The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-06-12

appear that they took any active
steps or actually did anything to in
duce or warrant the belief that they
had no title to the land They mere
| ~ knew of the possession and i'm
provement of the land by others and
were silent. 1t is we'll settled both
| here and elsewhere that mere acqui-
escence, consisting Of knowledge and
| silence, does not work an estoppel,
| unless, because of special circum-
stances, there is a duty to speak. A
| person has a right to assume that
others will not enter and expend
money upon his land, except at their
own risk, without first searching the
records and making necessary in
quiries; and, if they neglect to pursue
the ordinary means Of ascertaining
in whom the title lies, and suffer in
consequence, it is their own folly.
They cannot blindly take risks and
then cast the loss, if any, upon the
owner, who has done nothing to en-
courage them in their action.
In Kela V. Pahuilima, Haw. 525,
the defendant purchased land from
one in possession without title, and
put two buildings on the land; there
was adverse possession for over Is
years; the plaintiffs often passed by
the premises and presumably knew
of the adverse possession and i'm
provements, but made no claim or
objection. The Court held that there
was no estoppel, saying, "a pur,
chaser Is bound to examine the title.
+ The defendant had every
opportunity to know that Pahuai, of
whom he bought, had no title to the
land The plaintiff does not appear
to have done anything to induce him
to act on different state of things"
The facts of this case are almost
identical with those of the case at
bar
In Waiaha V. Naholowaa, 6 Haw.
271, the plaintiff, after ejectment at
law, brought her bill in equity for an
account of moneys expended in i'm
provements. She and her husband
under whom she claimed by devise
had held adverse possession for I9
years and erected buildings on the
land; they had presumptive knowl-
edge Of the true title. The Court re-
fused the plaintiff relief, saying:
1.-The only point in her favor is the
apparent acquiescence of Naholowaa
in the expenditures made on his
land. But it does not seem to me
that a person is bound to object to
being made on his
land, where the facts show that the
occupier had knowledge of the true
title, and where there is no fraud or
deception alleged or shown" See
also Kingman V. Graham, 81 Wis.
232.
But it is said that the recorded deed |
of plaintiffs to Kaaahu was too uncer-
tain to amount to notice to subse- |
quent purchasers. IF SO, then it was
their duty either to refrain from pur-
chasing or else to make inquiries of |
the plaintiffs. The deed certainly |
did not justify them in supposing
that the plaintiffs had conveyed the
whole apana. In Aylett v. Keawea-
mahi, supra, the Court, holding that
there was no estoppeJ, said, eve re-
silence with intention to deceive,
such as would amount to construct
We fraud. The deed to Kalaikuewa
under whom the plaintiff claimed)
was on record when the deed to de-
PENDANT was made, and defendant
cannot now say that he was ignorant
IF the true state of the title. If, as
claimed by the defendant, the record I
IF the deed of two lots in Kaakopua'
vas too indefinite to apprise defend
ant that the land he was negotiating
or had already been conveyed, it
should have put him on in
Iuiry." The present case is strong
,r against the defendants, for here
hey claim under the uncertain deed,
While there the defendant claimed
against it.
The other Hawaiian cases, cited by
counsel, Greenwell V.
Paris, 6 Haw. 31S; Kahanaiki V. Ko-
lala Sugar Co., I'd. 696; Kalaeokekoi
:. Kahele, Haw. 81; and Kamohai
:. Kahele, 3 Haw. 532; differ mater
ally in their facts from the case at
'ar, and contain no rulings contrary
o the above doctrines.
It is commended, however that the
aking of a mortgage of the whole
pana with other lands) from the
Kaaahu, by Mr.. Cart
wright, who was then agent for the
laintiff, Mrs. Nahaolelua, was a
ositive recognition that the title was
n Kaaahu. In reply to this it is
efficient to say that, although Mr..
was at that time the
gent of Mrs. Nahaolelua, he did not
4 that transaction act as such agent.
lie acted for himself personally. The
ct of an agent does not bind his
rincipal unless done within the
cope of his authority. In this in
lance, Mr.. Cartwright did not mere
7 act without the scope of his auth
rity as agent; he did not act as
gent at all
The decree of the Circuit Judge is
firmed.
W. G. Achi for plaintiffs; A. S.
.artwell for defendants.
HonO1r1lT1 Nav Al 1909