Hing v. Yamaoka
| Decision Date | 06 May 1930 |
| Docket Number | No. 1934.,1934. |
| Citation | 31 Haw. 436 |
| Parties | FONG HING v. O. YAMAOKA. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. R. J. O'BRIEN, JUDGE.
Syllabus by the Court
When in an ejectment case undisputed evidence shows that the adverse possession relied upon as a defense did not continue for the statutory period of ten years prior to the commencement of the action, it is error to submit the issue to the jury and a verdict based upon a finding of adverse possession must be set aside.
In this jurisdiction the action of ejectment is not merely possessory, but tries the title as well.
F. Schnack (also on the briefs) for plaintiff in error.
I. M. Stainback ( Huber, Kemp & Stainback on the brief) for defendant in error.
This is an action of ejectment to recover apana 2, L. C. A. 1351, R. P. 5606, to Kamakaniau. The action was commenced on May 24, 1924, and trial was had in January, 1925. The case comes to this court by writ of error.
At the trial it was stipulated that one Keopuhiwa was the common source of the title claimed by the plaintiff and of that claimed by the defendant. Keopuhiwa died in 1908, leaving surviving him a widow, Kanakaole, and nine children. The latter were Kapahu (w), Palile (k), Hana Kaluna (w), Kaai (k), Joseph, John, Kawaa (k) and Kaumalani (w). Joseph conveyed his one-ninth interest by deed of October 17, 1921, to his sisters Kapahu and Hana. (Tr. pp. 3 and 4.) Palile and Kawaa conveyed their two-ninths by deed of April 8, 1924, to the same sisters, Kapahu and Hana. Kaai and John conveyed their two-ninths by deed of April 11, 1924, to Kapahu and Hana. Kapahu and Hana in turn conveyed all their interests by deed of April 12, 1924, to Fong Hing, the plaintiff.
Kalei (w) died without issue, leaving surviving her Mololani, her husband, and Kanakaole, her mother. By descent, therefore, Kalei's one-ninth passed one-half to Mololani and one-half to Kanakaole. Kaumalani (w) died about 1911 without issue, leaving surviving her John Wahilani, her husband, and Kanakaole, her mother. By descent, therefore, Kaumalani's one-ninth passed one-half to Wahilani and one-half to Kanakaole. Wahilani conveyed his interest by deed of January 12, 1925, to the defendant. Kanakaole conveyed all of her interest by deed of April 23, 1919, to the defendant.
Mololani is dead and it was not shown who his heirs are or whether he conveyed his interest to anyone.
All of the foregoing was shown by undisputed evidence. It thus appeared, therefore, that the paper title to seven-ninths was in the plaintiff and to three-eighteenths was in the defendant and that Mololani's one-eighteenth was outstanding in persons unknown. The defendant being in possession at the time this action was brought, it follows, under the established rule that in ejectment a plaintiff must recover upon the strength of his own title and not upon any weakness in the defendant's title, that for the purposes of this case the defendant is to be regarded, prima facie, as holding an undivided four-eighteenths and the plaintiff as holding seven-ninths.
The verdict of the jury read as follows: “We, the jury, in the above entitled cause, find for the defendant.
“8 ninths
“1 ninths to minor.”
Subsequently judgment was by the court entered in which it was recited that the jury returned a verdict “awarding to the defendant eight-ninths of the property in question, and one-ninth to plaintiff,” and in which it was ordered and decreed “that plaintiff have and recover an undivided one-ninth (1/9) interest and that defendant * * * have and recover an undivided eight-ninths (8/9) interest in and to” the property in question. The recital in the judgment that the jury returned a verdict awarding one-ninth to the plaintiff was clearly an error. The verdict awarded one-ninth “to minor,” but not to the plaintiff. The judgment in this respect is not supported by the verdict. Possibly, on the other hand, this error is not available to the plaintiff as a ground for setting aside the judgment since he was not aggrieved thereby, the error being in his favor. However that may be, for other reasons the verdict cannot stand.
Against the plaintiff's showing that he had the paper title to seven-ninths three defenses were offered by the defendant. The first was that he had acquired title to the whole of the property by adverse possession. It was shown by undisputed evidence that Keopuhiwa, the agreed common source of title, in his lifetime had given a lease of the property to one Wing Chong Sing for a term of years ending in October, 1914. In May, 1911 (Keopuhiwa had died in 1908), the widow, Kanakaole, gave a lease to the defendant of the same property for a term of fifteen years “commencing from and after the expiration of the said lease of Keopuhiwa * * * to Wing Chong Sing.” Kanakaole's lease recited that the earlier lease to Wing Chong Sing was from Keopuhiwa and was dated October 12, 1899. While Kanakaole in her lease included a covenant of quiet enjoyment, she nevertheless clearly recognized by that instrument the existence of Keopuhiwa's lease and stipulated that the term which she was granting was not to begin until the expiration of Keopuhiwa's lease to Wing Chong Sing. The defendant's own testimony is that during the term of the earlier lease he paid the rent to Wing Chong Sing and not to Kanakaole. In other words, while Kanakaole's lease might be regarded as an assertion of title by the lessor, there was no attempt by her to take...
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