The Pacific commercial advertiser., 1893-04-22


misled him, there might have
been good ground for a new trial,
Further, 10 this particular case the
plaintiff did not show even good
documentary tile under which lie
claimed, and, 80 far as appears from
the facts of the case, he must have
recovered, If at all, upon title IN
himself by adverse possession. He
cannot now be permitted to say that
he was ignorant OF the insufficiency
OF his title by purchase and OF the
necessity of his relying on title by
adverse possession; and, IL so, was 1t
reasonable in him to suppose that no
counter title by adverse possession
might be set mp by the defendants ?
We may add that the better practice
in cases Of surprise is for the party
alleging surprise to move for con-
tinuauce of the trial or for non
suit. and not first take his chances on
the verdict and then move for new
trial.
The third ground for the motion
obviously falls with the second
ground. The alleged newly discov-
cred evidence might easily have been
discovered before the trial il it had
been sought for. It was not sought
for because plaintiff took it for
granted that it would not be needed.
Indeed, the plainti shows by his
affidavit that he knew at least where
to look for the evidence. The evi-
dence would, moreover, at best, have
been merely cumulative.
The fourth and fifth grounds for
the motion may he considered to
gether. At the trial the plaintiff
offered In evidence a document
which he claimed was a sheriff's
deed on an execution sale of the
land In question to the plaintiffs
grantor. This document was very
defective in several respects, and did
not show, nor was it shown by other
evidence, out OF what court the exc
cution issued. It seems to have been
considered by plaintiffs counsel as
well as By the pres ding Justice that
the execution was issued upon a
Judgment of District Court, and it
cid not appear that a transcript of
the Judgment had first been dock
eted in the Supreme Court. The
document was admitted as evidence
on the question Of adverse posses
sion, but the jury was instructed that
it did not pass the legal title to the
plaintiffs grantor, because a trans
cript of the judgment had not first
been doeketed ill the Supreme Court,
this being required by statute as an
essential pre- requisite to an issuance
OF Execution upon Judgment of Dis
trict Court upon real property. This
instruction was undoubtedly correct.
Lindsey vs. Kainana, 4th Haw. 165.
The plaintiffs counsel urges as
further ground for a new trial, that
new evidence, set forth in an affidavit
on file, has been discovered since the
trial, showing that the Judgment
upon which the execution issued
was judgment of a Circuit Judge
of OAHU and not of Distric: Court
as appeared at the trial. Without
considering whether due diligence
was exercised in searching for the
record OF the Circuit Court before
the trial. or whether the record shows
all that is claimed, it is sufficient TO
say that for other reasons the execu-
ton deed would not be admissible as
evidence of title in the plaintiff. 4
new trial will not be granted on the
ground of newly discovered evidence,
unless the evidence Is on material
point and of such a nature that a
new trial would probably result in a
different verdict. By the plaintiffs
own showing the lard which it is
claimed was sold ON execution and
conveyed TO plaintiffs grantor, did
not belong to the Judgment debtor,
but to his wife, the Judgment debtor
having only the marital right of use
and possession and an initiate right
by courtesy. mo sale by execution
shall operate To convey a greater
estate Or interest IN the property sold,
than the defendant in execution had
at the time of such sale" Civil Code.
Section 1927. Such would also be the
law in the absence Of statute. The
judgment debtor having at the time
of the sale only contingent life in
terest at most, and having deceased
prior to the bringing of this action,
whatever interest passed by the deed
must have ceased prior to the bring
ing of the action. And although the
judgment debtor afterwards acquired
title to the land in fee by descent
from his son to whom it descended
from his wife, yet it is well settled
that an after acquired title in judg
meDt debtor will not pass to grantee
under sheriff's deed on execution
sale, there being no warranty in the
deed and no authority to bind the
judgment debtor by warranty. Rorer
on Judicial Sales, Secs. 800, 602, SOB;
Deylin on Deeds, Sec. 1886.
The exceptions are overruled.
J. a. Magoon and w. L. Holoka-
hiki for plaintiff; G. w. Ashford for
defendants.
Honolulu, April 17th, 1898.