25 Haw. 470 | Haw. | 1920
OPINION OF THE COURT BY
This is an action in ejectment by Hannah Makainai against her brother Solomon K. Lalakea to recover from him the land described in her complaint and damages for its retention. The defendant answered by general denial and the cause came to trial before the circuit judge jury waived. At the beginning of the trial and before any evidence was introduced a stipulation was entered into by the parties in open court as to certain
.The interlocutory bill of exceptions presents only one exception for the consideration of this court at this time, namely,«the exception to the overruling of the motion for a nonsuit. This involves of course an examination of the evidence introduced by the plaintiff to substantiate her claim that the deed was never executed by her father T. K. Lalakea, and if executed was never delivered to the defendant.
The deed mentioned in the stipulation and introduced in evidence by defendant bears date March 6, 1915. It purports to have been executed by T. K. Lalakea and is witnessed by D. Namahoe, and Solomon K. Lalakea the grantee therein named. This deed was not proven for record in the lifetime of the grantor but on May 8, 1915, the day following the grantor’s death, the subscribing Avitnesses appeared before the circuit judge at Hilo, produced said deed and made proof of its execution in the manner required by the statute. With the circuit judge’s certificate of proof attached said deed was immediately forwarded by the defendant to Honolulu to the registrar of conveyances and entered of record on May
To begin with, in December, 1914, T. K. Lalakea had his attorney, Mr. O. T. Shipman, draft about a half dozen deeds among which was the deed in question. The other deeds Avere to various other of his children and if all had been executed and delivered would have disposed of all, or .practically all, of his large and valuable estate. By far the greater part of his valuable lands were included in the deed to his son Solomon, the defendant herein. Mr. Shipman was at that time, and had been for a period of four or more years the regular legal adviser of Lalakea. senior and was a notary public. Lalakea habitually Avent to Mr. Shipman to have his conAreyancing done and to have his acknowledgments taken. It appears that after drafting these deeds Mr. Shipman delivered them to his client and at various times thereafter had conA'ersations Avith him about the execution thereof, the last of Avhich was about April 20, 1915. It is significant that one of these conversations took place on the 6th of March, the very day that the deeds purport to have been executed. What these conversations Avere the witness Avas not permitted to say. One of the other deeds drawn by Mr. Shipman at the same time he dreAv the deed in question Avas to the plaintiff and two of her sisters jointly. It is admitted that this deed Avas not delivered to the plaintiff personally by her father, but like the deed in question Avas proven for record by the same subscribing witnesses before the circuit judge on the day following the death of the grantor, and by the defendant sent to Honolulu for record. One of the other
The defendant makes two contentions as to the sufficiency of the plaintiff’s evidence to support her claims: (1) That the evidence as to the nondelivery of the deed to the defendant merely raises a suspicion and is not legally sufficient to support a finding that the deed was never delivered; (2) that opinion evidence is not legally sufficient to overcome, the direct testimony of the sub
It is important before proceeding to an' application of the evidence to determine the rule of law by which the circuit judge is to be governed in ruling upon a motion for a nonsuit. It has been held many times by this court that a mere scintilla of evidence is insufficient to support a finding of fact and that to amount to more than a mere scintilla the evidence must be of a character sufficiently substantial in view of all the circumstances of the case to Avarrant the jury (or judge) as trier of the facts in finding from it the fact to establish which the evidence was introduced. (Holstein v. Benedict, 22 Haw. 441.) The circuit judge having overruled the motion for a nonsuit Ave are in the same position and must be governed by the same rules of laAV as would govern had the case been submitted to, a jury for determination upon the facts, that is, if the court would luwe been justified in submitting the questions of fact to a jury the circuit judge’s ruling will not be disturbed. The supreme court of Texas in Lee v. Ry. Co., 89 Tex. 588 (36 S. W. 65), said: “To authorize the court to take the question from the jury the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” In Mynning v. R. R. Co., 64 Mich. 93 (31 N. W. 147), the rule is stated thus: “If the circumstances are such that reasonable minds might draw different conclusions respecting 'the plaintiff’s fault he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion.” These cases are quoted with approval in Joske v. Irvine, 44 S. W. 1059, one of the cases upon which the defendant in this case strongly relies.
Prom a careful examination of the cases it appears
We are then called upon to determine whether the testimony in this case does more than create a mere surmise or suspicion that T. K. Laiakea never delivered the deed in question to the defendant. We think that it does. It shows clearly that within a few minutes of the death of his father the defendant was seeking the aid of an attorney and notary public to have the deed acknowledged by his father; that within a very short time after his father’s death he went into the room occupied by his father prior to his death and took therefrom papers which it might be inferred included the deed in question; it also shows that several other deeds were made by the same grantor at the same time,, under the same circumstances, conveying- other property to the defendant’s brothers and sisters and that these deeds, or at least some of them, were never delivered. The evidence as to the genuineness of the grantor’s signature is not without bearing upon this issue. If as might be found from the evidence of the three witnesses to which we have referred the deed was never executed by T. K. Laiakea this fact would have a strong bearing upon the question of the delivery or nondelivery of the deed.
On the question of whether or not opinion evidence is legally sufficient to overcome the testimony of the subscribing Avitness attached to the deed defendant relies
We think that if the opinion evidence in this case is sufficient to establish the fact that the signature attached to the deed in question is not the signature of T. K. Lalakea the circuit judge would be justified in finding that T. K. Lalakea never executed the deed. As said by Jones in his Commentaries on Evidence, Yol. 3, p. 597, “This kind of testimony may be so weak as to be unsafe to áct upon, or so strong as, in the mind of every reasonable man, to produce conviction. But whatever degree of weight his testimony may deserve, which is- a question exclusively for the jury, it is an established rule that, if one has seen the person write, he will be competent to speak as to such handAvriting.” The opinion
Our conclusion is that the plaintiff has produced substantial testimony tending to establish both that the deed in question was never delivered and that it was not executed by the alleged grantor. The circuit judge therefore committed no error in denying the motion for a nonsuit and the exception thereto must be and is overruled.