Hewahewa v. Lalakea
| Decision Date | 15 October 1923 |
| Docket Number | No. 1447.,1447. |
| Citation | 27 Haw. 544 |
| Parties | LILLY HEWAHEWA v. SOLOMON K. LALAKEA. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FOURTH CIRCUIT. HON. J. W. THOMPSON, JUDGE.
Syllabus by the Court
The decision of the circuit judge jury waived will not be set aside on appeal where there is evidence to support it.
Upon writ of error this court is prohibited under the provisions of section 2523, R. L. 1915, Act 44, S. L. 1919, from reversing any finding depending upon the credibility of witnesses or the weight of evidence and assignments of error to findings of fact will not be disturbed if sustained by evidence more than a scintilla.
It is not essential to the validity of a deed that the grantor should actually affix his signature thereto with his own hand unassisted but the deed will be binding upon him if he affixes his signature while another at his request guides his hand in so doing.
Where the judgment is supported by proper findings it is not vitiated by findings on immaterial points; such findings may be treated as surplusage.
Where the court found as facts a manual delivery coupled with the intent in the grantor to part with all dominion and control over the deed and to make the same effective as a present conveyance of the premises subject thereto there has been a sufficient delivery of the deed.
Where a deed contains a reservation of a life estate in the grantor such fact raises a strong presumption that it was intended that the title should vest in the remainderman.
The burden of proving a former adjudication is on the party setting it up.
Tenants in common do not claim through or under each other and therefore there is no privity between them that a judgment for or against one of them affecting the land will bind or redound to the benefit of the other.
H. Edmondson ( Lightfoot & Lightfoot with him on the briefs) for plaintiff in error.
W. H. Smith ( C. S. Carlsmith with him on the briefs) for defendant in error.
This is an action at law to quiet plaintiff's title to an undivided one-seventh interest in fee in and to the entirety of or undivided moieties in twenty-five pieces of real property enumerated in the schedule attached to the complaint.
Both parties claim through a common source of title-their father T. K. Lalakea who died May 7, 1915, intestate-the plaintiff as one of his heirs at law, the defendant as grantee in a deed of the premises in question alleged to have been executed and delivered by his father to him on March 6, 1915.
The heirship of plaintiff and the quantum of interest claimed by her provided the intestate died seized of the premises in question are conceded by the defendant. The plaintiff claimed that the deed to the defendant was never executed and/or delivered to him by the intestate, in short that it was a forgery, and even if valid was testamentary in character, that is, a will and not a deed.
The cause was tried jury waived in the fourth circuit court, the Honorable James W. Thompson of the third circuit substituting for the Honorable Homer L. Ross, judge of the former court, disqualified.
The issues were confined to those of execution and delivery of the deed under which defendant claims.
Upon the opening of the trial the parties filed the following stipulation of facts:
“1. That T. K. Lalakea in his lifetime was seized of the property described in the plaintiff's declaration;
2. That the said T. K. Lalakea departed this life May 7, 1915, intestate, leaving as his heirs at law the following named persons:
+------------------------------------------------------------+
¦1¦Solomon K. Lalakea, ¦ ¦a son, ¦
+-+-----------------------+-+--------------------------------¦
¦2¦Lilly Hewahewa, ¦ ¦a daughter, ¦
+-+-----------------------+-+--------------------------------¦
¦3¦Jennie K. Aona, ¦ ¦a daughter, ¦
+-+-----------------------+-+--------------------------------¦
¦4¦Hannah Makainai, ¦ ¦a daughter, ¦
+-+-----------------------+-+--------------------------------¦
¦5¦George Lalakea, ¦ ¦a son, ¦
+-+-----------------------+-+--------------------------------¦
¦6¦Jack Kawaha, ¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦ ¦Kamaunu Kawaha, ¦}¦Children of a deceased daughter,¦
+-+-----------------------+-+--------------------------------¦
¦ ¦alias Kanamu Kawaha, ¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦ ¦Kauoho Keaulani Kawaha,¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦ ¦Maemae Kawaha, ¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦7¦Lily Rose Hewahewa, ¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦ ¦alias Lily Aiau, ¦}¦Children of a deceased daughter,¦
+-+-----------------------+-+--------------------------------¦
¦ ¦Thomas Aona, ¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦ ¦alias Thomas Aiau, ¦}¦ ¦
+-+-----------------------+-+--------------------------------¦
¦8¦Maria Lalakea, ¦ ¦a daughter; ¦
+------------------------------------------------------------+
3. That after the decease of the said T. K. Lalakea and before the commencement of this action the said Maria Lalakea departed this life intestate, leaving the persons named above, except herself, as her heirs at law;
4. That if the defendant shall offer evidence of a purported deed alleged to have been executed by T. K. Lalakea to Solomon K. Lalakea, defendant herein, March 6, 1915, and if such evidence shall be accepted by the court, then it is agreed that section marked 8 of the description of the various parcels of property therein shall be considered by the court as intended by the said T. K. Lalakea to convey the one-half interest in the property described in section 26 of plaintiff's declaration, if the said T. K. Lalakea by said instrument conveyed any property whatsoever;
