14 Haw. 669 | Haw. | 1903
Lead Opinion
OPINION OF THE COURT BY
This is an action of ejectment brought to recover an undivided one-fourth interest in the ahupuaa of Noholalele, Hamakua, Hawaii, containing an area of about 6330 acres. At the first trial a verdict was directed for the plaintiff, but this was set aside by this Court on the ground that evidence had been adduced sufficient to support a verdict'for the defendant. The
First, as to the paper title. Undisputed evidence shows that the ahupuaa in controversy was granted by L.' O. A. 26B., R. P. 1527, to Kailakanoa (w) and upon the latter’s death passed to her half brother Huakini, who was the son of Kailakanoa’s mother, Kapehe the first, but by a second and different husband, Kuauamoa; also that from Huakini the land descended, one half to his widow, Hoomana, and the other half to the heir's, by right of representation, of the two sisters of his mother, that is to say, on© fourth to Hanakaulani Holt, the grand-daughter of Paele, sister of Kapehe the first, one eighth to Kapehe the second, daughter of Keaka, sister of Kapehe the first, and one eighth to the descendants of Kapau, brother of Kapehe the second. The plaintiff’s evidence, undisputed, as it is reported in the transcript now before us, further shows that Kapau had two children, Kapehe the third and Kailakanoa the second, that these two children survived Huakini, that Kapehe the third left surviving her as her sole heirs two children, Kealakoiula (w) and Peleki (w), that Peleki left surviving her, as her sole heirs, her husband Aalaioa and her sister Kealakoiula, and that Kealakoiula and Aalaioa conveyed by deed to plaintiff all of their right, title and interest to the land in question. It is claimed for the plaintiff that the testimony is incorrectly reported in the transcript in so far as it makes it appear that the “children” of Kapau survived Huakini and that the testimony in fact was that of the descendants of Kapau, only his “grand-children” had survived Huakini. Upon the transcript as it stands, the evidence is not capable of being so read. Further, no evidence whatever was adduced tending to show the. time of the death of Kailakanoa the second with reference to that of Kapehe the third or any other facts from which the jury could have found that all or
This point was not raised by counsel either at the trial or in this Court and evidently escaped the notice of the trial judge also for the latter gave the jury a direct instruction to the effect that the estate of Huakini at his death passed, one half to Hoo • mana, one fourth to Kapehe the second and the grand-children of Kapau and the remaining fourth to Hanakaulani Holt, that Kapau left as his sole heirs at law his grand-children, and that the paper title to an undivided one fourth passed to the plaintiff by the deeds of the grand-children. No exception was noted to this instruction. Plaintiff’s counsel, on having his attention called to’ the defect in the evidence, contends that the point must now be regarded as waived by the defendant by reason of the failure to except to the instruction. Perhaps this is so, although on the other hand it may be urged that the exception to the verdict is broad enough to cover the objection and that justice requires that the court should not sustain the verdict with full knowledge that the evidence of pedigree does not uphold it as rendered. However that may be, upon another ground tire verdict must, we think, be set aside and a new trial ordered.
The defense was adverse possession. The following facts were proven by undisputed evidence: P. Nahaolelua, a half brother» of Huakini by the same father, Kuauamoa, but by a, different mother Kaauhuhu, was appointed administrator of the estate of Kailakanoa November 26, 1862. On December 6, 1870, he •filed a petition for the approval of his accounts as such admin
On April 16, 1872, P. Nahaolelua executed a lease to Charles Notley of the whole ahupuaa for a term of five years from that date. This lease was recorded July 13, 1872. The lessee took possession and made use of the ahupuaa as a cattle ranch and also cut bark from the trees in the forests for tanning purposes. September 21, 1871, Hoomana by deed conveyed to P. Nahaolelua all of her interest in the land, the consideration being $350. By his last will dated June 11, 1875, and admitted to probate before the Circuit Judge of Maui, November 3, 1875, P. Nahaolelua devised the whole ahupuaa to his son Kia Nahaolelua. The latter by instrument dated January 13, 1877, and recorded January 15, 1877, leased the property, described by metes and bounds, to Walter Murray Gibson for a term of twenty years commencing April 17, 1877, the day after the expiration of the lease first above mentioned, and Gibson in turn
Service of summons in this action was made November 26, 1897. Upon the undisputed evidence, the defendant and its predecessors in interest had, for a, period of more than twenty years next preceding the commencement of this action, possession that was actual and continuous. That possession was also, admittedly, open, notorious, exclusive and hostile as against the whole world other than Kapehe the second (hereinafter called Kapehe) and the grand-children of Kapau. It seems to be further conceded that the possession of AYidemann and those following him, that is, beginning with December 2, 1878, had all the elements of an adverse holding. The plaintiff’s contention is that there was evidence sufficient to support a finding that as against Kapehe and the grand-children of Kapau the possession of the Nahaoleluas was not hostile, nor open, notorious or exclusive, and that these two men so acted towards the parties
The argument is that as the prominent, intelligent man in the family, P. Nahaolelua would be naturally expected by Kapehe to- possess and manage the land for the- benefit of all the owners and that the lease of 1872 was probably regarded by her as’ having been an act- done partly in her behalf, that he had
Kia Nahaolelua’s statement to his wife made just prior to the execution of the deed to Widemann, uneommunicated to any one else, cannot be held to be, of itself, a recognition of the title of the true owners or an admission that his possession was not hostile. An adverse possessor may be consciously a wrongdoer, he may be aware of a defect in Ms title or that a fraction is outstanding. If he asserts title in himself and by his acts or words or both notoriously shows that he is holding under a claim of ownership, adverse possession is accruing. Moreover, to regard Kia’s statement as an admission of title such as to interrupt the running of the statute, is rendered impossible by reason of the fact that in spite of that statement and as a part of the same transaction Kia carried out his purpose and executed the absolute deed to Widemann, thus showing the hostile nature of his possession. But, it is urged, bis statement at least shows that he and his father had knowledge of the weakness of their title and thus serves to further make room for the theory that they by their conduct deceived Kapehe and the grandchildren into! a belief that their possession vas not hostitle. This contention cannot be upheld. The character of Kia’s acts is too clearly fixed by the evidence to permit of being shaken by any such theory based upon the present state of the evidence. The same is, we think, tine of P. Nahaolelua’s joossession. To say that because Kia in December 1, 1878, had such knowledge, therefore P. Nahaolelua must have had it also from 1871 to 1876, is at least, a strained conclusion; it is even more strained to say that, because the two had that knowledge they created in Kapehe and the grand-children the belief that they were holding for her.
