The Hawaiian gazette., 1893-04-18

OPINION OF THE COURT PER JUDD, c. J
At the July term, 1892, of this
Court an action of ejectment was
tried wherein Mrs. Hanakaulani Holt
recovered of one KeolO ivy a piece OF
land situate on Queen street, Homo
lulu, being a portion of the land
described in Royal Patent No. l73O
to Kekuhauplo.
Thereafter one Hawai- X. George
brought an action of ejectment
against Mrs. Hanakaulani Holt to
recover possession of land under the
same Royal Patent. The jury having
disagreed at the October Term, 1892,
the case came up for trial at the
February Term, 1898, of the Circuit
Court, First Circuit, Whiting, Judge,
under the Judiciary Act of 1892.
During the progress of the trial, Mr..
A. Rosa offered in evidence for the
defense the record in the case of
Hanakaulani Holt VS.. Keolo, num-
bered 1884, and requested the Court
to charge the jury that "The question
of the pedigree of the plaintiff Hawai-
K. George having been adjudicated
upon in the case of Hanakaulani Holt
VS.. Keolo on the 18th July, 1892, be
fore the Supreme Court of the Ha-
wsiian Islands, the plaintiff cannot
set up his claim in this case where it
is based on the same claim, because
he is estopped from doing So" This
was refused and the correctness of
the ruling is the question raised by
the bill of exceptions, the jury having
found verdict for the plaintiff.
The main issue in the present case
was whether Kamalo (the mother of
defendant, Mrs. Holt was the daugh-
ter of Kapu by Paele wv J, as claimed
by defendant, or of some other man
by Paele, as claimed by plaintiff.
Both plaintiff and defendant claimed
through the said Kapu, plaintiffs
claim being that he was the grand
nephew Of Kapu. If Mrs. Holt was
the granddaughter of Kapu, through
Kamalo, she would take in preference
to Hawai- K George, granddaughter.
1t was therefore essential to plain
tiff's case to show not only his own
relationship, but to disprove Mrs. |
Hollis.
On referring to the record In the |
case of Hanakaulani Holt VS.. Keolo, |
No. 3134, we find that the declaration
seeks to recover a portion of the land |
described in Royal Patent No. 1870 |
to Kekuhaupio, but the survey at
tached to the declaration and the one
introduced in the case of Hawai-
George VS.. Mrs. Holt differ, the for
mer survey calling for 2O2O square
feet and the latter calling for 91587
square feet. But as the identity of
the subject matter was not ques
toned, we may assume that the pres
ent suit is to obtain possession of all
the land that was recovered by Mrs.
Holt of Keolo and more, both surveys
being for land originally granted by
Royal Patent No. 1870.
We are asked to hold that the for
mer suit between Mrs. Holt and Re
olo settled conclusively the title of
Mrs. Holt to the land, based upon her
relationship to Kspu, and that it is
now res adjadicdta and cannot be ques-
toned by Hawai- George in his suit
against Mrs. Holt. Counsel for Mrs.
Holt says that Hawai- George is a
privy in estate with Keolo, Keolo
being Hawai- Georges tenant by suf
ference. We are aware that judg-
ment between parties binds not only
the parties, but those claiming under
or through the parties, and therefore
judgments conclude parties and priv
les IN blood, in law and in estate.
'All privies, whether in estate, in
blood or in law, are estopped from
that which is conclusive
upon him with, whom they are in
prlvity;" l Herman, EStoppel and Res
Judicatd, sections l39 and las. But We
are unable to apply this rule of law
to the present case. In the first
place, tue plea of the defendant Re
olo IN the former adjudication was
the general issue, merely denying all
the allegations in the plaintiff 5 de
claratiou. Secondly, the evidence is
not set ont in that case aud there is
Ia the case to show how ke-
olo claimed to defend her possession,
IN her own right, or under
kawaI George, or she her she set up
a title by prescription.
The only feature that throws any