Kainea v. Kreuger

• Decision Date: 05 October 1929
• Docket Number: No. 1891.,1891.
• Citation: 31 Haw. 108
• Parties: ANNA KAINEA, IDA LONG AND F. C. WARREN v. THOMAS KREUGER AND GEORGE KAHA.
• Court: Hawaii Supreme Court

31 Haw. 108

ANNA KAINEA, IDA LONG AND F. C. WARREN

v.THOMAS KREUGER AND GEORGE KAHA.

No. 1891.

Supreme Court of the Territory of Hawai‘i.

Submitted July 17, 1929.

Decided October 5, 1929.

APPEAL FROM CIRCUIT JUDGE SECOND CIRCUIT. HON. D. H. CASE, JUDGE.

Syllabus by the Court

While payment of taxes may be shown in support of a claim of the acquisition of title to land by adverse possession. tax receipts which in no way identify the land upon which the taxes were paid are not admissible in evidence.

The declarations of a person in possession of land as to the nature of his claim tend to prove the hostility necessary to an adverse holding and are admissible in evidence in support of a claim of adverse possession; but declarations which are mere narratives of past occurrences are not admissible as part of the res gestae.

Possession by an agent or by a tenant under an adverse holder of land inures to the benefit of the latter and satisfies the requirements of the statute of limitations. Personal occupation by the adverse claimant is not necessary.

The several possessions of successive disseizors cannot be tacked together so as to make a continuous possession, but where there is such a privity of estate or title as that the several possessions can be referred to the original entry, they may be joined and are regarded as a continuous possession, as in the case of landlord and tenant, ancestor and heirs, and vendor and vendee.

The privity required to constitute continuous adverse possession may be effected by any conveyance, agreement or understanding which has for its object a transfer of the rights of the original entry.

No written evidence of a transfer of possession is necessary when the holding is under claim of the first entryman. All that is necessary to privity between successive occupants of property and in regard thereto is that one receive his possession from the other by act of such other or by operation of law.

E. Vincent for petitioners.

E. R. Bevins for George Kaha, respondent-appellee.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PERRY, C. J.

This is a suit in equity for the partition of a piece of land three and one-half acres in area, known as the ili of Paukukalo, in Wailuku, Maui, and being apana 2, R. P. 4256, L. C. A. 3234, to Kaianui. The allegations of the petition are that the three petitioners and the respondent, Thomas Kreuger, are owners of undivided interests in the land and that the respondent, George Kaha, is the owner of a right of dower in an undivided one-fourth interest, having acquired the same by conveyance. Respondent Kreuger admitted the allegations of the petition to be true, but the respondent Kaha filed an answer in which he claimed ownership in fee simple of a certain portion of the land containing an area of seventeen one-hundredths of an acre and therein described by metes and bounds, alleging further that he and his predecessors in interest had held adverse possession of this particular portion of the land for more than the statutory period prior to the date of the institution of these proceedings. In conformity with the provisions of chapter 159, R. L. 1925, relating to partition of real estate and the settlement of disputed questions of title, a jury was called in the partition suit and trial was had before it of the issue thus presented by the pleadings as to whether Kaha was the owner in fee simple of the particular portion containing an area of seventeen one-hundredths of an acre or was merely the holder of a dower interest in an undivided one-fourth of the whole area of three and one-half acres. The jury by its verdict found that Kaha was the owner of the seventeen one-hundredths of an acre and had acquired title thereto by adverse possession. A commissioner having reported that the remainder of the land could not be equitably divided in kind, a decree was entered in conformity with the verdict and the report of the commissioner, declaring that Kaha was the owner in fee simple of the particular portion which he claimed and ordering that the remainder of the land be sold by the commissioner and the proceeds divided amongst those entitled thereto. From this decree the petitioners appealed to this court, assigning errors in the conduct of the trial before the jury and in the verdict.

On behalf of Kaha evidence was adduced tending to show that prior to August 1, 1913, one George D. Kahaokamoku, Sr., enclosed the seventeen one-hundredths of an acre with a substantial fence and from that time until his death on March 23, 1919, continuously occupied the property openly and under claim of ownership; that for a period of one or two weeks immediately following the death of Kahaokamoku, Sr., Hanapule, his widow, held and occupied the property and then sold either all of the furniture that was in the house, or all of it that was serviceable, proceeded to Honolulu and never again returned to the land; that almost immediately after her departure for Honolulu Kaha, the present respondent, who was the keiki hanai of Kahaokamoku, Sr., took possession of the piece of land (seventeen one-hundredths of an acre) and either himself or through tenants of his maintained possession openly and under claim of ownership, continuously until the time of the trial.

Kaha gave testimony to the effect that during the whole of the period of the occupancy of Kahaokamoku, Sr., and of his own occupancy, he had every year paid taxes on the land, excepting in 1926 when, as he testified, W. F. Kaae, his tenant, paid them. In support of this claim of payment of taxes the respondent offered certain tax receipts for the years 1913, 1914, 1915, 1916, 1917, 1918, 1920, 1921, 1922, 1923 and 1924, and these, against the objection of the petitioners, were admitted in evidence. The receipts do not show upon their face upon what property the taxes represented by them were paid. They were not legal evidence tending in any way to show that in the years mentioned Kaha, the respondent, had paid taxes on the particular piece of land, seventeen one-hundredths of an acre in area, which was involved in the controversy before the jury. They have no proper tendency to prove the fact in support of which they were offered, to-wit, payment of taxes on that particular piece of land.

While there was evidence in the case tending to prove Kaha's claim of adverse possession,--evidence, it may be assumed, sufficient to support the verdict in that respect--there was on the other hand abundant evidence tending to show that the claim of a possession by the respondent since the death of Kahaokamoku, Sr., which was continuous, open and hostile had no foundation in fact and showing further that ever since the death of Kahaokamoku, Sr., the land and the building thereon had, for a period of three or four years, remained wholly unoccupied and that during that period the fence had not been kept up but had been allowed to fall into decay, the land was untilled and no signs of actual possession were visible on the property. If a verdict had been rendered for the petitioners, it would have been amply supported by evidence before the jury. In other words, upon the issue as to whether Kaha had had possession that was actual and open, continuous and hostile, the evidence was highly conflicting. How far the jurors were moved to reach the verdict for the respondent by the tax receipts under consideration, cannot be known. For aught that appears to the contrary they may have constituted the deciding piece of evidence which led to a verdict for the respondent. “Reversible error...