The evidence relied upon by the plaintiff in this matter, is, in our opinion, so very slight and so very unsatisfactory that it is insufficient to sustain the verdict. The evidence- of adverse possession, on the other hand, is strong' and convincing. In so holding we are not unmindful of the rule, repeatedly laid down in former cases, that a verdict cannot be set aside where there is sufficient evidence to sustain it, but a mere scintilla of evidence is not sufficient for that purpose. See Kamalu v. Lovell, 5 Haw. 62, 64, in which the Court quoted with approval the following language from Commissioners v. Clark, 94 U. S. 284: “Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case*, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing iff, upon whom the burden of proof is imposed.” It may be noted, in conclusion, that the Circuit Judge who presided at lhei trial, in denying the motion for a new trial appears to have acted reluctantly and with much hesitation. In passing on the motion, he characterized the evidence relied upon by the plaintiff as extremely weak and unsatisfactory and that of the defendant as strong and convincing.
Counsel for plaintiff calls attention to the fact that certain evidence was offered by him tending to show that payments of money were made by P. Nahaolelua to Kapehe and claims that the evidence was erroneously excluded and that if it had been admitted it would have been dearly sufficient to sustain the
The verdict is set aside and a new trial ordered.
Concurrence Opinion
Concurring- Opinion or
I concur in the foregoing opinion. There can be no doubt, as shown by the opinion in Capitol Traction Co. v. Hof, 174 U. S. 1, that the appellate court as well as the trial court may grant a new trial, but there is at common law, in tbe Federal courts and in most of the State courts a great difference be^tween the powers of such courts in this, respect. . In general the trial court may set aside a verdict of a jury and grant a new trial when the verdict is decidedly against the weight of the evidence, but an apellate court can do this only when there is error of law. But, as held repeatedly, both here and elsewhere, there is error of law if there is no evidence at all or not enough substantial evidence to support the verdict, that is, where there is such insufficiency of evidence in fact to amount to insufficiency in law. “In such cases the evidence is reviewed in the same manner by both trial and appellate- courts.” 14 Ene. Pl. & Pr. 784. As to Hie powers and duties of both appellate and trial courts in granting new trials on the ground of insufficiency of evidence, see Mt. Adams & E. P. I. R. Co., v. Lowery, 74 Fed. Rep. 463; Wright v. So. Exp. Co. 80 Fed. 85. There is, as recognized everywhere, in this, as in many other classes of cases, no fixed standard of easy application to go by. Each case must be judged by itself. But, while the court of course endeavors to uphold verdicts, it has its duty to perform and must exercise it in proper cases. In this jurisdiction the trial court has not gone so far as the Federal and most other courts elsewhere in setting- aside verdicts. As a rule their powers in this respect have been regarded as almost as limited as those of the appellate court. But our Supreme Court has usually followed the piraetice of appellate courts elsewhere, and accordingly our reports are full of decisions declining to- set aside verdicts where
Dissenting Opinion
Dissenting Opinion of
I respectfully dissent. To.set aside the verdict of the jury on the ground that it is not supported by the evidence, is, it seems to me, to Hy in the face of the Seventh Amendment to the Constitution of the Hnited States by re-examining a fact or facts tried by a jury in a manner “otherwise than according to the rules of the common law.” In order that the majority of this court may reach the conclusion that the evidence does not support the verdict of the jury it was necessary to re-examine the facts submitted to the jury. I do not understand that this- can be done. The finding of the jury on the facts is absolutely binding on this court. If there had been no evidence for the plaintiff it would have been the duty of the trial judge to have taken the case from the jury and to have directed a verdict but when the judge determined that there was evidence to go to the jury then the jury became the exclusivo judges of its weight and that finding is only subject to review in the manner pro
Mr. .Justice Gray in delivering the opinion of the Supreme Court of the United States in Capital Traction Company v. Hof, 174 U. S. 1, 13, said:. “It must therefore he taken as established, by virtue of the Seventh Amendment of the Constitution, that either party to an action at law (as distinguished from suits in equity or in admiralty) in a court of the United States,' when the value in controversy exceeds twenty dollar's, has the right to a trial by jury; that when a trial by jury has been had in an action at law, in a court either of the United States or of a State, the facts there tried and decided cannot be re-examined in any court of the United States; otherwise tiran according to the rules of the common law of England; that by the rules of that law, no other mode of re-examination is allowed than npon a new trial, either granted by the court in which the fipst trial w7as had or to which the record was returnable or ordered by an appellate court for errors of law; and therefore that, unless a new trial has been granted in one of those two ways, facts once tried by a jury cannot he tried anew, by a jury or otherwise, in any co-urt of the United States.”
It does not seem necessary for me to express an opinion on the other questions raised by the exceptions since- the judgment of the majority will remand the cause for a .new trial.