The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-04-18

i page of the registry. Both documents
were acknowledged before Thomas
/ Brown, Registrar Of Deeds. The
mortgage of kalo to Fanny Young
was afterwards released, and another
mortgage was given by her to Mrs.
| Borres, and under the last one men
! toned, the foreclosure proceedings
were had through which the plaintiff
| claims title.
We may fairly start from 1874. the
time when defendant and kalo exc
cuted the mortgage to McInerny of
Lots and 3, being the mauka por
ton. The record of this mortgage
was notice to the world that they
claimed to be the owners of these two
lots. When the payment of this
mortgage was demanded defendant
in her evidence says, HE asked Us TO
pay what we owed, and we replied
that we had no money" it then be-
came necessary to raise the money,
and then they certainly divided the
mauka portion, Kalo giving mort
gage to Fanny Young of her portion,
Lot 3, and defendant giving a deed
of her portion, Lot 2, to Fanny
Young; in that deed defendant re-
cognizes the other adjoining lot as
belonging to Kalo, and describes the
lot she was selling as the lot convey
ed to her by Kekipi; this deed was
put Oh record, and was notice to the
world that she only claimed the lot
she sold. and was declaration that of
the mauka portion Kalo took Lot 3,
and she took Lot 2. The defendant
in her evidence speaks of her visit to
the Registry Office in company with
Kalo to arrange some papers in con-
nection with her land and talking
with Mr.. Brown the registrar; these
| papers must have been the mortgage
from Kalo and the deed from her
self; the evidence points clearly to
| this fact. This certainly was notice
to any purchaser of lot 3, searching
| the records, that defendant had no
claim to it, and that it was the prop
erty Of Kalo. But defendant denies
that she executed this deed; her evil
dence is not positive; but she tells
many facts which OF themselves
might well be held to prove her exc
cltion without the aid Of direct and
positive evidence from any other
source. But we have the positive
evidence of Mr. Lazarus, subscrib-
ing witness to the deed, who was at
the date of the execution of the deed
a clerk and interpreter in w. G.
Jones' Office where the deed was
drawn, and he (Mr. Lazarus) testi
fies with a minnteness of detail to
the execution of the deed, and to the
fact of his having got into a quarrel
with Mr. Jones his employer, be-
cause of having told her at the time
of reading and interpreting the deed
to her before signature, that she was
being taken in and was selling too
cheaply.
To have found the verdict that the
jury did, they must have found that
the defendant did not execute that
deed. We are of opinion that such a
finding cannot be sustained in the
face Of the evidence adduced in the
case. There is not a shadow of
doubt that there was a joint mort
gage from defendant and Kalo, and
that it was lifted by another mort
gage from Kalo of part of the land
and a deed from defendant of the
other part. This fact in itself under
the circumstances, is in or" opinion
almost conclusive. Defendant says
herself they had not the money to pay
the mortgage; the first mortgage
was released, it certainly was not re-
| leased without q settlement being
had of the amount due. The evi-
dence points beyond a doubt to the
fact that the settlement was made in
the way above stated.
The Court charged the jury that
the will of Makaioulu being uncer-
tain as to the way the mauka portion
was to be divided, then it is to be
construed In the way il which the
| parties who are interested themselves
and those under whom they claim
construed it. The evidence is clear
as to how defendant and Kalo con-
strued it, defendant selling her share
by metes and bounds and Kalo mort
gaging hers.
The Court further charged, II in
struct you as a matter Of law that
after lapse of time, after long
time, and if the parties have acted as
If the deed were deed executed by
the defendant, then her mere testi-
mony that she did not execute it is
not sufficient. There should be some
thing more. If you find that the
deed was executed long time ago,
SIS you must, and if you further find
that she assented to it and that pos
session has been in accordance with
1T. then her mere testimony as a mat
ter OF law is not sufficient to show
that she did not execute it; that has
been decided by our Supreme Court
Kamalu vs.. Lowell, 9Th Haw., p. 81.
Further on the Court says, "If you
find that she did execute that deed
she is presumed to know the contents
OF 1t; she cannot come in here and
say that there was mistake or that
there was fraud" Further, "The
acts of the defendant and those under
whom she claims would estop her
from saying anything contrary to
what her acts have shown"
No exception was taken to any
part of the charge; it was the law of
the case as given by the Court. De-
PENDANTS counsel contends. and it is
his only contention, that the fact was
left to the jury and they found for
the defendant, and the Court cannot
interfere with the verdict. But ver-
dict must be in conformity to the law
and the evidence; there must be
evidence to support it. The