The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-11-13
DOVER LAW
EXPOUNDED
Supreme Court Decision
Reversing Equity
Decree.

| S. Pereira and s. kobayashi is reversed
by unanimous opinion of the Supreme
| Court, written by Chief Justice Frear
| The case was submitted June II. and
| decided November II, 1903.
| In conversing about the decision yes
| terday evening Judge Robinson said
it sustained him in asserting the right
of the plaintiff to dover, and only re-
quired amendment of his decree with
| regard to the time from which the
damages should be computed His de-
cree held it was from the husband S
| death, whereas the Supreme Court
makes it from date of demand.
The syllabus and some extracts from
| the decision are given below:
SYLLABUS OF opinion.
A suit for dover may be barred by
the general statute of limitations ap-
plicable to actions for the recovery
of land, but the statute does not neces-
Sarily begin to run from the death of
the husband, as for instance, when,
as in this case, the widow is by the
statute permitted to occupy with the
heir. without assignment of dover. un-
til the latter objects, and the land re-
| manned Ya"ant, and the heir and the
widow lived together on adjoining land
and the heir or her grantee did not
claim adversely until nine years after
the husbands death.
Damages for the detention of dover
are allowed under the circumstances
only from the date of demand.
STATEMENT OF CASE.
This is a suit in equity for assign
| ment of dover and for damages for
detention of dover. The plaintiff s
| husband died intestate seized of the
land in question June 90, 1871, leaving
minor daughter as his only heir and
| the plaintiff as dowress. The land,
which is situated on Liliha street, Ho-
| nolulu, was then vacant and remained
so until the daughter, having come Of
| age, conveyed it to one Naukana, Oc-
tober 7, 1880 During that period, the
widow and daughter lived together on
land adjoining the land in question.
! Naukana leased the land, March 20,
1882, to one Wong Quing for ten years
at $65 year and on April %. 1888,
1 d,
who, some time after the expiration of
| the lease, filled in the land, which was
[, low and wet, and on May 1, 1899, leased
| it for fifteen years at $500 a year to
! the defendant Kobayashi, who erected
a hospital upon it. The Circuit Judge
| held that the plaintiff was entitled to
dover and, finding that dover in the
land could not be set apart without
int 70 No <,.1o - 10 ho
paid in money amounting to $511.76,
being the present worth, at the legal
| rate of interest, of one-third the in
come for the widows expectancy of
life, and allowed further the sum OF
| $S27.79 damages, being one-third the
| rents, and interest thereon, received
! under the two leases up to the time Of
| the interlocutory decree. The defend
ant Pereira appealed.
TITLE TO DOVER.
The first question is whether the
plaintiff is now entitled to dover at
all. No question is raised as to the
amount at which her dover interest.
| if any, was valued. 1t is contended
that her right of action accrued on
the death of her husband, in 1871, and
that therefore she isl barred by the
statute of limitations, the period pre-
scribed by which for real actions was
twenty years at the time this suit
was begun. in September, 1899. There
| is much difference of opinion elsewhere
as to whether general statutes of limi-
| tations are applicable to actions for
dover (See 10 Am. & Eng. Enc. of
Law, I'd Ed, 205; 10 Id. 1900 and we
have no special statute on the subject;
but in our opinion the better rule is
that the general statute does apply,
and it was SO stated in Makauhana VS..
Pua, Haw. 651.
WHEN STATUTE BEGINS.
But does it run from the time the
right to dover accrued, in this case
June 90, 1871, when the husband died,
or from the time an adverse claim
is set up against it, in this case April
%, 1888, when the daughter conveyed :?
If the latter date, the twenty years
had not elapsed when this suit was be-
gun. There is no evidence that the
daughter claimed adversely to the
widow before that date The land in
question was vacant and they both
lived together on adjoining land. There
is upon this question also-as to when
the statute begins to run-some differ
ence of opinion elsewhere.
1t seems to US that when, as in this
case, the widow had a right under the
statute to occupy the land with the
heir or to receive her third of the rents
issues and profits, until objection
should be made by the heir and when
the land remained entirely unoccupied,
and both heir and widow lived together
on adjoining land in a Friendly way
the widow would be under no obliga-
ton to call for an assignment Of dover
and the statute would not begin to
run until one of them began to claim
adversely to the other. There was
no occasion before that for the widow
to assert her rights.
1t is argued, however. that equity is
not bound by the statute of limita-
tons and may deny relief on the
ground of laches, even when the stat
r. 7.