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

bias or misunderstanding. the verdict
is set aside and a new trial ordered.
OPINION OF THE COURT BY BECKER
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 tie jury
rendered verdict for the defendant.
On the 23d OF February plaintiff by
her attorney fled a motion for a
new trial on the ground that the YER
dict was contrary TO the weight OF
evidence and 20 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 1857 one
Makaioulu died leaving the property
mauka of Queen street in Honolulu,
marked as Lots l, 2 and 8 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 l 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 8 to his daughter Kalo.
There is practically no dispute as to
the location of Lot l, which is con-
ceded to have been the makai por-
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.
It was in evidence that the resi-
dence of Makaioulu was so situated
as that the language of the viii
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 8 claim
is founded upon q division of the
mauka kuleana in 1876, between de-
PENDANT and Kalo, whereby defend.
ant assumed ownership of the Wal.
kiki 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, theis
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
nninhabitable 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 a 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 Kalo executed a mortgage as
co.owners of the present Lots 2 and
3 1.-THE entire mauka kuleana) to M
McInerny, wherein they assumed to
| be owners of the entire kuleana
There was some controversy as to the
execution of this mortgage, but the
facts were very fully proven by His
Honor the Chief Justice, who drew
the mortgage, and who identified
defendant to j. III. Patty, who tool
her acknowledgment. The execution
of this instrument was on the frs
trial fatty denied by defendant; bu
on the second trial she modified tha
denial into failure of memory.
The McInerny mortgage was soor
after transferred to Kekuanaole zap
parently for Fanny Young Kekela
okalani) and when it matured
Fanny Young's agent Kekuanaolt
went to defendant and Kalo where
they were living on the land in issue
and demanded payment. Defendant
In her evidence, says "He asked u.
to pay what we owed, and we replied
that we had no money" 1t was ther
arranged that they should make con
veyance of their land in order to pay
OH the mortgage, and the deed iron
defendant to Fanny Young, GOV
ering the Waikiki portion dot 2 OF
map), and the mortgage from Kalc
to Fanny Young of the Eva portion
(Lot 3 on map) Of the mauka kule
ana, were the results of that effort t,
pay off the McIperny mortgage.
At the first trial of the case tn
plaintiff offered in evidence and FLEE
the original deed from defendant t.
Fanny Young. Between that tria
and the last one held, that deed ha
been distracted from the Court file
by some person unknown, and ha