Mossman v. Dole
| Decision Date | 28 July 1902 |
| Citation | 14 Haw. 365 |
| Parties | T. R. MOSSMAN v. S. B. DOLE, C. M. COOKE, HENRY HOLMES, C. M. HYDE, J. O. CARTER, S. M. DAMON, W. F. ALLEN AND W. O. SMITH, TRUSTEES OF THE BERNICE PAUAHI BISHOP MUSEUM, DAVID KAWANANAKOA AND JONAH KALANIANAOLE. |
| Court | Hawaii Supreme Court |
(Galbraith, J., dissenting.)
Syllabus by the Court
In a statutory action to quiet title, the judgment may, in a proper case, include an award of possession and be enforced by a writ of possession.
Quere, whether an unexecuted judgment for possession stays the running of the statute of limitations.
W. R. Castle, P. I. Weaver, Jr., and Andrews, Peters & Andrade for plaintiff.
Kinney, Ballou & McClanahan and Holmes & Stanley for defendants.
This is a submission without action, under the statute on agreed facts.
The plaintiff brought a statutory action to quiet title October 11, 1899, in the Circuit Court of the Fourth Circuit, against the defendants, the subject of the action being the title to the Ahupuaa of Waipio, covered by Royal Patent 7529 and situated on the island of Hawaii. The plaintiff proposes to show in that action that he is entitled to the title and possession of that land-or at least an undivided part thereof. The defendants are now and were continuously for more than ten years prior to January 1, 1899, in possession of the land holding adversely to. the plaintiff. That case is now at issue, as are also many other similar cases, the result of which may depend largely on the questions of law now raised. (These cases, as we understand, have arisen under the same circumstances as that of Mossman v. Government, 10 Haw. 421).
The period of limitations for real actions was reduced from twenty to ten years by Act 19, Laws of 1898, which took effect January 1, 1899, with a provison that the twenty year period should apply as to rights then existing, in actions brought thereon within one year thereafter.
The questions submitted are:
1. May a judgment in an action to quiet title in favor of a plaintiff who is out of possession include an award of possession, and, if so, may process in the nature of a writ of assistance or of possession issue to put him in possession? Or
2. May possession be obtained, if at all, only by means of an action of ejectment?.
3. Would a judgment for the plaintiff in the action to quiet title stay the running of the statute of limitations, so as to prevent the defendants in a subsequent action of ejectment from setting up the defense of the statute, which they could otherwise set up?
The defendants contend that the statute relating to actions to quiet title permits an adjudication of the title only and not of the possession and does not permit the issuance and execution of a writ of possession, but that the plaintiff's only means of obtaining possession, in case he should obtain judgment in the action to quiet title, would be to bring an action of ejectment subsequently, but that it is now too late to do that for the reason that the period of limitations has already run, though it had not when the action to quiet title was commenced and that the judgment alone in that action, not followed by a change of possession, would not interrupt the running of the statute. If that is so, it would of course be a waste of time and money to proceed with the numerous pending actions to quiet title.
The first question is answered in the affirmative. This requires the second to be answered in the negative and renders an answer to the third unnecessary. An answer to the third in the affirmative would make it unnecessary to answer either of the other two.
