9 Haw. 27 | Haw. | 1893
Opinión or the Court, by
This is an action of ejectment to recover a piece of land situate at Waialua, Oahu, the same being a part of the land described in Boyal Patent 585 issued to Kawaihao. The case was tried at the January term, 1892, of the Supreme Court, before Judd, C. J., and a jury, and resulted in a verdict for the defendant. The case comes to this Court upon exceptions to the refusal of the presiding Justice to grant the plaintiff’s motion for a new trial, based on the following grounds:
1. That the verdict was contrary to the law and the evidence.
2. Surprise of plaintiff in the defense set up by defendants of title by adverse possession.
3. Newly discovered evidence consisting of the testimony of certain witnesses upon the issue of adverse possession.
4. Error in the charge of the presiding Justice to the jury that a certain sheriff’s deed on an execution sale did not pass a legal title because the District Court judgment, on which the execution appeared to have been issued, had not been docketed in the Supreme Court.
5. Newly discovered evidence that said judgment was rendered by a Circuit Judge.
As to the ground that the verdict was contrary to the law and the evidence, nothing more is claimed by counsel than that the evidence greatly preponderated in favor of the plaintiff on the issue of adverse possession. This of itself is not sufficient to justify a court in setting aside a verdict, where the evidence is conflicting as it is in this case. But upon a careful review of the evidence, we cannot say that it preponderated greatly if at all in favor of the plaintiff,
Tbe third ground for tbe motion, obviously falls with tbe second ground. Tbe alleged newly-discovered evidence might easily have been discovered before tbe trial if it bad been sought for. It was not sought for because plaintiff took it for granted tbat it would not be needed. Indeed, tbe plaintiff shows by bis affidavit tbat be knew at least where to look for tbe evidence. Tbe evidence would, moreover, at best, have been merely cumulative.
Tbe fourth and fifth grounds for tbe motion may be considered together. At tbe trial tbe plaintiff offered in evidence a document which be claimed was a sheriff’s deed on an execution sale of tbe land in question to tbe plaintiff’s grantor. This document was very defective in several respects, and did not show, nor was it shown by other evidence, out of wbat court tbe execution issued. It seems to have been considered by plaintiff’s counsel as well as by tbe presiding
Tbe plaintiff’s counsel urges as a further ground for a new trial, tbat new evidence, set forth in an affidavit on file, has been discovered since tbe trial, showing tbat tbe judgment upon which tbe execution issued was a judgment of a Circuit Judge of Oahu and not of a District Court as appeared at tbe trial. Without considering whether due diligence was exercised in searching for tbe record of tbe Circuit Court before tbe trial, or whether tbe record shows all tbat is claimed, it is sufficient to say tbat for other reasons tbe execution deed would not be admissible as evidence of title in tbe plaintiff A new trial will not be granted on tbe ground of newly discovered evidence, unless tbe evidence is on a material point and of such a nature tbat a new trial would probably result in a different verdict. By tbe plaintiff’s own showing tbe land which it is claimed was sold on execution and con- ■ veyed to plaintiff’s grantor, did not belong to tbe judgment debtor, but to bis wife, tbe judgment debtor having only tbe marital right of use and possession and an initiate right by curtesy. “No sale by execution shall operate to convey a greater estate or interest in the property sold, than tbe defendant in execution bad at tbe time of such sale.” Civil Code, Section 1027. Such would also be tbe law in tbe absence of statute. Tbe judgment debtor having at tbe time of tbe sale only a contingent life interest at most and having deceased prior to tbe bringing of tbis action, whatever in
The exceptions are overruled.