues and profits
thereof for a considerable time, to
wit, upwards of three years after the
execution of said deed of partition,
and afterwards by deed dated Octo-
Der Is, 1890, and conveyed the same
for valuable consideration, to wit,
the sum of $4,000, to one S. G. Allen,
purchaser thereof for a valuable
consideration, and without notice of
said document or of anything by
reason whereof said partition might
be void or voidable. That the com
plainant enjoyed the use and benefit
of the proceeds of said lot and has
never paid or rendered the same or
any part thereof to the defendant
nor reimbursed nor offered to re-
imburse the defendant for any inter
est which she the defendant might
or ought to have in the said lot or
the proceeds thereof, nor abandoned
any rights under the said deed of
partition, but on the contrary, long
before the commencement of this
suit, elected to retain the said lot
and still elects to retain the proceeds
thereof.
"That since the execution of said
deed of partition all of the land and
parcels of land therein mentioned.
excepting the parts therein set off of
to said Kalanikapu, deceased, have
been conveyed by proper deeds to
purchasers for value and without
notice of said document, or of any
thing or matter by reason whereof
said partition might be void or void
able, and are now held and owned
by such purchasers"
The evidence of the Chief Justice
is that when he was in practice he
drew this document, that it is in
his own handwriting, and that the
signature is the signature of J.
Moanauli; he also identifies two
other deeds dated the same date as
the document in question as being
drawn by him these two deeds were
acknowledged and record ten days
after they were executed); but he
cannot say that either of the three
documents were executed in his
Office, but says he handed them to
Moanauli.
This case turns on the question,
Was there a delivery and acceptance
of this document in question? The |
document itself, together with the |
evidence of Robert French and the
plaintiff, would indicate that Moa-
nauli intended or had it in his mind |
to convey this piece of land to the
two women. Did he change his
mind and simply lay his paper aside?
It is strange that the other two
documents executed the same date
should have been acknowledged and
and this one not. There
must have been reason for it; if he
had delivered it to Manaku for plain
tiff and her sister as claimed by
he certainly would have
it. There is not one
iota of evidence that there was any
such delivery to Manaku, or that
Moanauli ever spoke of this docu-
ment to either plaintiff or her
sister or his daughter the defendant,
or her husband Manaku; on the
contrary the plaintiff says she never
heard or knew of it until Mr.. Brown
told her he had it. The evidence
shows that Moanauli lived on this
land himself and afterwards leased
it to Mr.. Brown, and exercised all
acts of ownership over it. How this
together with other deeds
of Moanauli's property, came into
the possession of Manaku, we have
no evidence of; he is dead and can
not speak. He was, after the al
legged delivery, appointed admins
traitor of Moanauli's estate, and al /
though the safe was examined some
time after Moanauli's death and no
deeds of his lands found in it, yet it
is in evidence that Manaku had the
key of the safe between the time of
Moanauli's death and the exanina-
ton of the safe. Mr.. Brown says he
got this document from Manaku,
with other papers, but cannot re-
member what was said at the time.
1t may be quite possible that this
paper may have been with the others
and Manaku not know it, for if he
had wished to conceal it, which GER
tainly it was his interest to do, he
only had to destroy it, and that
would be the end of the matter. The
evidence is that Manaku was not the
agent of either plaintiff or Moanauli
at any time. It is absolutely neces-
sary that it be shown that there was
a delivery and acceptance during the
lifetime of the grantor, and that the
grantor parted with all legal control
of the document and the land. These
propositions are not sustained In any
way by the evidence in this case; we
are left entirely to Prescriptions.
In Anderson vs.. Anderson, "a n.
E. Rep. 1896, father executed and
acknowledged two deeds to his sons.
put them in box in which the sons
oIco bopt ,noporr md told q tb;p1 L