22 Haw. 673 | Haw. | 1915
Lead Opinion
OPINION OP THE COURT BY
This is an action of ejectment in which the plaintiff seeks to recover the possession of a parcel of land containing an area of 3.27 acres, situate at Hononliuli, city and county of Honolulu. The plaintiff proved the paper title to the laud showing title in itself under a lease for a term of fifty years commencing J anuary 1, 1890, made by J ames Campbell, as lessor, to B. E. Dillingham, as lessee, dated November 19, 1889, and assigned to it on December 12, 1889. The assignment reserved certain portions of the demised premises, including the land in dispute, the portions reserved having been released to the plaintiff by quitclaim deed dated March 23, 1892. The defense was adverse
Exception 2. The defendant was allowed to testify over the objection of the plaintiff that Kamai “told me that she made an exchange with Mr. James Campbell in which she got this land now intdispute.” The testimony was admitted upon the theory that it was within the well established exception to the rule against hearsay in favor of res gestae declarations. It is settled in this Territory, in accordance with the rule in most of the States, that the declarations of a person in possession of land as to the nature of his claim go to characterize’ his possession, are part of the res gestae, and tend to prove the hostility of claim necessary to an adverse holding. Carter v. Lulia, 16 Haw. 630; Makekau v. Kane, 20 Haw. 203. But it is also well settled that declarations which are but narratives of past occurrences are not admissible as part of the res gestae. 16 Cyc. 1258; 1 Greenleaf on Evidence, Sec. 110. Declarations which are but- statements as to the source of claim or manner of acquiring possession of land are narrations of past transactions and are not to be considered as merely characterizing the possession and, therefore, not of the res gestae. 24 A. & E. Enc. Law (2nd ed.) 691; Daffron v. Crump, 69 Ala. 77, 80; Ray v. Jackson, 7 So. (Ala.) 747; Whitaker v. Whitaker, 157 Mo. 342, 354; Swope v. Ward, 185 Mo. 316, 329; Samaha v. Mason, 27 App. Cas. (D. C.) 470, 477; Murray v. Cone, 26 Ia. 276; Crawford v. Crawford, 60 Kan. 126; Feig v. Meyers, 102 Pa. St. 10, 16. And see Makekau v. Kane, supra. Accordingly it was held in Wilkinson v. Bottoms, 56 So. (Ala.) 948, that evidence of a declaration that there had been a parol exchange of lands was inadmissible. Though there are cases in which a contrary view has been taken, the application of the rule in accordance with the cases cited
Exceptions 3, 4 and 5. These relate to the admission in evidence of certain leases of portions of the land in dispute claimed to have been made by Kamai, as lessor, and offered evidently for the purpose of showing acts of ownership and claim of title by Kamai. The plaintiff objected to the admission of the documents because they were not stamped. The statute (R. L. 1915, Sec. 1352)^ provides that “No instrument requiring to be stamped shall be * * * of any validity in any court of this Territory unless the same shall be properly stamped.” Leases are required to be stamped. It is the duty of the trial judges to heed and give effect to this mandate of the legislature. This court probably would not reverse a judgment of the circuit court because of the admission in evidence of an unstamped instrument, which the law requires to be stamped, where it had not been used as a basis for any finding of fact or conclusion of law; but here, the record shows, the leases in question were considered by the court and entered into its conclusion that the defense of adverse possession had been made out. Thus they -were given validity in violation of the statute. Under the statute the leases were not evidence, and the court’s considering them as such was error. This court has not heretofore been called upon to construe or apply the statute, though in the case of Makainai v. Goo Wan Hoy, 14 Haw. 607, which involved the federal war revenue tax of 1898, the refusal of the trial court to admit in evidence certain promissory notes which were not properly stamped was sustained. These exceptions are sustained.
Exceptions 7 and 10 relate to the admission of the testimony of the defendant and another witness to the effect that Kamai, while in possession of the land in dispute, stated to them that
Exceptions 20 and 21, which were to the decision and judgment on the grounds that they were contrary to the law and the evidence, and which involve also exceptions 6, 8, 9, 11, 12, 13, 14 and 15, relating to the admission of testimony as to the leasing of the land and the payment of taxes by ICamai, may be considered together. On the question of the defendant’s claim of title by adverse possession the court, in sustaining it, took into consideration, besides the facts of open and notorious possession of the land by Kamai for more than twenty years, which was the period of limitation at the time referred to, and the making of improvements by her, the facts that she “claimed she got it by an exchange with Campbell,” that “she paid the taxes — her husband says that she paid the taxes all the time,” that “she did bring in a few (tax) receipts,” and that “she leased the land frequently.”
