De Freitas v. Coke

• Decision Date: 02 April 1963
• Docket Number: No. 4169,4169
• Citation: 46 Haw. 425,380 P.2d 762
• Parties: Emmeline DE FREITAS, also known as Emmeline Kaina v. James L. COKE, Alan S. Davis and Frederick Ohrt, Trustees for the Estate of James Campbell, Deceased, and the Kahuku Plantation Co., Ltd.
• Court: Hawaii Supreme Court

Page 762

380 P.2d 762

46 Haw. 425

Emmeline DE FREITAS, also known as Emmeline Kaina v. James L. COKE, Alan S. Davis and Frederick Ohrt, Trustees for the Estate of James Campbell, Deceased, and the Kahuku Plantation Co., Ltd.

No. 4169.

Supreme Court of Hawai'i.

April 2, 1963.

Syllabus by the Court

1. While the common law of England is established and generally recognized in the State of Hawaii, an exception is made in favor of Hawaiian judicial precedent or usage fixed or established before the enactment of Act 57, § 5, Laws of 1892 (now R.L.H.1955, § 1-1).

2. Since the early days of Hawaiian jurisprudence, such term as 'heirs' or other words of inheritance have not been deemed necessary in a deed to convey a fee simple title.

3. The character fo the estate created by a deed is determined by the manifest intention of the grantor as ascertained from a fair consideration of the language employed in the entire document.

4. The doctrine of estoppel cannot be validly invoked by the party urging it in the absence of a showing that he not only has relied on the alleged representation of a material fact or conduct of his adversary but has been misled thereby to his prejudice and detriment; nor does the doctrine apply when the party invoking it had knowledge of or an equal opportunity to ascertain the facts allegedly represented.

5. A claim of title by adverse possession cannot be based upon the possession of an adversary who has never recognized or acknowledged claimant's alleged undivided interest in the land in dispute.

6. Where in an action plaintiff asserts ownership of an undivided interest in land against defendant who claims full title to the same, the burden is on plaintiff to establish his title in the first instance and not on defendant to prove his.

N. W. Y. Char, Honolulu, for appellant.

Frank D. Gibson, Jr., Henshaw, Conroy & Hamilton, Honolulu, for respondents.

Before TSUKIYAMA C. J., WIRTZ, LEWIS and MIZUHA, JJ., and TASHIRO, Circuit Judge, in place of CASSIDY, J., disqualified.

TSUKIYAMA, Chief Justice.

By deed dated September 1, 1923, one Kainanui, as grantor, conveyed certain lands situate in the area of Waialua and Kahuku, Island of Oahu, to his six children, namely: Leialoha Kaleo, Kahalopuna D. Pahu, Hooliliamanu (Manu) Ah Quinn, Kala Simeon Kalua, Waianuenue Spillner, and Kini Kaina.

Inasmuch as the controversy here involved requires an interpretation of the terms of the conveyance in relation to the character of the respective estates granted, this court has given careful scrutiny to the following pertinent portions of the deed in question:

'I, Kainanui (K), do hereby sell, give and convey absolutely to my beloved children, Leialoha Kaleo (W), Kahalaopuna D. Pahu (W), Hooliliamanu Ah Quinn (W), Kala Simeon Kalua (W), Waianuenue Spillner (W) and Kini Kaina (K), all of my real property described below, to be apportioned as it is apportioned in this instrument, as follows:

'To Leialoha Kaleo (W), I do hereby set apart, sell, give and convey absolutely to her, the lands and portions of Land Claims, as follows:'

(Here follows description of fourteen (14) parcels or groups of parcels of land; included therein is the land of Waikomo, being within Section One referred to below but not here in dispute.)

'And to my remaining children, Kahalaopuna D. Pahu (W), Hooliliamanu Ah Quinn (W), Kala Simeon Kalua (W), Waianuenue Spillner (W), and Kini Kaina (K), I set apart, sell, give absolutely to each of them one fourth (1/4) acre within the boundaries of the premises known in the name of Waikomo, and being within the Section One (1) described above. There is reserved, however, by this conveyance the burial plot, which is not to be destroyed.

'To Have and to hold unto my beloved children Leialoha Kaleo (W), Kahalaopuna D. Pahu (W), Hooliliamanu Ah Quinn (W), Kala Simeon Kalua (W), Waianuenue Spillner (W), and Kini Kaina (K), the said land and portions of Land Claims conveyed in this Deed, together with all rights and benefits, and to their heirs, administrators and executors forever.'

