Hayselden v. Wahineaea

• Decision Date: 22 March 1893
• Citation: 9 Haw. 51
• Parties: TALULA L. HAYSELDEN v. WAHINEAEA. (W.)
• Court: Hawaii Supreme Court

9 Haw. 51

TALULA L. HAYSELDEN v. WAHINEAEA. (W.)

Supreme Court of Republic of Hawai'i.

March 22, 1893.

DECISION APRIL 12, 1893.

EJECTMENT. EXCEPTIONS.

Syllabus by the Court

A devise of land by will was uncertain as to which of two lots Nos. 2 and 3, was devised to A. Defendant, the purchaser of lot No. 2 sold it nineteen years ago describing it in the deed as the lot purchased of A, and the adjoining lot No. 3 as the property of B. Defendant thereafter took possession of lot No. 3. In an action by the grantee of B to recover possession of lot No. 3 of defendant, there must be more evidence than defendant's denial that she executed the deed of lot No. 2 to disprove the estoppel claimed as the effect of her deed, as showing her construction of the devise. The evidence showing that the jury must have acted in giving their verdict for defendant through bias or misunderstanding, the verdict is set aside and a new trial ordered.

C. W Ashford, for plaintiff.

J. Nawahi, for defendant.

JUDD C.J., BICKERTON AND FREAR, JJ.

OPINION

BICKERTON, J.

The case was first heard at the October Term, 1892, of the Supreme Court, and the jury disagreed and were discharged. The case came on again for hearing at the February term, 1893, of the First Circuit Court under the Act to Reorganize the Judiciary Department, and the jury rendered a verdict for the defendant. On the 23d of February plaintiff, by her attorney, filed a motion for a new trial on the ground that the verdict was contrary to the weight of evidence and to the law as laid down in the charge of the Court. On the 28th of the same month the said motion was argued before Frear, J., the judge presiding at the trial, and the Court overruled the motion. The matter now comes here on a bill of exceptions to the ruling of the Court in having denied said motion.

The history of the case is briefly as follows: About the year 1867 one Makaioulu died leaving the property mauka of Queen street in Honolulu, marked as Lots 1, 2 and 3 on the map which was introduced in evidence. By his will he divided the property into three lots, but without stating the metes and bounds of any of them, leaving lot 1 to his widow for life, remainder to Kalo, his daughter, Lot 2 to his brother Keana for life, remainder to Kekipi, wife of Keana, and Lot 3 to his daughter Kalo. There is practically no dispute as to the location of Lot 1, which is conceded to have been the makai portion, as marked on the map. But the mauka kuleana, apparently intended to constitute Lots 2 and 3, now furnishes the dispute as to which is Lot 2 and which is Lot 3.

It was in evidence that the residence of Makaioulu was so situated as that the language of the will would, or at least might, indicate the Ewa side of the mauka kuleana as being that left to Keana, and to which both parties hereto now claim title. It is conceded that defendant succeeded by regular conveyances to the title of Keana, and plaintiff's claim is founded upon a division of the mauka kuleana in 1876, between defendant and Kalo, whereby defendant assumed ownership of the Waikiki part (marked 2 on the map), and Kalo assumed ownership of the Ewa portion (marked 3 on the map) and it is upon those deeds, then executed, that plaintiff chiefly relies.

Makaioulu died in 1867; his wife died soon after, and left Kalo, their daughter, a minor, who was placed under successive guardians, among whom was the defendant, her aunt. Defendant lived in the same house with the Makaioulu family, and after the deaths referred to, continued there with Kalo the minor until the house became unfit for occupation. That house was Lot 1 on the map, Kalo's title to which is not questioned. When that house became uninhabitable (defendant having in the meantime bought the Keana interest from Keana's widow) defendant took what material was useful in the old house, and with other and newer material built a house mauka of the old one on the lot marked 3 on the map. Defendant and Kalo (then still a minor) went to live in the newer house, and there continued till Kalo came of age, and still later got married and went to live on Kauai.

In the meantime, in 1874, defendant and Kalo executed a mortgage as co-owners of the present Lots 2 and 3 (the entire mauka kuleana) to M. McInerny, wherein they assumed to be owners of the entire kuleana. There was some controversy as to the execution of this mortgage, but the facts were very fully proven by His Honor the Chief Justice, who drew the mortgage, and who identified defendant to J. H. Paty, who took her acknowledgment. The execution of this instrument was on the first trial flatly denied by defendant; but on the second trial she modified that denial into a failure of memory.

The McInerny mortgage was soon after transferred to Kekuanaole (apparently for Fanny Young Kekelaokalani); and when it matured, Fanny Young's agent, Kekuanaole, went to defendant and Kalo where they were living on the land in issue and demanded payment. Defendant, in her evidence, says: " He asked us to pay what we owed, and we replied that we had no money." It was then arranged that they should make conveyance of their land in order to pay off the mortgage, and the deed from defendant to Fanny Young, covering the Waikiki portion (Lot 2 on map), and the mortgage from Kalo to Fanny Young of the Ewa portion (Lot 3 on map) of the mauka kuleana, were the results of that effort to pay off the McInerny mortgage.

At the...