5. That the declaration shall be amended by striking out section 8 of the schedule describing the property.”
Thereupon plaintiff rested. The defendant having introduced in evidence the deed to him of March 6, 1915, rested. Thereafter both parties offered evidence for and against the execution and delivery of the deed in question.
The court rendered a decision holding in effect that the deed to Solomon K. Lalakea was duly executed and delivered to him by his father, T. K. Lalakea, and ordered judgment accordingly for the defendant. The plaintiff prosecuted error.
The trial court's decision with inclusive parentheses indicating the findings of fact complained of and the number of the corresponding assignment of error is as follows:
“This cause came on to be heard on January the 16th, 1922, and the hearing continued from day to day until completed. No jury was demanded, hence the hearing was by the court. Certain witnesses were sworn regularly and heard-certain documents were submitted, and after a full and complete hearing the court took the matter under advisement. After the court had waited for more than one and a half months for briefs and none were filed, the court undertook to pass upon the law and the facts involved without the aid of such briefs.
The plaintiff claims a one-seventh undivided interest in all the property set out in the bill of complaint, and asks the court to so adjudge and decree.
It is agreed and stipulated by both parties to the cause, that this property, as set out, was formerly the property of T. K. Lalakea, and that the said T. K. Lalakea was the father of both plaintiff and defendant, and that if the plaintiff was entitled to any part of the property set out she would be entitled to a one-seventh part-and that the said T. K. Lalakea died May 7th, 1915.
Certain alleged deeds-the deeds to the tracts of land set out in the bill of complaint, were presented for the consideration of the court.
It appears to the court, from all the evidence, that as many as five deeds were prepared by Mr. O. T. Shipman, an attorney at law, at the request of the said T. K. Lalakea, and were delivered to the said T. K. Lalakea, in blank, however, at the home, and to the person of the said T. K. Lalakea, he being at that time not able physically to leave his house, said deeds undertaking to convey all of his real estate to his several children individually.
(“It further appears that the said T. K. Lalakea was a county official at that time and”) (Assignment No. 3) “that he had instructed Mr. O. T. Shipman to draw said deeds-(that he wanted to dispose of his property-that he feared his deputy was involved, but that he himself was responsible for the funds of his office and that he wanted to save his property if anything happened”) (Assignment No. 3 continued) “or words to that effect.”
(“It appears from the deeds themselves that on March 6th, 1915, the said T. K. Lalakea did sign the said deeds, in the presence of Solomon K. Lalakea and one Namahoe.”) (Assignment No. 4) (“These deeds were presented in evidence and the said Solomon K. Lalakea and Namahoe appeared as witnesses and identified their own signatures as witnesses to the signature of T. K. Lalakea.”) (Assignment No. 5)
(“The said T. K. Lalakea signed several of the deeds at the same time, conveying certain other pieces of property to his other children.”) (Assignment No. 6) (“At that time he was so weak and physically impoverished that his hand had to be held and guided so that he could write at all.”) (As...
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Chun Chew Pang v. Chun Chew Kee
...of error comes within this category. On the basis of the Duberstein test this resolves itself into one of fact, as in Hewahewa v. Lalakea, 27 Haw. 544, the question of delivery, being one of intention, has been held to be a factual determination under the circumstances of each case. Cf., Ye......
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Maki v. City of Honolulu
...v. Pali, 14 Haw. 517; Darcy v. Harmon, 30 Haw. 12.) The same rule applies to decisions of circuit judges, jury waived. (See Hewahewa v. Lalakea, 27 Haw. 544.) Confronted with this contradictory testimony the jury was free to resolve the questions in favor of either the plaintiff or the defe......