Leialoha Kaleo died intestate in 1932. Her legally adopted son, John Kepoo Kaleo, during the years 1936 and 1938 conveyed his inherited interest in his mother's lands to the Trustees of the Estate of James Campbell, deceased (defendants-appellees), or to William K. Rathburn in separate portions. The latter subsequently conveyed his portions to the former. Thereafter the Trustees leased the lands so acquired to Kahuku Plantation Company and Hawaii Meat Company, commencing in July 1933, and collected rents from them and paid all real property taxes. According to plaintiff-appellant the evidence does not tie up the Kaleo who made these deeds with the grantee named in the 1923 deed, but we think this point not well taken.

Kini Kaina, one of Kainanui's children named in his deed, died, leaving his son, Henry K. Kaina, as his heir. Plaintiff-appellant married said son in January 1932, but the latter died in December 1933, leaving a daughter, Alice Cox Kaina, who was born on November 7, 1932. In 1952, said daughter conveyed to plaintiff-appellant, her mother, her interest in the property left by her father. It is conceded that this deed was on a nominal consideration, for love and affection.

Plaintiff-appellant, claiming an undivided 1/10th interest in the fourteen (14) parcels of land described in the grant to Leialoha Kaleo, instituted proceedings in the First Circuit Court for confirmation of such interest and for an accounting from defendants-appellees of rentals collected from their tenants. After trial jury-waived, the trial court denied the claim and entered judgment in favor of defendants-appellees. From said judgment plaintiff-appellant has taken this appeal.

The evidence shows that upon the death of Henry K. Kaina, intestate, his estate was administered in probate in the First Circuit Court and there was listed in the inventory and undivided 1/10th interest in the lands here in dispute, and that the Tax Office records showed such interest in the deceased and an undivided 9/10ths interest in the Campbell Estate. It is also shown by the record of the court below that, in response to plaintiff's interrogatories, defendants claimed ownership of a 9/10ths interest in said lands and averred ignorance as to who owned the remaining 1/10th, but subsequently filed a supplemental answer to the interrogatories claiming absolute title in fee simple to all the lands in question.

Appellant raises, inter alia, several issues involving the interpretation of Kainanui's deed of September 1, 1923, the questions of estoppel and adverse possession, and alleged errors in the admission of evidence.

The issue of prime importance in this case, we perceive, is that which relates to appellant's claim that all six children of Kainanui acquired a fee simple title to the subject lands as tenants in common. Such claim is based upon the fact that Kainanui's deed, in the granting clause conveying said lands to Leialoha Kaleo, omitted the word 'heirs.' It is contended by her that such omission under the common law resulted in a grant to Leialoha Kaleo of an estate for life and that the same situation prevailed with reference to the 1/4th acre granted to each of the other five children in the so-called Waikomo property. She urges that all six children, therefore, acquired a fee simple title to all the lands described in the deed under and by virtue of the habendum clause which did contain words of inheritance, to wit, 'and to their heirs, administrators and executors forever.'

Appellant's argument to the contrary notwithstanding, the common law rule requiring words of inheritance to establish a conveyance of real property in fee simple has not obtained in the Territory, now State of Hawaii. R.L.H. 1955, § 1-1, ¹ upon which appellant relies, adopts the common law of England 'except as otherwise expressly provided * * *, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; * * *.'

Prior to 1892, the courts of Hawaii rejected the common law rules in certain aspects, thus establishing Hawaii's own judicial precedent. One of them was that the word 'heirs' was deemed unnecessary for the purpose of making a fee simple conveyance. Hemen v. Kamakaia, 10 Haw. 547; Branca v. Makaukane, 13 Haw. 499; Keanu v. Kaohi, 14 Haw. 142; Kaleialii v. Sullivan, 23 Haw. 38; In Re Rosenbledt, 24 Haw. 298. In Kaleialii v. Sullivan, supra, it was held, in construing a deed executed in 1858, that 'the word 'heirs' was not essential to convey a fee simple' in Hawaii, and that even if the law were otherwise the absence of the word 'heirs' in the granting clause was immaterial when the language of the instrument showed the grantor's intention to convey a fee simple title. ²

It is apparent that when the legislature adopted Act 57 in 1892 (now § 1-1, R.L.H.1955), it was cognizant of the fact that before such enactment, the courts of Hawaii had not adopted the common law of England in toto and consequently made certain qualifications. Accordingly, it was deemed necessary to provide for exceptions. While this is the first instance of a deed executed after the 1892 statute in which omission of words of inheritance has been involved, Rosenbledt, supra, 24 Haw. 298, foreshadowed that the rejection of the common law rule was not limited to deeds executed before said statute, and we so hold.

As repeatedly held by this court, in the construction of a document the intention of the party or parties ascertained from a fair consideration of the language employed in the entire document must control. This principle applies as a master rule where, as here, the grantor has omitted from the granting clause of his deed certain stereotyped words required by the common law denoting limitation of the estate granted but has set forth words of inheritance in a single habendum clause which consolidates the names of all the grantees, although each of them is...