4 Haw. 136 | Haw. | 1878
Opinion of the Court by
The plaintiff (her husband joining) brought a bill in equity praying that a deed purporting to be executed by one Kiki-pine in favor of the defendant,, conveying real estate in Manoa
Both parties offered further testimony before this Court to establish the identity of the deceased with the Naihe of Waimea and Waimanalo.
The defendant, claiming that she has proved that the deceased was a different man from the one to whom the plaintiff is cousin, argues to the Court that the plaintiff has no interest in the question of the validity of the deed, and therefore no standing, in Court.
The Chief Justice, in his opinion, after discussing at large the testimony relating to the two Kildpines or Naihes, says: For the purposes of this case it seems to me that the rela-
The new evidence cannot be said to contribute to the decision of the question of Kikipine’s origin and identity, for it is- about an equal addition to both sides. But we do not think it necessary for the purposes of this case to make a decision between them, even to- the extent and with the qualification expressed by the Chief Justice. We do not intend to express an opinion substantially different, for we agree with the conclusions of that Court, and only desire to qualify the terms of our opinion, so that we may more certainly guard against any color of a decision in favor of the claims of either the alleged cousin or the alleged brother of the deceased to be his sole heir at law, which might be pleaded as res adjudieata in other proceedings. It is sufficient to say that Kuamu has made a case, aside from the claim of Kahula, to stand in this Court as heir at law of the deceased, and entitled to bring a bill in equity for the cancellation of a fraudulent deed, and that Ka-hula has been shown (the claim of Kuamu not having been advanced) to be the brother of the deceased, and would be entitled to bring a bill relating to the estate. That is to say, either party establishes his right to the estate against all persons known to the Court, except the other, for the purposes of this case. Kahula has not brought his bill. The interests of the claimants are adverse, and they cannot join in the same bill, for neither- of them will admit the pretensions of the other. If Kahula should also bring- his bill, it would not diminish the right of the present plaintiff to bring hers; and if it is held that the Court could not determine the question of the validity of the deed without first deciding which was
On this matter of fraud, no further testimony was offered on the appeal and no argument was made.- We have examined the testimony, and agree with the Chief Justice in finding the deed to be fraudulent. It will not be necessary to set forth the facts on which that conclusion is based, for they involve no new principles, and every such ease must be judged by itself. They are fully set forth in the opinion of the Chief Justice.
In this way we concur with the result reached by the Chief Justice.
Judgment for the plaintiff.
OPINION OP
The plaintiff in this case claims a piece of land in Manoa Valley by reason of being first cousin and only heir to a person who has been known nearly his whole life as Kikipine, and the defendant claims the same land by virtue of a deed from Kikipine which the plaintiff avers to be a fraud and probably a forgery..
It would appear to make a little difference to the defendant whether the plaintiff’ Kuamu or the alleged brother Kahula were the real heirs of Kikipine, but defendant's counsel makes the point because he thinks-that if Kahula should be shown to be the heir, Kuamu would have no standing in Court, and
Of course one story or the other must be untrue. If Kiki-pine was borne at Waimanalo from Kukae, k., and Puu, w., he was not borne at Waimea of Kumoa, k., and Lonohiwa, w. But inasmuch as the evidence is very strong that he recognized the plaintiff, Kuamu, as his relation during his lifetime, and there -is no evidence that he had any fraternal intercourse with Kahula.
For the purposes of this case it seems to me that the relationship of Kuamu is fully made out, though in a trial between Kahula and Kuamu, I should he quite unbiased, yet the weight of testimony is in favor of Kuamu, as it appears to me, and I so decide, viz/: that Kuamu is shown to be the heir of Kikipine, though I do so without prejudice to Kahula’s right in any action that he may bring, for he is not a party to this action, and is an ignorant man — apparently not quite full witted. He has been brought here as a witness, apparently ignorant of how to get into Court for his rights. This brings us to the main question: Is this a valid deed or not? Now, the deed is one of those acknowledged by the witness, Solomon Thompson, in accordance with the statute after the death of the alleged grantor. The deed purports to he made on the 14th of June, 1876, and was acknowledged before Mr. Justice Judd on the 7th of July following, for the purpose of being put of record by the sole subscribing witness, Sol. Thompson. The statute under which this so-called acknowledgment is taken, was made for the purpose of enabling persons to get on the record a deed which has failed to be acknowledged by the grantor or which the grantor refused to acknowledge. This statute, which reads as follows: “But if any party to an instrument executed within this Kingdom shall die, or depart from the Kingdom without having acknowledged his deed, or shall refuse to acknowledge it, the deed may be entered of record on proof of its execution by a subscribing witness thereto, before
It is to be observed that this deed purports to be made on the 14th of Junó, that Kikipine died on the 27th, and Thompson testified before the Judge on the 6th of July following; and in his testimony he remarks before the Judge that Kiki-pine, though of sound mind, was of feeble health; but in his testimony before this Court, he testifies that his health was good; that he was well and not feeble; that he advised him to go to the Registrar’s office to acknowledge the deed; that the deceased asked him to sign the deed himself; that the defendant came to him to go and make the deed; that upon his arrival at the house the deceased told him that he had sent for him to make this deed; that he had prepared the deed before he went there; that he had first learnt the consideration on the 12th, when the woman came to him; that he left the deed with Mm; that Kikipine requested him to sign as a witness and said he must bring the deed to Mi’. Brown; and that $50 was paid to Kikipine at that time.
Now, the testimony indicates that the defendant in this action was the mistress of Kikipine; that, although the man died in a. week afterwards, there was no money found in his possession by anybody; and it is hard to understand why the deceased man should be unwilling to send for the proper officer -if he wished to acknowledge his deed, and if he was
J. M. Davidson and Castle & Hatch for plaintiff.
E. Preston and Cecil Brown for defendant.
Honolulu, May 25, 1878.