Without deciding the third question, it may not be out of place to remark that, although the law seems to be settled that the bringing of an unsuccessful action would not stay the running of the statute (Willard v. Wood, 164 U. S. 502, 523), and that the bringing of a successful action would stay it for that particular action so that the judgment though rendered and the execution though issued after the expiration of the period of limitation would be effective if the action were begun before that period had expired (Breon v. Robrecht, 118 Cal. 469), and although most of the text books and the earlier cases seem to support the view that judgment alone in one action, not followed by a change of possession, would not stay the running of the statute as to another action, yet the cases as a whole as well as the reasoning on the subject seem to leave this last question in great doubt to say the least. The textwriters do not discuss the proposition but as a rule merely cite a few of the earlier cases. Many of the cases contain dicta only or else mere rulings without either setting forth the reasoning or citing authorities. In a number of recent cases the courts decline to follow the earlier cases and in some they attempt to show that most of the earlier cases are really not in point. Among the cases pro and con see Carpenter v. Natoma W. & M. Co., 63 Cal. 616; Hopkins v. Calloway, 47 (7 Cold.) Tenn. 37; Forbes v. Caldwell, 39 Kan. 14 (17 Pac. 478);Kennedy's Heirs v. Reynolds, 27 Ala. 364;Smith v. Hornback, 14 Ky. (4 Litt. 232 (14 Am. Dec. 122); Bright v. Stevens, 1 Houst. (Del.) 240;Jackson v. Haviland, 13 Johns. 228;Smith v. Trabue, 1 McLean 87;Gover v. Quinlan, 40 Mich. 572;Barrell v. Title Guar. Co., 27 Or. 77;Snell v. Harrison, 131 Mo. 495, and Estes v. Nell, 140 Mo. 639, overruling Mabary v. Dollarhide, 98 Mo. 198;Oberein v. Wells, 163 Ill. 101;Bradish v. Grant, 119 Ill. 606;Bailey v. Laws, 3 Tex. Civ. App. 529 (23 S. W. 20)); Brolaskey v. McClain, 61 Pa. St. 146. We need not set forth the line of reasoning that commends itself most to us.
As to the first question, it is clear that if the judgment in an action to quiet title may include an award of possession it may be enforced by a writ of possession. Whether the judgment may include such an award or whether, if it does not, a writ of possession may issue, is not so clear. In the nature of the case there are probably no authorities directly in point, for as a rule under statutes relating to actions to quiet title elsewhere, either the statute expressly provides for an award or a writ of possession or else the statutory proceeding is regarded as equitable under the code procedure and consequently as carrying by implication the power which courts of equity undoubtedly have of issuing writs of assistance or possession. Here law and equity forms are kept distinct and the statute in question provides for an action at law only (Hakalau Pl. Co. v. Kahuena, 14 Haw. 189, 196), and contains no express provision as to whether possession may be awarded or enforced in favor of one out of possession. The statute must be construed in large measure by itself. Its provisions are set forth in Civ. L., §§1773-6. It is Act 18 of the Laws of 1890, entitled “An Act to provide for the quieting of titles, estates and interests in real property,” and reads as follows:
Under this statute an action may be brought by one out of possession as well as by one in possession. Kahoiwai v. Limaeu, 10 Haw. 507;Ahmi v. Ashford, 12 Id. 12. The title of the statute is broad showing an intention to provide a convenient method “for the quieting of titles, estates and interests” in real property. The first section provides that the action may be brought against any one who claims adversely an “estate or interest: ***, for the purpose of determining such adverse claim.” The Supreme Court of California, in construing a similar section said: “It will be noticed that” the section, “which provides for the determination of adverse claims to realty, is very broad in its terms, and includes all adverse interests, from a claim of title in fee to the smallest leasehold.” Landregan v. Peppin, 94 Cal. 465, 467. The second and fourth sections also refer to “an interest” and “any interest. or estate.” The statute would seem to be broad enough to permit of a determination of mere possessory interests or rights of possession as well as of titles of the highest order. Section 3 bears out this idea by providing that if a tenant defendant is in possession, the landlord also may be joined as a party defendant. That would no doubt be the case without express provision, but it emphasizes the intention or thought of the legislature that the statute should be convenient and broad, and tends further to show that the recovery of possession was in contemplation in cases in which that remedy was appropriate. If a change of possession could not be awarded or enforced a very narrow construction would have to be put on the words “quieting,” “estate,” “interest,” “determine,” &c. There is nothirg in the nature of an action or suit to quiet title that makes such a remedy inappropriate. In statutory actions or suits to quiet title elsewhere, whether regarded as calling for legal or equitable relief, possession is awarded and enforced and the same is true in ordinary suits in equity to quiet title. The action or suit is not in...
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Paiko v. Boeynaems
...have heretofore been given a construction and effect consonant with their broad terms. See Kahoiwai v. Limaeu, 10 Haw. 507; Mossman v. Dole, 14 Haw. 365, 369; Allen v. Lucas, 15 Haw. 52. Referring to a similar statute, the supreme court of California, in Head v. Fordyce, 17 Cal. 149, 151, s......