Keelikolani v. Robinson

• Decision Date: 01 June 1862
• Citation: 2 Haw. 514
• Parties: L. KEELIKOLANI v. JAMES ROBINSON.
• Court: Hawaii Supreme Court

2 Haw. 514

L. KEELIKOLANI v. JAMES ROBINSON.

Supreme Court of Kingdom of Hawai'i.

June 1, 1862

Syllabus by the Court

GENERAL demurrer to the bill; that at the early settlement of these Islands by foreigners, there was no law of inheritance overruled-the Court being of opinion that there was a common law of inheritance liable to be modified or defeated, but perfectly good until such an event.

An inheritance recognized by the King, as alleged in the bill would be valid.

A tenant can neither deny his landlord's title in ejectment, nor set up an outstanding or paramount title in himself or a third party; but he must first restore the possession which he obtained from his landlord, and then as plaintiff, he may avail himself of any title he may have acquired.

General demurrer overruled, when there is any equity in the bill.

An eviction under a paramount title must take place before the lessee or grantee can avail himself of it as a defense on his own contract.

Messrs Harris and Davis for complainant.

Messrs Bates and Montgomery for respondent.

ALLEN C. J., delivered his decision, overruling the demurrer taken to the amended bill, as follows:

It appears by the bill that Kalaimoku entered into an agreement with the respondent in which he assigned to him, his heirs executors, administrators and assigns half of the wharf called the King's wharf, situate in Honolulu, and that said respondent for himself, his heirs, executors, administrators and assigns, agreed to pay half of all expenses incurred in altering, repairing and improving said wharf, and to pay Kalaimoku, his heirs, executors, administrators and assigns one-half of all the moneys received for the use of said wharf and premises, and said Kalaimoku agreed to pay half of all the expenses incurred in altering, repairing and improving said wharf.

The agreement bears date January 11, 1827.

Said respondent, in pursuance of said agreement, entered upon the premises, and has continued to occupy them till the day of filing the bill. And the bill further alleges that the respondent presented to the Board of Land Commission a claim based on the above recited agreement, and the following record and award was made (the said) respondent having set forth that he was deprived of a portion of the land supposed to be included in the agreement referred to; and His Excellency, Mataio Kekuanaoa, at that time acting for the heir of Kalaimoku, having agreed to add to the portion described thereafter as Part 1st, that described at Part 2d: " We accordingly confirm the claimant, James Robinson, his heirs, executors, administrators and assigns, in the same rights and privileges in the lot, ‘ commonly called the Point, ’ and now including the additional piece under part No. 2, as they are both designated in the surveys of T. Metcalf, as set forth in the award, as were granted in the original conveyance, and given in full in this award, and subject at the same time to the same rules and conditions as are therein contained" -the whole instrument, as quoted, being now confirmed by this Board, in full application to the present claim, and correctly described in surveys of Part 1st and 2d.

It is further alleged in said bill, that said Kalaimoku, deceased, about October, in the year 1827, leaving as his sole heir his son, Leleiohoku, who inherited the property described in the agreement, and was acknowledged to be the heir of Kalaimoku, by the King, and was treated and considered as the inheritor of the above described property by the said respondent; that the said Leleiohoku was lawfully married to said complainant, and deceased intestate in the year 1848, leaving his son, John Pitt Kinau, the son of complainant, his only heir, who thereupon became entitled to the property thereinbefore described; and there had been allotted to complainant, as her dower, or a portion thereof, the lot described in Part 2d, of said survey of T. Metcalf, and who held possession thereof from her said husband's decease, until the arrangement made, as set forth in 1851, by the record of the Land Commission; and that said John Pitt Kinau, deceased, in the year 1859, being still a minor, that complainant, his mother, was his only lawful heir, and became entitled to his entire property, and is the inheritor of the property described in the bill.

The complainant avers that there has been no settlement, as she verily believes, or account rendered, although she admits that small sums have, from time to time, been paid, and that a large sum is now due.

To this bill there is a general demurrer: 1st on the ground that there were not at the time of the death of Kalaimoku any inheritable estates in the Kingdom, and, therefore, his son, Leleiohoku, could not have inherited the estate in question.

2d. The title to land in this Kingdom is founded upon a Land Commission Award, a Royal Patent, or the Mahele (division) Book of 1848.

It appears by the bill that Leleiohoku was the son and only heir of Kalaimoku, and that he inherited the property, and was acknowledged to be the heir of Kalaimoku, by the King, and was treated and considered as the inheritor of the property in question, by the respondent himself. It appears, further, that Leleiohoku was lawfully married to the complainant, and that he died intestate in the year 1848, and leaving his son, John Pitt Kinau, the son of the complainant, his only heir, who, therefore, became entitled to the property in question.

And it is further averred by the bill, that John Pitt Kinau, deceased, in the year 1859, being still a minor, and that the complainant, his mother, was his own lawful heir, and became entitled to his entire property, and is the inheritor of the property referred to.

It appears, further, on the application of the respondent, that the rights of the parties under the contract were recognized and confirmed by the Land Commission in 1851, at which time a separate piece of land, called Lot No. 2, in the survey, was recognized as included in the contract, in lieu of a portion of the King's wharf, which had been taken possession of by the Government.

But it is said there was no law of inheritance at that time. I am of opinion that there was a common law of inheritance, liable to be modified or defeated, but perfectly good until such an event. Therefore, by the bill, the title in Leleiohoku was complete.

I suppose that an inheritance, recognized by the King, as alleged in the bill, would be valid at that time, even upon the theory of the counsel for the respondent.

As to a right of inheritance at that time, the agreement itself recognizes it. The respondent admits, by his agreement, that there was, at that time, a right of inheritance, and it is averred he held under Leleiohoku till his death, and he recognizes again the heirship of Kinau, the son of Leleiohoku, and his rightful heir.

The respondent admits, by the demurrer, the agreement and the occupancy; and that he made a claim before the Land Commission for an award based upon the agreement, and that the Land Commission did confirm the claimant-the present respondent-his heirs, executors, administrators and assigns in the same rights and privileges in the lot called the Point, with the additional piece substituted for a portion of the original lot, called " The King's Wharf, " as was granted in the original conveyance and given in full in the award, and subject at the same time to the same rules and conditions as are therein contained, the whole instrument being confirmed, in full, on application to the said Board. In a word, the respondent, in pursuance of...