21 Haw. 304 | Haw. | 1912
This is a writ of error to the circuit court of the first- circuit to review a judgment of nonsuit entered in an action of. ejectment brought by the plaintiffs in error (plaintiffs belowj) against the defendant in error (defendant below) to recover possession of a certain parcel of land fronting on Queen street in Honolulu, being a portion of apaña 2 of the lands described in L. C. A. 30, R. P. 1809, to Kahoowaha; to which parcel of land the plaintiffs Leialoha and Lahapaliilii Bush claim title in fee simple by inheritance ,and to which the plaintiff Colburn claims right to possession by demise from the other two plaintiffs.
The parties were at issue to the court, trial by jury being waived, and upon the close of the plaintiffs’ case the defendant moved for a nonsuit on the grounds, (1) that the plaintiffs had failed to prove title or right of possession to the land in controversy; (2) that the plaintiffs’ evidence of title by adverse possession was so vague and uncertain that the court would not be able to give judgment in favor of the plaintiffs for the whole or for any definite part of the land; (3) and that it affirmatively appeared from the plaintiffs’ evidence that the action was not commenced within ten years after the right to bring such action first accrued. The court granted the motion, expressly predicating its ruling upon the several grounds stated in the motion. Judgment of nonsuit was entered accordingly, whereupon the plaintiffs sued out this writ of error.
The assignments of error set out in- the record are six in number, and include the three grounds stated in the motion for a nonsuit. In the view we take of the case, however, we deem it unnecessary to set out the other assigmnents of error referred to and will confine our attention to the grounds stated in the motion for a nonsuit and in the ruling thereon.
The plaintiffs offered in evidence probate record No. 1441, re estate of Kahoowaha, deceased, whereby, as they claim, it
It appears from the record sent up that the plaintiffs adduced
Upon the evidence thus presented the trial court could have found, (1) that Mauliawa acquired title to the land in controversy by adverse possession; (2) that upon the death of Mauliawa, his widow, Lahapa, acquired title therein to one-half, if not all, of the land by inheritance; (3) and that upon the death of Lahapa, her adopted children likewise acquired title to the same by inheritance.
The defendant questions the right of the adopted children of
Act 83, Laws of 1905, reads as follows: “An adopted child, whether adopted by decree or judgment of a judge or court, or by an agreement of adoption legalized by a judge or court, or by an agreement of adoption duly acknowledged and recorded according to law, shall inherit estate undisposed of. by will from its adopting parents the same as if it were the natural child of such adopting parents, and shall not inherit estate from its natural parents; the adopting parents of such- child shall inherit estate undisposed of by will from such child the same as if such adopting parents had been its natural parents, and the natural parents of such child and their relatives shall not inherit estate from it; and for all other purposes an adopted child and its adopting parents shall sustain towards each other the legal relation of parents and child and shall have all the rights and be subject to all the duties 6f that relation the same as if such child were the natural child of such parents, and all such duties and rights as between such child and its natural parents shall cease from the time of the adoption.”
The language of this statute is plain and unambiguous. There is no room for any question or doubt as to the legislative intent. The obvious purpose of the legislature was, to clothe the adopted child, whether adopted before or after the enactment of the statute, with the same rights of inheritance that the natural child enjoys. As the right of inheritance does not vest until the death
One ground of the motion for a nonsuit, expressly adopted by the court below, as we have already observed, was, that it affirmatively appeared from the plaintiffs’ evidence that the action was not commenced within ten years after the right to bring such action first accrued. Even if there was some evidence tending to show that the defendant took possession of the land in dispute more than ten years before the plaintiffs began this action of ejectment, there was also evidence tending to show the contrary. The court should not have granted the motion for a non-suit on conflicting evidence. If the cause had been submitted on its merits, then, of course, the court could have properly weighed and considered all the evidence before it.
The judgment of nonsuit is reversed and the cause is remanded for a new trial.