The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-03-07
EorITY-NON- ENFORCEMENT OF
ERRONEOUS DECREE.

EQDlI 1-NO1N-L&N O1eNA@~aAA~~
ERRONEOUS DECREE.
IJpon a bill alleging breach of fiduclary
duty in the obtaining of land COM
mission award decree was rendered
in 1858 ordering the guardian OF the
minor heirs of the awardee to con-
yev the land. No conveyance was
made. Held that the decree, beng
a collateral attack on land commls-
sion award, was erroneous as a mat
ter of law, and that the court OF land
registration in 1907 should not en-
force it by registering the title OF
those claiming under the decree as
against the outstanding legal title.
OPINION OF THE COURT BY BAL
LOU, J.
This is an appeal by Mary II. Ateher-
lev from decree of court OF land regis
tration registering the title of Levers q
Cooke, Ltd. to parcel of land COM
prising portions of L. c. A. 129 TO KIM
maka. l.. C. 4. 729 to Kekuhaupio and
land described in the deed from the
minister of the interior to estate. of b.
p. Bishop, dated July s, 1899. The APP
pellant claims title TO all that part OF
the land covered by apana 1 of L. c. A.
129, r. P. 1902 to Kinimaka and shows
a complete legal title as follows:
/. Land Commission Award 129 TO
Kinimaka, dated April 10, 1S49.
>. ROYAL Patent 1902 to Kinimaka,
issued August 80, 1853, upon payment
of the government communication.
3. viii of Kinimaka, who died In
1857, devising all his property to his
daughter, Kaniu Kinimaka, for her life
time. then to his son, David Leleo
Kinimaka for his lifetime, the remain
der to his son, Moses Kapaakea KIM
maka-
4. Death of the first life tenant, Ka-
liu, January 4, 1901, she having sur
yived the second life tenant, David
Leleo, who died in 1884.
5. Deed dated May IS, 1897, from
the remainderman, Moses Kapaakea
Kinimaka, conveying all his interest as
heir of Kinimaka to Mary FL. Atcher-
lev. the present appellant, who was his
niece and daughter of David Leleo
Kinimaka.
Against this chain of legal title the
petitioner claims in reouttal ID adj
verse possession, and (2) equitable title
nv virtue of a decree in the supreme
court dated November ?, 1858, in case
entitled David Kalakaua ". Pal and
Richard Armstrong, Guardian, decree
ing that Richard Armstrong, guardian
of Kaniu. David Leleo and Moses ka-
paakea Kinimaka, minor children OF
Kinimaka, deceased, convey to Kala-
kaua, petitioner s predecessor In title,
the land in controversy.
Although David Kalakaua and those
claiming under him have been in
possession of the land since the decree
of the supreme court in 1858, they have
acquired no adverse possession as
against appellant, who claims by deed
from the remainderman, Moses kapaa-
kea, sometimes called Kinimaka in the
early proceedings. No right of action
accrued to Moses Kapaakea until the
death of the first life tenant on Janu-
airy 4, 1901, and the appellant, who had
previously obtained a deed, brought
ejeetment in July of the same year
against the Kapiolani Estate, Ltd, then
IN possession of the premises, which
suit is still pending. The fact that the
first life tenant, Kaniu, conveyed In
1850 all her interest to David Leleo,
the second life tenant, who died in 1884,
did not accelerate any right to posses
sion in the ultimate remainderman, but
by the specific terms of our statute the
appellants right to commence an ac-
tion must be deemed to have accrued
when the first life estate would have ex-
pired by its own limitation. r. L. Sec.
1890.
Tt is urged that the first life estate
became extinguished by merger in the
second. so that the statute of limita-
tions began to run upon the death of
David Ieleo, but the common law doc
trine of merger, even if not preeluded
by the language of the statute, and if
applicable to the prejudice of a stranger
(Co. Lift. 3SSb) would have no appli-
cation TO the conveyance of a .disseiZee,
whose deed would probably convey
nothing at common law. Mossman V,
Hawaiian Government, 10 Haw. 421
Still less could it apply to the convey
ance of Kaniu in the. present case, made
at time when her life estate had al
ready been lost by the adverse posses
sion of Kalakaua. Moore V. Luce, 29
Pa. st. go.
Nor is the situation altered by the
fact that appellant is the daughter of
the second life tenant, for any estate
per autre vie which she might have in
herited at her fathers death had long
been barred, and even if she had ac-
quired a right at that time it would
have been no bar to the maintenance
of her right subsequently acquired as
grantee of the remainderman. Angel
Limitations. See. 375; Wells V. Prince
Q Mass. sos. It is urged that a lost
deed NAV be presumed. but we know OF
no ease in which this doctrine has beer
invoked against a person in the situa.
tion of appellant, who does not claim
under those who have suffered Ions
and unexplained possession by the ad
verse party, but under the newly ac
erued right of remainderman.
The equitable claim presents more
difficulty. The appellant ejeetment
suit against the Kapiolani Estate, Ltd.
was met by bill in equity fled by the
latter admitting that the ''bare lega
title" was held by appellant, and pray.
ing that a conveyance by the present
holder of that title might be deereet
in conformity with the decree of 1858