In re Petition of Lewers & Cooke, Ltd.

• Decision Date: 05 March 1908
• Court: Hawaii Supreme Court
• Parties: IN THE MATTER OF THE PETITION OF LEWERS & COOKE, LTD.

18 Haw. 625

IN THE MATTER OF THE PETITION OF LEWERS & COOKE, LTD.

Supreme Court of the Territory of Hawai‘i.

Argued January 21, 1908.

Decided March 5, 1908.

APPEAL FROM COURT OF LAND REGISTRATION.

Syllabus by the Court

Where land is devised to A for life, remainder to B for life, remainder to C in fee, and A conveys all his interest to B and then outlives B, the statute of limitations does not begin to run against a grantee of C until the death of A.

A land commission award is a final adjudication of all claims to the land awarded existing prior to December 10, 1845.

Upon a bill alleging breach of fiduciary duty in the obtaining of a land commission award a decree was rendered in 1858 ordering the guardian of the minor heirs of the awardee to convey the land. No conveyance was made. Held that the decree, being a collateral attack on a land commission award, was erroneous as a matter of law, and that the court of land registration in 1907 should not enforce it by registering the title of those claiming under the decree as against the outstanding legal title.

Lyle A. Dickey ( E. M. Watson with him on the brief) for Mary H. Atcherley.

W. A. Greenwell ( Castle & Withington on the brief) for Lewers & Cooke, Ltd.

HARTWELL, C.J., WILDER AND BALLOU, JJ.

OPINION OF THE COURT BY BALLOU, J.

This is an appeal by Mary H. Atcherley from a decree of the court of land registration registering the title of Lewers & Cooke, Ltd., to a parcel of land comprising portions of L. C. A. 129 to Kinimaka, L. C. A. 729 to Kekuhaupio and land described in the deed from the minister of the interior to estate of B. P. Bishop dated July 8, 1899. The appellant claims title to all that part of the land covered by apana 1 of L. C. A. 129, R. P. 1602 to Kinimaka and shows a complete legal title as follows:

1. Land Commission Award 129 to Kinimaka dated April 10, 1849.

2. Royal Patent 1602 to Kinimaka issued August 30, 1853, upon payment of the government commutation.

3. Will of Kinimaka, who died in 1857, devising all his property to his daughter, Kaniu Kinimaka, for her lifetime then to his son David Leleo Kinimaka for his lifetime, the remainder to his son Moses Kapaakea Kinimaka.

4. Death of the first life tenant, Kaniu, January 4, 1901, she having survived the second life tenant, David Leleo, who died in 1884.

5. Deed dated May 18, 1897, from the remainderman Moses Kapaakea Kinimaka, conveying all his interest as heir of Kinimaka to Mary H. Atcherley the present appellant, who was his niece and a daughter of David Leleo Kinimaka.

Against this chain of legal title the petitioner claims in rebuttal (1) adverse possession, and (2) equitable title by virtue of a decree in the supreme court dated November 2, 1858, in a case entitled David Kalakaua v. Pai and Richard Armstrong, Guardian, decreeing that Richard Armstrong, guardian of Kaniu, David Leleo and Moses Kapaakea Kinimaka, minor children of Kinimaka, deceased, convey to Kalakaua, petitioner's predecessor in title, the land in controversy.

Although David Kalakaua and those claiming under him have been in possession of the land since the decree of the supreme court in 1858, they have acquired no adverse possession as against appellant, who claims by deed from the remainderman, Moses Kapaakea, sometimes called Kinimaka in the early proceedings. No right of action accrued to Moses Kapaakea until the death of the first life tenant on January 4, 1901, and the appellant, who had previously obtained a deed, brought ejectment in July of the same year against the Kapiolani Estate, Ltd., then in possession of the premises, which suit is still pending. The fact that the first life tenant, Kaniu, conveyed in 1880 all her interest to David Leleo, the second life tenant, who died in 1884, did not accelerate any right to possession in the ultimate remainderman, but by the specific terms of our statute the appellant's right to commence an action must be deemed to have accrued when the first life estate would have expired by its own limitation. R. L. Sec. 1990.

It is urged that the first life estate became extinguished by merger in the second, so that the statute of limitations began to run upon the death of David Leleo, but the common law doctrine of merger, even if not precluded by the language of the statute, and if applicable to the prejudice of a stranger (Co. Litt. 338b) would have no application to the conveyance of a disseizee, whose deed would probably convey nothing at common law. Mossman v. Hawaiian Government, 10 Haw. 421. Still less could it apply to the conveyance of Kaniu in the present case, made at a time when her life estate had already been lost by the adverse possession of Kalakaua. Moore v. Luce, 29 Pa. St. 260.

