The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1911-08-08
CLOUD ON TITLE
To CITY LAND

In a written decision Judge Robinson
sustains the motion of defendant to
dismiss the bill in equity of Francisco
S. Borges against Maria Adelaide Bet
tencourt Briozo de Sequeira Encama-
Gao on the ground of lack Of iurisdic-
ton. The bill was to cancel and an
uul a deed
Complainant resides at Rosaes, Is /
land of San Jorge Azores islands. lie
set forth in his complaint that
defendant on August 8, 1907 |
caused to- be recorded in the |
registry Office at Honolulu al
deed whereby complainant pur-
Ported to convey to defendant certain
real estate in the Territory of Hawaii. |
The deed purported to be signed by
complainant on July 3, 1905, in
presence of John NJ Sylvia and Joao
+. Lemos and to have been acknow-
! lodged before the United States con-
sular agent at San Jorge on July
3, 1905. Complainant denies the
signing and the acknowledging,
and declared that the deed was
/ fraudulent and without force and eff
! feet so far as complainant was con-
cerned. Hence the instrument as re-
corded in Honolulu constituted a cloud
upon the title of complainant to the
property in question. The jurat to the
complaint was made by Matthews
Siveria Nunes Bettencourt, who
swears therein that he is the attorney
in fact of complainant.
) The deed IN question is for an
e undivided one-third interest. in two
pieces of land in Honolulu-one on
the mauka side Of King street, be-
. tween River and Kekaulike sreets,
= containing 6S5 square feet, and the
other on the mauka side of Hotel
street, between Nuuanu and Smith
streets, with a frontage of seventy
three feet six inches on Hotel street
and a depth of about thirty feet
John F. Jewell, U. S. consul at st.
Michaels, certifies to the signature OF
Joaquin Jose Cardosa, U. S. consular
agent at San Jorge, to the acknow-
! ledgment of the deed.
Summons in the case was returned
as unserved on defendant, with in.
formation that she was residing with.
out the Territory of Hawaii, but as
served on H. Fujimoto, D, Yonekur5
and Lee Fai, residing on and in pos
session of the premises.
Judge Robinson says: In m,
) opinion, the weight of authority il
overwhelming in favor of the PROPOSE
ton that the court acquires no juris
q diction of the subject matter of tn
i action in a cause such as the one a
bar, in which only substituted or con
structive service of process was hac
J. upon the defendant" He quotes Mr.
Justice Gray of the U. S. Supreme
> Court, in delivering the opinion upol
a case practically on all fours will
the one at bar, as follows.
Generally, if not universally, equity
- jurisdiction is exercised in personam
!, and not in rem, and depends upon thu
control of the court over the parties
/, ty reason of their presence or resid
). ence, and not upon the place wher,
!. the land lies in regard to which relic
p is sought. Upon a bill for the re
moval of a cloud upon title, as upon
6 bill for the specific performance of al
!. agreement to convey, the decree, un
4 less otherwise expressly provided b,
o statute is clearly not Judgment il
p rem, establishing a title in land, Blu
a. operates in personam only, by re
straining the defendant from assertin!
n his claim, and directing him to delive
d up his deed to be cancelled, or t.
5, execute a release to the plaintiff"
IS Accordingly, IN granting the motor
e 10 dismiss the bill, Judge Robinson
II says:
THE attention of the court has no
y been called to any statute of this Tel
D, ritory which either expressly or b.
1t necessary implication provides tina
he the decree in a case such as the on
ID at bar shall operate as a judgment il
Re rem establishing title in the Ian
D. concerned or affected by judicia
Is determination of the facts recited."
Kinney, Prosser, Anderson & Mar
= represented the complainant, and E
- NJ. Watson the defendant.
- The Bishop street extension propos