23 Haw. 706 | Haw. | 1917
OPINION OF THE COURT BY
This is an action of ejectment to recover possession of a parcel of land containing an area of twelve acres, situate at Kalama 5, South Kona, county of Hawaii, described in Royal Patent (Grant) No. 1185. There was a verdict for the defendants, and the plaintiff brings exceptions under which it is contended that the judgment should be reversed because of certain errors committed by the trial court in instructing the jury.
The title set up by the plaintiff was a term for years under an assignment by way of mortgage of a lease of the land made by the defendant Kalokuokamaile, the owner of
The defendant Kalokuokamaile testified that Aoyama had not paid the instalment of rent which fell due in August, 1911; that after the death of Aoyama he spoke to Aoyama’s brother in regard to the lease, and was told by the brother to “taire everything;” that regarding the Ao-yama tenancy as terminated he, on February 9, 1912, leased the land to the defendant Medeiros; that at the end of about a year Medeiros abandoned the premises, and on March 4, 1914, he leased the premises to the defendant Kato for the term of fifteen years. Medeiros was not a witness and it does not appear that he claims any present interest in the land.
If upon the uncontradicted evidence in the case the plaintiff was not entitled to recover judgment for the possession of the land it will not be necessary to consider the exceptions touching alleged errors in the charge to the jury. Pilipo v. Scott, ante pp. 26, 31.
Section 3120 of the Revised Laws provides that every mortgage or other conveyance of personal property, not accompanied by immediate possession and followed by an actual and continued change of possession of the things mortgaged or conveyed, shall be void as against subsequent purchasers, in good faith for a valuable consideration, unless the mortgage or other conveyance shall be recorded in the office of the registrar of conveyances. And the case has been argued by counsel upon the assumption that that section is applicable to this case. It is held, however, that statutes relating to chattel mortgages have no application
In this court counsel for the appellant argued that the conveyance by Aoyama to Henriques was not a mortgage but a conditional sale, but he failed to show wherein any advantage would accrue to the appellant even if that view could be taken. However, the instrument was offered in evidence by counsel for the plaintiff as a'mortgage; at his request instructions framed upon the theory that it was a mortgage were given to the jury; and we are of the opinion that the trial court was right in holding it to be a mortgage.
We hold that upon the uncontradicted facts of the case a verdict in favor of the plaintiff could not have been upheld; that the verdict for the defendants was right; and that if any errors occurred in the instructions given to the jury they were harmless.
Exceptions overruled.