Nor is the situation altered by the fact that appellant is the daughter of the second life tenant, for any estate per autre vie which she might have inherited at her father's death had long been barred, and even if she had acquired a right at that time it would have been no bar to the maintenance of her right subsequently acquired as grantee of the remainderman. Angell, Limitations, Sec. 375; Wells v. Prince, 9 Mass. 508. It is urged that a lost deed may be presumed, but we know of no case in which this doctrine has been invoked against a person in the situation of appellant, who does not claim under those who have suffered long and unexplained possession by the adverse party, but under the newly accrued right of a remainderman.

The equitable claim presents more difficulty. The appellant's ejectment suit against the Kapiolani Estate, Ltd., was met by a bill in equity filed by the latter admitting that the “bare legal title” was held by appellant, and praying that a conveyance by the present holder of that title might be decreed in conformity with the decree of 1858. Upon demurrer this court held that the bill stated a cause of action. Kapiolani Estate, Ltd., v. Atcherley, 14 Haw. 651. The case was remanded, and defendant answered, after which the land now in controversy was sold by the Kapiolani Estate, Ltd., to the present petitioner, which applied to the court of land registration for a registered title. It is conceded on both sides that the court of land registration has authority to determine all questions, both legal and equitable, involved in the title to land, so that the question is substantially the same as that presented by the bill in equity brought by the Kapiolani Estate, Ltd.

A full statement of the facts leading up to the supreme court decree of 1858, as stated in the petition of the Kapiolani Estate, Ltd., may be found in the decision referred to. The record in the case now before us covers the same ground with some amplifications. Previous to the establishment of the land commission the land, according to the claim filed by Kinimaka, had been given him by Liliha. According to petitioner's contention it belonged to Kinimaka's wife Kaniu, who died in 1844, having made an oral will, then good according to the custom of the country, giving the property to her adopted child David Kalakaua, then an infant eight years old. Kinimaka, the husband of Kaniu, reported this will to the king, according to custom, but the king, according to the testimony of Governor Kekuanaoa before the probate court, disapproved it on account of the tender years of Kalakaua, and awarded the land to Kinimaka. Thereafter the board of land commissioners was established and Kinimaka presented and proved his claims and obtained an award. The land commission records show that in his petition, resulting in award 129, Kinimaka claimed three pieces of land in the same vicinity, the first as having been given by Leleahano to Hewahewa, thence to Kapiiwi and to himself; the second as having been given by Kauikeaouli to Kaniu and by Kaniu to himself; and the third as having been received from Liliha, Kahikona being the witness. The testimony before the land commission apparently applied to one parcel only, and refers to Kaniu's previous ownership, no record appears of the witness Kahikona having been examined, but all three parcels were awarded, the third as claimed becoming apana 1, which is the land in controversy.

Upon coming of age David Kalakaua filed a bill in equity against Kinimaka to enforce a trust upon all the lands owned by Kaniu, claiming two pieces of land on Hawaii, one on Molokai, one-half of Keana on Oahu, and “certain houselots and small divisions of land in and near Honolulu” described in L. C. A. 129. Upon Kinimaka's death Kalakaua filed a suggestion of his death asking that his heirs be made parties, but apparently abandoned this proceeding and applied in probate for proof of Kaniu's oral will and for his appointment as administrator of her estate.

The probate court decided that a verbal will made prior to the organic laws of 1846 could be probated and that the provision of the old laws that the king and premier must be informed of all bequests of lands did not authorize the veto which had been exercised by the king in this case. The will was accordingly admitted to probate and letters testamentary issued to David Kalakaua. Estate of Kaniu, 2 Haw. 82.

Armed with this decision, which, though not purporting in terms to deal with any intervening rights to the real estate, was a substantial recognition of his claim, David Kalakaua brought a new proceeding in equity covering only two houselots in Honolulu awarded by L. C. A. 129, R. P. 1602, an ahupuaa on Molokai and a taro patch on Oahu. The bill was directed against Pai, widow of Kinimaka, and Richard Armstrong, guardian of Kaniu, David Leleo and Kinimaka, minor children of Kinimaka. Pai and Armstrong answered, leaving petitioner to his proof of all material allegations except those of record, but averring “that if the awards have wrongfully been issued to the said Kinimaka, the same were issued upon testimony produced to the Board of Commissioners to quiet land titles, which satisfied that Board that the said...