The contention of counsel for the plaintiff that where there is no direct evidence that the possession of one of the land of another was hostile in its inception it must be presumed to have been in subordination to the title of the true owner is not sustained. Actual, open, exclusive and continuous possession of land by the claimant, apparently as owner, is evidence of a hostile entry and claim. Kapiolani Estate v. Cleghorn, 14 Haw. 330, 337. The rule was thus stated in the ease of Albertina v. Kapiolani Estate, 14 Haw. 321, 325, “While it is true that the burden is on the party affirming the existence of adverse possession to show that his possession is in fact adverse, it is also true that where one is shown to have been for the statutory period in actual, open, notorious, continuous and exclusive possession,
But, as above pointed out, the evidence of Kamai’s declaration that she had acquired the land through an exchange with Campbell was improperly admitted, and there was no other evidence of such an exchange. The declaration should not have been regarded by the court as tending to support the defendant’s claim. The fact that a parol exchange had been made, if it was a fact, could have been proven by proper evidence, but not by a hearsay statement. Payment of taxes may be shown in support of a claim of title to land by adverse possession. Paulo v. Malo, 6 Haw. 390. And we assume that the payment of taxes may be testified to by any one cognizant of the facts. But over the objection of the plaintiff the defendant was allowed to testify that Kamai paid taxes on the land though it did not appear that he was cognizant of the facts, and he admitted that he did not know how long or how often she paid them. The tax records which were put in evidence did not show that Kamai had been assessed for taxes on the land in dispute, and there was evidence in the case tending to show that she owned other land. The defendant did not testify, as the trial court found he did, that Kamai “paid the taxes all the time.” No receipts for taxes paid were produced. The finding of fact that Kamai paid the taxes on this land was not supported by the evidence. The leases made by Kamai, above referred to, bore dates in the years 1908, 1911 and 1912, and, pursuant to a provision contained in a lease made between the plaintiff and Kamai in 1902 (which will be adverted to presently) the rents were collected from the tenants by the plaintiff, one-half thereof being retained by it as rental payable by Kamai under her lease, the other half being paid over to Kamai. These facts, which were undisputed, did not support the finding made by the trial court that “the lessees are all in possession acting under her as the owner of the land.”
In a jury waived case the improper admission of evidence which does not appear to have been relied on by the trial court in arriving at its conclusion, the decision being amply supported by other evidence, will not ordinarily require the reversal of the judgment. Aiona v. Ponahawai Coffee Co., 20 Haw. 724, 728. Bnt reversible error appears where, as here, the decision of the court was based partly upon assumed facts of which there was no .evidence in the case or which were attempted to be shown by evidence improperly admitted over objection, and the evidence on the main issue was conflicting.
The plaintiff introduced in evidence in rebuttal a lease of the land in dispute from the plaintiff to Kamai dated December 29, 1902, for the term of her natural life. The circuit court refused to consider it as evidence in the case, holding that as the statute had previously run in Kamai’s favor, it was void for want of consideration, and said that if necessary it would hold it “void for fraud on the part of Yon Holt,” the plaintiff’s agent. There was no evidence of fraud on the part of the agent of the plaintiff who negotiated the lease in its behalf. The rule is that while a recognition of title of the true owner by the one who has acquired title to land by adverse possession upon the completion of the statutory period will not alone defeat the title so acquired, “such recognition is evidence to be considered in
Counsel point out that there was evidence in the case given hy Von' Holt, and uncontradicted by any other evidence, that at a time when the plaintiff contemplated using this land for its own purposes, Kamai had asked and was granted permission to continue to live on the land and to rent to others a portion of it which she did not need for her own use, and they contend that she thereby recognized the superior title. Continuity of possession is, of course, one of the essential requirements in a claim of adverse possession. Leialoha v. Wolter, 21 Haw. 624. And “Interruption of the continuity necessary to acquire title by prescription occurs when the adverse claimant recognizes the title of the disseizee.” 2 C. J. 101; Campau v. Lafferty, 43 Mich. 429; Olson v. Burk, 94 Minn. 456; Williams v. Scott, 122 N. C. 545; McMahill v. Torrence, 163 Ill. 277; Paton v. Robinson, 81 Conn. 547, 551; Browneller v. Wells, 109 Iowa 230; Jackson v. Cuerdon, 2 Johns. Cas. 353. But the terms of the alleged arrangement, the time when it was made, whether it amounted to a recognition of title, and the authority of Von Holt in the premises (for it seems as though the title was in Dillingham at the time) were left in much uncertainty. The witness was not closely examined on the subject. If there were nothing else in the case requiring a reversal the judgment could not be disturbed on this point.
Exceptions 17 and 18, to the “oral” decision of the court, and exception 19, to the overruling of a motion for a new trial which was made before the written decision was filed, present nothing for the consideration of this court. See Nahaolelua v. Heen, 20 Haw. 613, 616.
The remaining exceptions require no comment. They are overruled.
The decision and judgment of the circuit court are vacated and set aside, and a new trial is granted. Case remanded.
