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


principal unless done within the scope
of his authority.
OPINION OF THE COURT BY FREAR, ].
This is a supplemental bin for
partition. The original bill was
brought for the reformation of a
deed, the plaintiffs claiming that
their deed, made in 1878, to the de-
PENDANT Kagahu, was intended to
convey definite portion of apana 4
Royal Patent 1885, L. Q. A. 6245,
%. 1, but that by mistake the loca-
ION of the land was left uncertain.
he Circuit Judge held that the
violence as to location was not sufi-
emily clear to entitle the plaintiffs
the relief prayed for. Upon ap-
peal this Court sustained the decree
of the Circuit Judge, to the extent Of
refusing the relief prayed for, but
held further, and against the defend
ants contention that the deed con-
veyed the whole of apapa 4, that it
conveyed an undivided part thereof,
equal to 266 square fathoms and z
square feet, and remanded the case
to the Circuit Judge, with leave to
the plaintiffs to file this supplemental
bill for partition. Nahaolelua ct. al. v.
Kaaahu ct. al. 9 Haw. 600.
The Circuit Judge, upon the sup
Elemental bill, answer, replication
and proofs, decreed that partition be
made.
The defendants, on this second
appeal, object to partition upon the
grounds, ~ that, by the construction
placed upon the deed by the parties
thereto, as shown by their acts, the
whole of apana was conveyed, and
~ that the plaintiffs are estopped
by their conduct from claiming any
interest in this apana.
The acts and conduct relied upon
in support of these contentious are
mainly the following: The plaintiff,
Mrs. Nahaolelua, at the time of her
conveyance, in 1878, resided on Maui,
and knew but little about the land,
as her property had been in charge
of Mr. Cartwright who had been her
guardian; her husband, Kia, came to
Honolulu, measured the land in a |
rough way, and arranged the sale;
the defendant Kaaahu, after her pur-
chase, took possession of the whole |
of apana 4, filled in wet and marsby |
portions thereof, and had a road |
opened thereon; at various times, be- |
ginning in 1856, she sold portions OF |
the land to other persons; she and
her grantees erected buildings and
made other improvements on the |
land; in 1891, Mr.. Cartwright, then |
Mrs. Nahaolelua's agent, took mort |
gage of the land from Kaaahu; the |
plaintiffs were repeatedly at the
place or in its vicinity and presum-
ably saw and knew Of the occupation
by Kaaahu, but took no steps to
assert their rights until 1891, when
they brought ejectment. but discon-
tinued, and brought this suit in 1892.
The first question, that of the con-
struction Of the deed, is settled by
the former decision of this Court,
which is part of this case, and is
expressly alleged in the supplemental
bill and is admitted in the answer.
The Court did not, it is true, in it's
opinion upon the construction of the
deed, advert to the acts or conduct of
the parties as bearing on the ques-
ton of the quantity of land convey
GU Oub ~ w do UNNECESSARY W w SO. |
There was no latent ambiguity on that
point. The deed conveyed 266 square
fathoms and z square feet of Award
6245. which contains 1906 acres.
By no construction of which its
language is capable could it be made
to cover the whole of apana 4, which
contains 1.7O4 acres; and parol evid-
ence was inadmissible to add to or
contradict its language.
In Aylett V. Keaweamahi, Haw.
320, cited by defendants counsel,
here was a latent ambiguity as to
which two of several lots were in
tended to be conveyed, and extrinsic
Or parol evidence of the intention of
he parties, as shown by the posses
sion of the grantee, and the acquies-
,ence of the grantor, was admitted
. identify and locate the lots. In
he language Of the Court, quoting
rom New York decision, the evid-
nee was admissible ''to ascertain the
particular subject to which the words
Ipply," not ''to add to or contradict