Lewers Cooke v. Mary Atcherly

• Citation: 222 U.S. 285,56 L.Ed. 202,32 S.Ct. 94
• Decision Date: 18 December 1911
• Docket Number: No. 69,69
• Parties: LEWERS & COOKE, Limited, Appt., v. MARY H. ATCHERLY
• Court: United States Supreme Court

222 U.S. 285

32 S.Ct. 94

56 L.Ed. 202

LEWERS & COOKE, Limited, Appt.,

v MARY H. ATCHERLY.

No. 69.

Argued December 4, 1911.

Decided December 18, 1911.

Messrs. David L. Withington, William R. Castle, W. A. Greenwell, and Alfred L. Castle for appellant.

[Argument of Counsel from pages 285-290 intentionally omitted] Messrs. Lyle A. Dickey and E. M. Watson for appellee.

[Argument of Counsel from pages 290-292 intentionally omitted] Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a decree refusing to the appellant the registration and confirmation of its title to a parcel of land, described as lot 1 of land commission award 129, royal patent 1602. 18 Haw. 625. 19 Haw. 47. The appellant claims through mesne conveyances from David Kalakaua. Kalakaua was adopted by one Kaniu as her child. She had certain rights, not fully defined, in the land, and left all her property to Kalakaua by an oral will in 1844. Her husband, Kinimaka, seems to have reported this to the King, as required in those days, and there is evidence that the King disapproved it on account of Kalakaua's youth. The fact is not found or admitted, however, and the judge who established the will denied the power of the King. Later the King gave the land to Kinimaka, and in 1849 the land commission adjudged it to him in fee simple. In 1856, on or shortly before his coming of age, Kalakaua filed a bill in equity in the court of land registration to establish a trust against Kinimaka, but this suit was not carried to final decree. In 1858 he proved the will of Kaniu, 2 Haw. 82, and thereafter in the same year brought another bill against the widow and guardian of the minor children of Kinimaka, who had died, which ended in a decree that the guardian convey the premises to Kalakaua. This was in 1858. There was no conveyance in accordance with the decree, but Kalakaua occupied the land before and after he became King, conveyed it to his wife, Kapiolani, in 1868, and after his death she occupied it until her death in 1898.

The respondent claims by virtue of a remainder limited in the will of Kinimaka. In 1901 she brought an action of ejectment, whereupon the Kapiolani Estate, Limited, brought a suit in equity to restrain her, on the ground of the foregoing facts. There was a demurrer, which was overruled (14 Haw. 651), and in that stage of the case the appellant bought from the Kapiolani Estate. The cause is still pending, the parties having agreed to try their rights in the present suit.

When the demurrer to the bill of the Kapiolani Estate was overruled the subject mainly discussed was whether the decree of 1858 against the guardian of Kinimaka's children bound the children, they not having been made parties to the bill, as it was admitted that they should have been. But the decision now appealed from, while hinting at a possible difference upon that point, in view of 'the many indications that the decree of 1858 was substantially a consent decree,' placed itself upon a different ground. It held that the appellant, 'in seeking to register a title depending upon the unexecuted decree in Kalakaua v. Pai and Armstrong, is, as against the holder of the outstanding legal title, in the same position as a party asking the aid of a court of chan- cery in executing a former decree, and it is well established that he must take the risk of opening up such decree for re-examination. Lawrence Mfg. Co. v. Janesville Cotton Mills, 138 U. S. 552, 34 L. ed. 1005, ...