Dissenting Opinion
DISSENTING OPINION OF
In my opinion the admission in evidence of the declaration of Kamai, made in her lifetime, to the effect that she received the land in controversy from James Campbell in exchange for other lands, was not error, or, if it was, was not prejudicial error, and not such as justifies the granting of a new trial. Many of the authorities cited on this point in the majority opinion do not relate to actions of this kind. 16 Cyc. 1258, referred to in support of the rule announced in the majority opinion, clearly relates to cases in which a contract relied on for a recovery was sought to be proven merely by the declaration of an interested party as to the substance of the contract. 24 A. & E. Enc. Law (2nd ed.) 691, cited in the majority opinion, says: “Declarations as to the source or manner of acquiring title, as, for instance, the contract under which title was acquired, are narrations of past transactions and are inadmissible.” To sustain the text the author, in note 3, cites a large number of authorities which I have carefully examined. A careful reading of those authorities shows that a large majority of the decisions relate to the possession or title to chattels where a party claimed title, not by adverse possession but by gift or purchase from another, and the declaration of the donee or vendee was relied on to prove the sale or gift, which, of course, cannot be permitted. Two States have gone to the extent of holding that in ejectment where a party relies upon adverse possession and offers declarations of .his predecessor made while in possession
In regard to exceptions 3, 4 and 5, I agree with the ínajority that the admission of the three leases, upon which revenue stamps had not heen placed, constituted error. I am also clearly of the opinion that it was harmless error inasmuch as it is apparent from the whole record that they were simply introduced to show acts of dominion over the property by Kamai in using it through tenants, and that the leases were not offered or received for the purpose of proving their contents, — a matter not in issue, — but simply to show that she had leased. These leases were given long after title had vested in Kamai by continuous adverse possession and were immaterial as to the main question of adverse possession, and it is apparent that they were not received as substantive evidence showing the acquisition of
Touching exceptions 20 and 21, which challenge the correctness of the decision and judgment on the ground that the decision and judgment were contrary to law, contrary to the evidence,-'and contrary to the weight of evidence, I am clearly of the opinion that these exceptions should be overruled. The trial court found from the evidence that Kamai, the predecessor of the defendant, took possession of the land in dispute in 1878, occupied it, fenced it, built a substantial house on it, lived on it continuously up to the time of her death, leased and released portions of it, and acquired title by adverse possession prior to-1902; that in 1902 the agent of the plaintiff procured her signature to a lease under which she was to occupy the land, rent free, and she was to lease whatever of it she desired and to receive half of the rents; that said lease expressed the nominal consideration of a rent reserved of $1 per annum, but was wholly without consideration and void. The court found the title to-be in the defendant and ordered judgment accordingly, which was entered. In my opinion there is abundance of evidence in the record showing that prior to 1902, the date of the lease from plaintiff to said Kamai, Kamai had by continuous, open, notorious, peaceable, adverse possession of the land in dispute acquired title thereto. Mr. Von Holt testified that Kamai was an. old retainer of the Meeks before Mr. Campbell got the land,that she was living in the house upon this land with Charlie Liilii who was Mr. Campbell’s head cowboy. The defendant.
As to payment of taxes by Kamai, the fact that she paid on this identical land may be proven and was proved by parol evidence in this case. “The fact of the payment of taxes may be shown by the receipt or certificate of the collector of taxes or other officer authorized to receive them, or by entries in the books and official records of the tax office or by any other competent evidence sufficient to satisfy a jury, including parol testimony, according to the doctrine prevailing in many states, although in some such testimony is not admissible unless the failure to produce a receipt or record evidence is first satisfactorily accounted for” (37 Cyc. 1167, 1168). Proof of the payment of taxes may be made by parol evidence the same as the payment of money in other cases, although receipts may have been given. Hinchman v. Whetstone, 23 Ill. 108, 111. The fact as to the payment of taxes is merely a circumstance tending to show the nature of the claim of Kamai, and while the same was of but little persuasive force in this case owing to the abundance of proof to show her adverse possession for twenty years or more by other evidence, it was admissible.
As to the lease from the railroad company to Kamai in 1902, it is not held, and could not successfully be contended, that the lease divested Kamai of title to the land, if she had acquired it. Did it estop her or her successor (the defendant) from asserting title to the land? It should be borne in mind that she did not receive possession of the land from the plaintiff and that no stated rent other than the nominal sum of one dollar per annum is mentioned or reserved in the lease. The trial court found from all the evidence that there was no considera
At most it must be admitted that the evidence tending to show the acquisition of title by Kamai by continuous adverse possession is to some extent conflicting, but there being more than a scintilla of evidence and sufficient evidence to support the decision in favor of such adverse possession, this court has not, under numerous decisions, authority to set aside the decision and judgment in this case. The decisions to this effect and to the further effect that the decision of the court takes the place of a verdict of a jury are so unanimous and numerous in this jurisdiction, and in others, that it is useless to advert to them. To my mind the judgment is set aside in this case and a new trial awarded upon harmless errors, in part, but mainly upon the ground that the evidence is conflicting and that the trial court is not the sole judge’ of the evidence where it is con
In my opinion'a new trial is not warranted in this case and is not authorized under the Hawaiian decisions, and the exceptions should be overruled.