The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-10-26

Liliu as a tenant IN common with
Pilipo. Therefore, before closing,
plaintiff moved to be allowed to
amend her bill by the insertion of
clause that plaintiff is and has been
since death of her father Ksmae
entitled to an undivided half of the
said premises. This amendment WAS
asked for to entitle the plaintiff TO
ask, under the prayer for general re-
lief, that the defendant, Mr.. Brown,
IN whom the title was, might be
ordered to convey to the plaintiff one
undivided half of the lands, the deed
of Pilipo wrongfully covering all the
land. This amendment was refused
by the Circuit Judge and the bill
was dismissed on the merits. Ap-
peal was taken, and the point pre-
scented to US is that the refusal of the
Court to grant the amendment was
erroneous.
1t is not competent for a Court of
Equity on bill to cancel deed for
fraud to try the title of the maker of
the deed to the property involved,
for this is question of law. More
over the defendant denied that the
property came to Ksapahili. the
common ancestor by descent from
the Pstentee Liliu and he had
right to make this defense before
Jury.
The claim of plaintiff that she was
entitled to an undivided half of this
land was claim of legal nature
and equity has no jurisdiction to
determine it.
Cases are cited by plaintiff to sus-
tain the view that court of equity
having once obtained Jurisdiction of
matter will continue it and grant,
under the prayer for general relief,
such relief as the plaintiff is entitled
to without his having claimed in the
bill that particular relief. As
general proposition this is true, but
it does not apply here. In our case
equity had jurisdiction solely because
fraud was alleged. This failed on
the evidence. There was nothing
left which the plaintiff asks for but
her claim of legal title in the land
Equity has 10 jurisdiction of such a
question. This will be perfectly
clear if we make the supposition that
the bill originally solely asked that
plaintiff, on proving her title by
descent, might have a decree that
the Trustee Brown convey one-half
of the land to her. Such bill would
be demurrable on the ground that
plaintiff bad a plain and adequate
remedy at law. And she is in no
better position now. The case of
Whipple V. Farrar, 3 Mich. AT is
especially relied on by plaintiff. In
that case the court, having determin.
ed that the equitable title of the
premises was IN the complainant,
decreed possession to him instead of
leaving him to his further remedy
by ejectment.
In the case before us plaintiff had
not proved an equitable title to the
land. In the same court that decid-
ed Whipple V. Farrar, it was held
that bill to quiet title by a com.
plainant not in possession against
one IN possession, cannot be maIn-
tanned, where no reason appears for
not bringing ejectment. Barron v.
Robbins, % Mich. So.
This we find is the law. See
johnson V. HuliDg, 127 III. Il We
put the case as follows: Plaintiff
asked that the deed be cancelled,
alleging fraud. This ground failed.
She being out of possession now
prays that the grantee of the deed
convey her one half of the premises
because she has a legal title to it,
and asks the Equity Court to pass
upon this independent question. To |
enable PARTY not in possession to
maintain a bill to quiet title he must |
have an equitable title, one that cannot .
be enforced at law. Smith v. Nc
Cornell, II Ill. 135.
In 3 Pomeroy Eq. Jur. sec. 1899,
note 4, the rule is thus stated:
when the estate or interest to be
protected is equitable, the jurisdic-
ton (of equity should be exercised,
whether the plaintiff is in or out of |
possession, for under these circum-
stances legal remedies are not posi-
BILE; but, when the estate or interest
is legal in its nature, the exercise of !
the jurisdiction depends upon the
adequacy of legal remedies. Thus,
for example, plaintiff out of posses
sion, holding the legal title, will be
left to his remedy by ejectment
under ordinary circumstances"
This is approved in Graves V. Ewart,
IL S. w. Rep. 81 (Mo.) and we hold
i. to be good law. The plaintiff was
not entitled to the amendment and
her bill was properly dismissed.
Carter & Carter for plaintiff; w
G. Achi for defendants.
Honolulu, October Is, 1894.