The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-01

20 the plaintiffs TO file a supplemental
bill for the partition OF the land.
OPINION OF THE COURT BY COOPER, JUDGE.
On the 18th day of September,
1873, the plaintiffs executed deed
TO the defendant Kaashu. The con-
sideration for the deed was $4,000
and the granting clause was as
follows: "Nolaila ma keia Ike
kuai nei maua a Ike hoolilo loa aku
nei no Kaaahu olelo mua la kela
apana alma a pau loa waiho la i
Kamakela Honolulu, Oahu, a iloko
ola apana alma 266 anana kapuai
q mona ka helu hoikeia 6245 a i
ikeia ma ka inoa o Kslaeokekoi."
The principal contention between
the parties is, that the PLAINTIFF
claim that the land sold and intend
ed to be conveyed was but q small
portion of Apana 4 of Royal Patent
1885 Land Commission Award 6245,
while the defendants contend that
the entire apana was sold and con-
veyed by the deed In question.
Apana 4 contains according to the
royal patent I704 of an acre, and the
defendant adduced testimony to the
effect that the measurement set out
in the deed was by lineRl measure
and correspondent with the outside
boundaries of the apans, while the
plaintiffs endeavored to show that
the area conveyed by the deed was
only 1866 anana and z kapusi" (266
fathoms and feeD square measure,
or about one-fifth of an acre, and
also that the land conveyed was cap
able Of being definitely located, and
asked that the deed be reformed by
inserting a description of the pro-
perty by metes and bounds.
So far as the location of the land
is concerned the deed may be said to
contain a latent ambiguity, and
parol testimony was admissible to
make the description more definite
in that respect. But we fail to find
from the evidence that the plaintiffs
accomplished this, further than fix
ing the general location to be within
spsna 4.
On the other hand we are of the
opinion that the land conveyed was
not the whole apans, but a portion
of it only equal in area to 266 square
fathoms and square feet. There
are many points In the case which
support this conclusion. First, a
fathom when used in the measure
ment of land is to be understood as
meaning a square faith ,m, for In its
common usage it is an integral part
of a unit of land measure, and that
it was so used in this case it is clesr-
l. L., h.
had it been hneal measure that was
meant. the result stated would have
been 267 fathoms and one foot, as
fathom of lineal measure Is six feet,
while a square fathom contains SO
square feet. Consequently the ex-
preston @seven feet" must be con-
sidered as representing a fractional
part of a square fathom. Secondly,
the outside measurement of Apans
is but 1S9 fathoms and feet which
is too great a difference to be &C
counted for as q discrepancy in sur
veying. Thirdly. The inadequacy
of the consideration. While
this feature would not
ordinarily be considered as
sufficient ground to set aside a
deed yet in a case of this kind it is
available to show the probable intent
of the parties. The evidence on this
point is not very clear, but sufficient
~ 30 to show that 800 was far below
the actual value of the whole Apsns,
at the date of the sale.
The difficulty with the plaintiffs
case is that the location of the piece
IS not shown with such certainty as
would Justify the reformation OF the
deed. as prayed for, but we are satis-
fed that the main point in the case,
as to whether or not the whole
Apans was conveyed by the deed
should be decided in their favor.
AS the parties have already been
once at law in regard to this very
transaction and were sent out OF
Court by nonsuit, we feel that they
are entitled to some relief IN this
proceeding.
While adhering strictly to the rule
that equity will not interfere where
there Is an adequate remedy at law,
we are of the opinion that decree
of kindred nature to the one asked
for by the plaintiff may we'll be en-
tered N this case; and we find that
by the execution of the deed In ques-
ton Kaaahu and the plaintiffs be-
came tenants in COMMON Of Apans 4;
kaaahu's interest being equal to zoo
square fathoms and square feet.
The plaintiffs being out OF posses
sion, under this ruling, we make no |
hndlOg as to the claims OF the other !
defendants, except as above. !