The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-10-26

of Pilipo), therefore the plaintiff was
entitled to one-half of the land OF
Liliu as a tenant IN common with
Pilipo. Therefore, before closing,
plaintiff moved to be allowed to
amend her bill by the insertion of a
clause that plaintiff is and has been
since death of her father Kamae
| entitled to an undivided half of the
| said premises. This amendment was
asked for to entitle the plaintiff 20
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 APP
peal was taken, and the point pre-
sented to Us is that the refusal of the
Court to grant the amendment was
erroneous.
1t is not competent for Court of
Equity on bill to cancel a 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 Kaapahili, the
common ancestor by descent from
the Patentee Liliu and he had a
right to make this defense before a
jury.
The claim of plaintiff that she was
entitled to an undivided half of this
land was claim of a 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
1t 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 DO jurisdiction of such
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 had a plain and adequate
remedy at law. And she is in no
better position now. The case of
Whipple v. Farrar, Mich. AT is
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 rs 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.
% Mich. 35.
This we find is the law. See |
Johnson V. Huling, 127 Ill. IA. 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 bill to quiet title he must
nave an equitable title, one that cannot
be enforced at law. Smith v. Nc,
Connell, 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-
ion (of equity should be exercised,
the plaintiff is in or out of
possession, for under these circum-
stances legal remedies are not posi-
Die; but, when the estate or interest
s legal in its nature, the exercise of
he jurisdiction depends upon the
adequacy of legal remedies. Thus,
or example, plaintiff out of posses
ion, holding the legal title, will bs
eft to his remedy by ejectment
inder ordinary circumstances"
This is approved in Graves v. Ewart,
i S. w. Rep. GIL (Mo.) and we hold
t to be good law. The plaintiff was
lot entitled to the amendment and
Ter bill was properly dismissed.
Carter & Carter for plaintiff; w
). Achi for defendants.
Honolulu, October Is, 1894.