The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-09-18

court of equity in 1858, but the con-
testant having Come into this court
land submitted herself to my jurisdic-
! ton 1 take Jurisdiction of it by her
| express consent, and without any dis
pute as To my right to do SO by any
| party.
The contestant, Mary H. Atcherly,
claims as a privy in title with the
original grantee Kinimaka. The Pc
titioner claims title as in privity of
title with Kalahaua. a ward of KIM
maka, whom it is claimed was the
real owner of the title, defrauded by
court of equity in 1861
| The court here refers to Kapioiani
Estate, Ltd. V. Atcherly, Il Haw. 651
! that decision.
THE evidence produced before me
proves that Kapiolani and Kalakaua
occupied the premises as a home from
about 1870 until Kalakaua died in 1890,
and thereafter the place was occupied
by KapioIani as her home until she
/ died and since her death oy her
grantees and the assigns, claiming
/ title.
/ THE only evidence as to who was
| in possession of the premises prior to
| that time is found in the evidence
produced in the equity case which
shows that Kalakaua was living there
/ prior to 1S43 with his adopted mother,
| Kaniu, and after her death in 1843, he
was living there as her heir, claiming
as heir of Kaniu, by virtue of an oral
will admitted to probate, Dec. 8, 1858.
Kinimaka. surviving husband of Ka-
niu, was living there also, as natural
guardian of Kalakaua, until he died
in 1857.
Thereafter there is no evidence of
| the possession except that David Lee
| leo and Moses, two sons of Kinimaka,
We're living on the premises as re-
| tainers or guards of Kalakaua after
| he became king.
'fKaniu fw), the first life tenant, con-
veyed all her interest in the premises
to David Leleo, the second life ten
ant. in 1880, and died in 1901.
Moses K. Kinimaka, the remainder
man, conveyed his interest to Mary
Atcherly, one of the children and heirs
of David Leleo, in 1897. David Leleo
died in 1884, leaving him surviving
several minor children, among others
Mary Atcherly, born in 1874.
1T is TO be noted that when David
Leleo. the second life tenant. pur>
chased the interest of Kaniu, the first
| life tenant, the rights of Kaniu (w) to
possession of the land had become
barred under the twenty-year rule of
the statute of limitations, at least as
against the first life tenant. When
Mary Atcherly acquired an interest,"
from her father on his decease In 1884
his rights had already become barred.
The petitioner contends that the bar
of the statute was never removed SUBJ
sequent to 1878, because Mary Atcher-
~, having inherited an interest in the
life estate of Kaniu, after Kaniu was
barred from enforcing her rights, if
any, bought from Moses Kinimaka, the
remainderman, the remainder of the
estate in 1897, and the whole estate
merged and there was no right ac-
quired by Mary Atcherly which inter-
rupted the running of the statute. De-
PENDANT, Mary Atcherly, claims that
the statute guns from the death of Ka-
niu in 1901, for she claims as remain
derman, and her right so far as af-
! fected by the limitations shall be
deemed to accrue when the intermediate
or precedent estate shall have expired
by it's own limitations etc. Revised
Laws, Section 1890, third section.
Il find that the petitioner and its
predecessors in title have been in the
open. notorious, hostile, continuous,
adverse possession of the premises
under color of title since 1858, unless
the above contention of defendant be
decisive"
The court finds merit in Mrs. At
cherly's contention that the statute has
not run against her and proceeds to
consider whether the 1858 equity case
of Kalakaua V. Pal and Armstrong was
not stare decisis in the case at bar. II
decides this point thus:
in November, 1858, the decree was
rendered, which decided that Kinimaka
was not entitled to the property, but
that Kalakaua was so entitled, and
ordered a conveyance accordingly. r.
Armstrong was the guardian of KIM
maka minors, a defendant in the case,
and the person ordered to convey the
title to Kalakaua. In December of that
year he loaned to Kalakaua $3.50 and
took as security a mortgage by Kala-
kaua of his title to the premises in
controversy. This speaks plainly of
the view the parties took of the matter,
even if the words of the deed of mort
gage were not as follows: Premises
granted to said D. Kalakaua by a de-
cree of the Chief Justice of the Su-
preme Court
1.-The acquiescence of the parties is
shown and the failure of Kanui to as
sert any right to possession thereafter
showed their view. The possession of
Kalakaua and successors in title all
show that they dealt with the property
in reliance on the title as declared in
the old decree. The title of Kalal1aua
has been built thereon.
In the above case, the court quoted
approvingly from Van Fleet on Collat-
eraI Attack, page 4: Where a court
has enormously held that certain
things are sufficient to give jurisdiction
and titles have been built thereon, the
doctrine of stare decisis forbids the
overruling of those decisions
Therefore, whether Chief Justice
Allen was right or wrong in his view
that he had jurisdiction of the subject
matter, as contended for by defendant
citing later decisions of the Supreme