The Hawaiian gazette., 1896-08-04
OPINION OF THE COURT, BY L. A.
DICKEY, ESQ.

Plaintiff brought a bill for partition
of the real estate of Kaanaana, deceas-
ed. praying that certain property OF the
defendants Malika Keone and G. NJ.
Keone. referred to as the ''Nuka land,
be brought into hotch pot because &C
quired as an advancement from haa-
mama d. e., that partition be made &C
cording to Sec. 1857 of the Civil Code),
and that certain rents collected by Ma
nka Keone and husband from the land
to be partitioned be accounted for.
Defendants Malika Keone and G. NJ.
Keone answered, fling accounts and
denying that they had acquired the
''Nuka land" from Kaanaana.
All parties agreed that partition be
made, and a commissioner was without
objection appointed ito partition the
real estate of Kaanaana, deceased, "
ito ascertain and report the amounts
received and paid by the said Malika
and G. NJ. Keone and of all parties
herein as rents and profits" and ito
inquire, investigate and report whether
or not the said Malika and G. NJ. Keone
were advanced certain portion by the
said Kaanaana, deceased"
August II, 1895, the commissioner
filed his report, finding as fact that
Malika and G. NJ. Keone had received
from the estate of Kaanaana $4,000,
and that Kaanaana inherited one
half interest in the ''Nuka land" the
other half interest belonging to one
Kauhi. He made partition, regarding
-, To-
as an advancement to Malika Keone,
and also apportioned to the different
heirs of Kaanaana shares of the $4,000
rents collected by Malika Keone and
G. NJ. Keone, and made them charges
upon the portion of real estate appor-
toned to Malika Keone.
No attack was made upon this report
in the Circuit Court.
March %, 1896, a decree of partition
was entered in accordance with the
partition of the commissioner.
March 80, 1896, Malika Keone and
G. NJ Keone noted an appeal to this
Court from the decision of Charles F.
Peterson, commissioner appointed by
the Circuit Court of the First Circuit,
and from the decree filed herein upon
such decision"
Appellants urge that as question of
title is involved in this case, the Circuit
Judge in Chambers had no jurisdiction
that Kauhi is a necessary party to the
suit. and that as no custer has been al
legged or shown of the other heirs of
Kaanaana by the appellants, they can
not be held to account for rents re-
ceived.
There is no question of title involved
in this case which deprives the Circuit
Judge in Chambers of jurisdiction.
The present title of all parties to the
suit is unqualifedly admitted and at
rest between them. The only question
of title is that of the source of Malika
Keone's title to the fNuka land i. e.,
the question whether it was or was not
an advancement to her by Kaanaana
The rule invoked by defendants was
adopted by this Court in Wailehua "
Lilo, 5 Haw., 519, but it applies only to
the question of present legal title to an
interest in the land sought to be par
titioned. Where the disputed title is
equitable, an equity court may decide
it; Pomeroy Eq. Jur., Sec. 1888; Bis
pham Eq., Sec. 4S9: obert V. Obert, 10
n. J. Eq., 102, and even the legal title
of parties to the land to be partitioned
may be decided in partition suit
where, as in the case at bar, the parties
consent. Bispham Ed, Sec. 4S9.
No express finding was made by the
commissioner that Kaanaana had given
the ''Nuka land to Malika Keone as
an advancement, but a finding was
made that Kaanaana owned a half il
terest in it, which was the controverte6
point. All admit that the present title
to the "NUka land is in Malika Keone
and the appellants did not raise the
question whether a transfer from Kaa-
mama to Malika Keone was an ad-
vancement, but based their whole con-
tention on the denial that Kaanaana
ever owned the ''Nuka land" More
over, there was evidence to support q
finding that Kaanaana, owning an I'M
divided interest in the "Nuka land. -
gave it as an advancement to Malika
keone; the commissioner made the par
tition in accordance with such a find
ing; and that no express finding was
made does not show that the partition
was wrongly made, or that appellants
have been injured in any way. The re-
port must stand unquestioned here. and
it authorizes the decree.
Kauhi is not a proper party to this
suit, and the plaintiff was right in not
making him defendant He had an
undivided interest in the ''Nuka land. -
but this is not part of the land to be
partitioned. A portion of the 'Nuka
land was an advancement, but an adj
Vancement is not part of an intes-