The Hawaiian gazette., 1893-04-18

OPINION OF THE COURT BY BECKER
TON, J.
This case was first heard at the Oct
ober term 1892, of the Supreme Court
and the jury disagreed and were dis.
charged. The case came on again
for hearing at the February term
1893, OF the First Circuit Court
under the Act to reorganize the Judi.
ciary Department, and the jury
rendered a verdict for the defendant.
On the 23d of February plaintiff by
her attorney filed a motion for a
new trial on the ground that the YER
dict was contrary to the weight of
evidence and TO the law as laid down
in the charge Of the Court. On the
2Sth of the same month the said mo,
ton was argued before Frear, j., the
Judge presiding at the trial, and the
Court overruled the motion. The
matter now comes here on bill of
exceptions to the ruling of the Court
in having denied said motion.
The history Of the case is briefly as
follows: About the year 1867 one
Makaioulu died leaving the property
mauka of Queen street in Honolulu,
marked as Lots l, 2 and 3 on the map
which was introduced in evidence.
By his will he divided the property
into three lots, but without stating
the metes and bounds of any of them,
leaving Lot 1 to his widow for life,
remainder to Kalo, his daughter, Lot
2 to his brother Keana for life, re.
mainder to Kekipi, wife of Keana,
and Lot 3 to his daughter Kalo.
There is practically no dispute as to
the location of Lot 1, which is con-
coded to have been the makai Dor.
ton, as marked on the map. But the
mauka kuleana, apparently intended
to constitute Lots 2 and 3, now fur.
nishes the dispute as to which is Lot
2 and which is Lot 3.
1t was in evidence that the resi-
dence of Makaioulu was so situated
as that the language of the will
would, or at least might, indicate the
Eva side of the mauka kuleana as
being that left to Keana, and to which
both parties hereto now claim title.
1t is conceded that defendant sue
ceeded by regular conVeyances to the
title of Keana, and plaintiff S claim
is founded upon division of the
mauka kuleana in 1876, between de-
PENDANT and Kslo, whereby defend
ant assumed ownership of the Wal.
XXI part marked 2 on the map), and
Kalo assumed ownership of the Eva
portion marked 3 on the map) and it
is upon those deeds, then executed,
that plaintiff chiefly relies.
Makaioulu died in 1867; his wife |
died soon after, and left Kalo, their
daughter, a minor, who was placed
under successive guardians, among
whom was the defendant, her aunt.
Defendant lived in the same house
with the Makaioulu family, and after
the deaths referred to, continued
there with Kalo the minor until the
house became unfit for occupation.
That house was Lot l on the map,
Kalo's title to which is not ques-
toned. When that house became
uninhabitable defendant having in
the meantime bought the Keana in.
terest from Keana's widow, defend
ant took what material was useful in
the old house, and with other and
newer material built house mauka
of the old one on the lot marked 3
on the map. Defendant and Kalo
then still a minor) went to live in
the newer house, and there continued
till Kalo came of age, and still later
got married and went to live on
Kauai.
In the meantime, in 1874, defend.
ant and Kslo executed a mortgage as
co owners of the present Lots 2 and [
THE entire mauks kuleana) to NJ
wherein they assumed to
be owners of the entire kuleana.
There was some controversy as to the I
execution of this mortgage, but the t
facts were very fully proven by His {
Honor the Chief Justice, who drew 8
The mortgage, and who identified {
defendant to j. h. Patty, who took S
ner acknowledgment The execution j
Of this instrument was on the first t
rial fatty denied by defendant; but t
IN the second trial she modified that
lenial into failure of memory.
The McInerny mortgage was soon
after transferred to Kekuanaole zap f
for Fanny Young Kekela S
,kalani) and when it metured, @
Fanny Young's agent Kekuanaole S
vent to defendant and Kalo where t
hey were living on the land in issue a
md demanded payment Defendant, v
n her evidence, says He asked us
o pay what we owed, and we replied y
hat we had no money" 1t was then
.rrsnged that they should make con- 2
'eyance of their land in order to pay t
If the mortgage, and the deed from f
defendant to Fanny Young, Gov b