The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-03-07

show this. These high chiefs who sue
ceeded to the lands of kekauluohl and
Kinau respectively, both being infants
at the time of the presentation of their
| claims, received awards for land ex-
ceeding any other claimants in number
and extent Thurston V, Bishop, Z
Haw. 42I, 434.
Besides the cases above cited there
are numerous dicta extending through
out the Hawaiian reports substantially
to the effect that title based on an
award and patent is ''good against all
the world'' (Kekiekie V. Dennis, 1
Haw. 42), or is "final' (Keelikolani
v Robinson, 3 Haw. 522, $50, 551). The
decisions cited, however, mainly in
cases involving the estates of the sover-
eigns or high chiefs of the kingdom,
appear sufficient TO sustain the conten-
ton that none of the grounds alleged
in David Kalakaua s petition, including
fraud and infancy, were sufficient to
warrant the court in reviewing, IN
collateral proceeding, the award of the
land commission.
The only apparent exception TO this
line OF. cases is the probate case of Es-
tate Of Kaniu, 2 Haw. 81, already re-
ferred to, which was the foundation of
the claim of David Kalakaua and
throuhg him of the petitioner in this
case. The actual decision of that case
was not in conflict with the principles
above cited, for the estate of Kaniu
consisted of personal as well as real
property, and the decision was to admit
the will to probate, which would be by
no means conclusive upon the rights OF
Kinimaka claiming any or all of the
real estate under his land commission
award. The language of the opinion,
however, indicates that all Kaniu s land
would pass to Kalakaua and in this re-
spect the case was, as we have seen, ex-
pressly criticized and disapproved in
Estate of Kekauluohi, 6 Haw. 172.-
If this court, therefore, shall enforce
the decree of 1858, or by registering the
title of the petitioner treat the decree
as enforceable, it viii be the first time
in the judicial history of Hawaii that a
land commission award shall have been
set aside upon any pretext whatever.
This we are unwilling TO do. Apparent
error on matters of evidence or upon
which testimony is no longer available
may well be condoned after long lapse
of time, but the question here is on
fundamental principle of Hawaiian law.
1t is immaterial whether Kinimaka had
received the land from Liliha or from
Kaniu, or whether, if from Kaniu, he
was guilty of actual fraud in procuring
his land commission award or whether
he acted under the honest belief that
the disapproval of Kaniu s will by the
king and the verbal giving of the lands
to him was conclusive.
The objection to the decree of 1858
appears to go to the jurisdiction of the
court over the subject matter, for the
land commission award was the final
decision of a court of record which was
the only court of competent jurisdiction
to decide claims to land accruing prior
to its establishment, and it's decisions
could not be attacked except by the APP
peal provided by law. Thurston v.
Bishop, Haw. 421, 437. Even if the
objection did not go to the jurisdiction
of the court the result would be the
same, for under the principle of Law
renee Mfg. Co. v GAINESVILLE Mills, 138
U. S. $50, already discussed, this court
would not lend its aid in executing a
decree which though rendered by a.
court having jurisdiction, was found to
be erroneous. If, as has been sug-
gested, the enforcement of the old de-
d
take into account the circumstances
that the probate decision in Estate of
Kaniu, so far as it may have indicated
that the title to the real estate was
vested in halakaua, notwithstanding
the intervening land commission award,
was made without that point having
been raised and considered and for that
reason has been practically overruled;
10 hn f.1r hor I
that the decree in kalakaua V. Pal and
Armstrong has all the appearances of a
compromise decree, consented to by the
guardian of minors, it having been
made without any decision by the court
upon the grave question of law in
volved, without any disposition of the
previous case of Kukiiauhu V. Gill, 1
Haw 81, which it would seem neces-
sary to distinguish, and having been en-
tered by the. clerk only after the plain
tiff had discontinued as to other lands
identicallv situated. Nor, if it is a
matter of discretion, can the petitioner
plead laches en- the part of the appel
liant. The appellant IS legal rights are
clear and not barred bv laches, which at
law are measured by the statute of
limitations. The petitioner is in the
position of the moving party asking
substantial relief against the legal
situation, and would appear to be in no
better position than appellant as re-
CARDS laches. The decree of Kalakaua
V. Pal and Armstrong stood unenforced
for over forty years. Kalakaua and his
successors in title took no steps to have
it enforced, apparently because they
were in possession of the land, but I'M
der the will of Kinimaka their possess
sion was subject to fresh attack at the
death of each of the successive life ten
ants. Moses Kapaakea Kinimaka, on
the other hand, took no steps to have
the decree set aside, if such procedure
were possible, for the equally cogent
reason that he would have no interest
in doing so unless he survived the two
life tenants. Upon the maturing of his
rights the appellant, as his successor in
title, acted promptly in bringing eject
ment.
The decree of the court of land regis
tration is reversed and the case remand
ed for further proceedings in conform
ity with this opinion.
Lyle A. Dickey (E. NJ. Watson with
him on the brief for Mary H. Atcher