The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-10-23
OPINION OF THE COURT, BY JuDD,c. j..

OPINION OF THE COURT, BY JUDD,C. j.
On the 18th of April, 1872, one IA
liza Kamakaafa and wife made con-
veyance in the Hawaiian language to
one Kualii of certain land situate at
| HamakuapokO, Island of Maui, being
in three parcels, originally granted to
one Kamakaala father of the grantor)
by Land Commission Award No. S46S,
Royal Patent No. 2349. The convey
ance was for the consideration of sew
enty dollars. After the granting part
it contains this clause: But if we
shall duly return the money above
mentioned within six months from
this day, then this land shall remain
ours; but if this money mentioned
above is not duly repaid, then there
| belongs to said Kualii the Kuleana
of Kamakaala situate in Hamakua-
poke, that is to say, the kule2na No.
S46S, and by Royal Patent No. 2349;
and, in consideration of this money
mentioned above, there has been Civ
| en- a receipt showing the bargaining,
selling and the complete releasing Of
these parcels of land mentioned below
/ and whose boundaries are as fol-
| lOws:r
Kualii, thereafter date not given,
conveyed piece Of the land in ques-
ton to one NapulOu, who conveyed
| the same to the Paia plantation, de-
PENDANT, and in September, 1882, Kua-
Iii conveyed the remainder to his
daughter, Mele Kaluahine, defendant.
KuaIii in 1856 leased a portion of the
land to the plaintiffs, and thereafter
died intestate. The guardian of de-
PENDANT Mele Kaluahine in October,
1891 executed another lease of the
same land to plaintiffs. Thereafter,
plaintiffs on the 4th of November,
1852, took a conveyance from Kalia
Kamakaala tthe grantor of the deed
to Kualii) Of all his right, title and in
terest in this land, and refused
to pay any more rent, claiming
title in the land through the convey
ance from Kalia Kamakaala. Defend
ant, Mele Kaluahine, brought suit
against plaintifffor her rent. Where
upon plaintiffs brought this bill to re-
deem and obtained an injunction
against the prosecuting of the suit for
rent pendente lite. The Circuit Judge
found on the plaintiffs evidence alone
that the transaction by deed in ques-
ton from Kalia to Kualii was cOndi-
tional sale and that the right to re-
deem was barred by lapse Of time.
The appeal raises these two ques-
tions. First, is the deed in question
a mortgage or a conditional sale; and
second have the plaintiffs lost their
right to redeem by the lapse of time?
We first consider the last question.
The date of the conveyance is April
II, 1872. This bill to redeem was filed
or the 29th November, 1898; this is
more than twenty years after the con-
veyance. Conc eding for the sake of
argument that this document is mort
gaze, if we should find that the so.
called mortgage took possession of
the land after the six mouths allowed
for repayment of the consideration, it
not being then paid, and maintained
it until the bill to redeem was brought
the right to redeem would be barred.
For though the statute OF limitations
of real actions does not strictly con-
stitute a bar to a bill to redeem, it
being an equitable and not legal
right, equity adopts the statutory
period of limitations of real actions,
which, in this country, is twenty
years. Jones on Mortgages, sec.
1144 and cases there cited.
Kalia, the grantor, says in his evil
dence 81 an not in possession OF the
land"; 81 left Paia 1.-THE locality of the
land) two weeks after signing the
document. While living at Lahaina
did not visit Paia. After that
went to Paia and stayed with
Kualii (granteel two weeks, then
went back to Waikiki. After that
shipped with Paia Plantation and
lived at plantation quarters for two
years. During this time did not 60
back to land to live, only to see Kua-
ill.," "Saw the new house Quilt by
Kualii on the land first in 1883. 1
left Paia in 1872 and returned in 1888.
was last in Paia in 1887. Stopped in
small house owned by Kualif three
weeks" On cross-eXamination he
says: "At the end of six months |
gave up all claim to the land, and did
not expect to get it back" "In 1888
Kualii had charge (pOssession) Of the
land and had it rented out. did not
ask for portion OF the rent" "Three
weeks after execution of the deed to
Kualii 1 gave Royal Patent to him.
From this to the time gave deed TO