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

(Signed) s'JNO. E. BARNARD,
s'Clerk Supreme Court
endorsed: Supreme Court. David
Kalakaua VS.. Richard Armstrong, Guar
dian of kaniu, David Leleo and KIM
maka, minor children of kinimaka, de-
ceased.
Proceeding. 2 November, 1855"
There is no record that the convey
ance decreed was ever made, David Ka-
lakaua and his successors apparently
relying upon the decree, and their pos
session Hereunder.
In the case of Kapiolani Estate, Ltd,
V. Atcherlev. IA Haw. 651, it was de-
cided that although the above proceed
ings were brought against the guardian
the infants were bound by the decree
and that it was the interests of the
minors which were ordered to be con-
veyed. We are urged to reconsider that
decision, particular stress being laid
upon the many indications that the de-
cree of 1858 was substantially con-
sent decree. We do not find it neces-
sary, however, to review the ground al
ready covered in that decision as we
are of the opinion that, an additional
point not decided in the proceedings
on demurrer is decisive against the
right of the petitioners to a registered
title, which would be substantially an
enforcement of the decree of 1858.
The petitioner, in seeking TO register
title depending upon the unexecuted
decree in Kalakaua V. Pal and Arm
strong is, as against the holder of the
outstanding legal title, in the same posi-
ton as party asking the aid of a
court of chancery in executing former
decree, and it is well established that
he must take the risk of opening up
such decree for denomination. Law
renee Mf e. Co. V. GAINESVILLE Mills, 13S
u. s. $50. Lapse of time seems to be
no bar to the examination of the old
decree, particularly when the alleged
error is one of law and not question
of fact dependent upon testimony
which might be no longer available.
In Hamilton V. Houghton, Bligh. 169,
the House of Lords refused in 1920 to
enforce a decree made In 1850. In
johnson v Northey, Finch s Prec in
Chancery 1874, the decree opened was
apparently about fifteen years old. In
Lawrence V. Berney, ? Rep. in. Oh. 127,
it was twenty-seven years after the I'M
executed decree that ''this Court de-
sired to be excused, in making it its
own Act, to build upon such i'll Foun-
dations. and charging his own Con-
science with promoting an apparent In
JUSTICE In Wadhams V. Gay, 70 Ill.
AS, and Gay V. Parpart, 106 U. S. 679,
the situation was somewhat similar to
the case at bar in that the parties had
neglected to get conveyance of the
legal title in pursuance of an equity
decree, and the courts held the decree,
which was made in 1851, unenforce-
able because erroneous. the state court
decision being rendered in 1874 and the
supreme court decision during the 1882
term.
Applying the principle of these cases
to the case at bar, we are of the opinion
that the decree IN Kalakaua Y. Pal and
Armstrong was erroneous in assuming
the power to order Kinimaka's success
sors in title to CONVEX land which be-
tween the date of the oral will of Kaniu
and the decree of 1858 had been award
ed by the board of land commissioners
to Kinimaka.
A null history of the creation and
proceedings of the land commission
would be but repetition of the history
of land titles in this country already
discussed many times. The statute
creating the land commission is given
in the Revised Laws or 1905, p. 1160,
and the principles adopted by the land
commission and given the force of law
by resolution of the legislative coun-
sci on p. 1164. The effect of these stat
utes and of the awards under them are
discussed in keelikolani V. Robinson,
Haw. 522; Estate of Kamehameha ~,
Haw. 715; Kahoomana V. Minister of
Interior, 3 Haw. 635; Kenoa V. Meek,
6 Haw. SO; Harris V. Carter, 6 Haw.
1876; Thurston V. Bishop, Haw. AL.
One quotation must suffice to give
brief outline Of the history of the land
commission:
''There is a time in the history of
every original nation not formed by
colonization, when as it emerges from
barbarism into civilization, titles to
land may be said to have beginning
by positive institution of the people of
such nation. Previous to the advent of
Christianity to this country, in the
early part of this century, Kamehame-
ha |, as hing by right of conquest, was
the lord paramount and owner of all the
'tlnued in his successors until the reign
of Kamehameha ILL., Under this King
government, under a constitution and
laws, had its birth, superseding a gov
eminent of the arbitrary viii of the
King
''Claims of one character and an
other to the possession of land had
grown up, but there was no certainty
about them, and all was confusion; and
finally, after years of discussion had be-
tween the King, the chiefs, and their
foreign councillors, the plan of a Board
of Commissioners to Quiet Land Titles
was evolved, and finally established by
law, for the purpose of settling these
claims and affording an opportunity to
all persons TO procure valid paper titles
emanating from the Government repre-
senting the sovereignty, the source of
all title to land in this Kingdom, to
the land which they claimed As part
of this scheme Kamehameha III, with
unexampled magnanimity, relinquished
his claim of ownership as sovereign to
over two-thirds of the entire territory
of the Kingdom, in order that the same
might be awarded to the chiefs and
common people by the Land Commits
sion. The Commission was authorized