The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-08-04
OPINION OF THE COURT, BY L. A
DICKEY, ESQ.

Plaintiff brought bill for partition
of the real estate of Kaanaana, deceas
ed, praying that certain property of tn
defendants Malika Keone and G.. NJ
Keone, referred to as the "Nuka land,
be brought into hotch pot because ac
quired as an advancement from Kaa
mama ii. e., that partition be made ac
cording to Sec. 1857 of the Civil Code
and that certain rents collected by Ma
hka Keone and husband from the lane
to be partitioned be accounted for.
Defendants Malika Keone and G.. M
Keone answered, filing accounts anC
denying that they had acquired the
''Nuka land from Kaanaana
All parties agreed that partition be
made, and commissioner was without
objection appointed ''to 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 c. NJ Keone
were advanced a certain portion by the
said Kaanaana, deceased"
August II, 1895, the commissioner
filed his report, finding as fact that
Malika and c.. NJ Keone had received
from the estate of Kaanaana $3.50. 90
and that Kaanaana inherited a one
half interest in the "Nuka land" the
other half interest belonging to one
Kauhi He made partition, regarding
a one-half interest in the "Nuka land"
as an advancement to Malika Keone
and also apportioned to the different
heirs of Kaanaana shares of the $3.50. 90
rents collected by Malika Keone and
G. M. 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.. M. 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 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-
ceiyed.
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 unqualifiedly admitted and at
rest between them. The only question
of title is that of the source of Malika
KeOne's title to the "Nuka 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 V.
Lilo, Haw., 519, but it applies only to |
the question of present legal title to an
interest in the land sought to be par
utioned. Where the disputed title is |
equitable, an equity court may decide |
II; 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 a partition suit
where, as in the case at bar the parties
Bispham Eq.. Sec. 4S9.
NO express finding was made by the
commissioner that Kaanaana had given
the 'Nuka land to MaIika Keone as
an advancement, but a finding was
made that Kaanaana owned q half in
terest in it, which was the controversial
point. All admit that the present title
to the 'Nuka land" is in MaIfka Keone.
and the appellants did not raise the
question whether a transfer from Kaa-
mama to Malika Keone was an ad- ]
but based their whole con-
entlon on the denial that Kaanaana {
ever owned the ''Nuka land More I
over, there was evidence to support a
hiding that Kaanaana, owning an I'm t
divided interest in the ''Nuka land"
gave 1t as an advancement to Malika :
Aeone; the commissioner made the par {
ltlon IN accordance with such a find
hg; and that no express finding was
made does not show that the partition
vas wrongly made, or that appellants {
ave been injured in any way. The re-
'ort must stand unquestioned here. and
authorizes the decree.
kauh is not proper party to this :
uft and the plaintiff was right in not =
making him defendant He had an
Undivided interest in the '.NUka land :
'ut this is nc part of the land to be I
\ portion of the "Nuka h
and was an advancement, but an adj
ancement is not a part of an intes- h