The Hawaiian gazette., 1893-04-18

ering the Waikiki portion (Lot 2 OF
map), and the mortgage from KalC
to Fanny Young of the Eva portion
(Lot 8 on map) OF the mauka kule
ana, were the results of that effort tC
pay off the McIperny mortgage.
At the first trial of the case the
plaintiff offered in evidence and filed
the original deed from defendant tc
Fanny Young. Between that trial
and the last one held, that deed has
been distracted from the Court files
by some person unknown, and has
not been found since; certified copy
thereof is however on file and also OF
the mortgage from Kalo to Fanny
Young, executed the same day, and
which follows the deed upon the next
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 2 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 mo money!" it then be-
came necessary to raise the money,
and then they certainly divided the
mauka portion, Kalo giving a 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 op record, and was notice to the
world that she only claimed the lot |
she sold, and was declaration that of |
the msnka 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 we'll be held to prove her exc
cution 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 minuteness 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 aud interpreting the deed
to her before signature, that she was
being taken in and was selling too
,heaply.
To have found the verdict that the 4
ury did, they must have found that I
he defendant did not execute that !
Iced We are of opinion that such a /
hiding cannot be sustained in the ]
ACE of the evidence addueed in the t
,ase. There is not a shadow of
loubt that there was a joint mort
rage from defendant and Kalo, and
hat it was lifted by another mort
,age from Kalo of part of the land
nd a deed from defendant of the T
ther part This fact in itself under II
he circumstances, is in our opinion Ii
lmost conclusive. Defendant says q
erself they had not the money to pay 8
be mortgage; the first mortgage d
'as released, it certainly was not re-
eased without a settlement being
ad of the amount due. The evil
ence points beyond doubt to the
act that the settlement was made in
ne way above stated. "
The Court charged the jury that ca ca
he will of Makaioulu being uncer- =
lin as to the way the mauka portion
as to be divided, then it is to be
onstrued in the way in which the !
arties who are interested themselves 4,
nd those under whom they claim en-
onstrued it. The evidence is clear to
J to how defendant and Kalo con- or
rued it, defendant selling her share to
7 metes and bounds and Kalo mort -
aging hers. :
The Court further charged, Il in :
ruct you as a matter of law that
ter a lapse of time, after long n
me, and if the parties have acted as Y
the deed wers a deed executed by
a dafandant than her mara tasti- ,