Oahu Railway & Land Co. v. Kaili
| Decision Date | 27 July 1915 |
| Citation | 22 Haw. 673 |
| Parties | OAHU RAILWAY & LAND COMPANY v. KOLOHANA KAILI. |
| Court | Hawaii Supreme Court |
Argued June 21, 1915.
EXCRETIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. T. B STUART, JUDGE.
(Quarles J., dissenting.)
Syllabus by the Court
In an action of ejectment, the defense being adverse possession the declarations of the party in possession of the land as to the nature of his claim are admissible as part of the res gestae and as tending to prove hostility of claim, but statements as to the source of claim or manner of acquiring the possession, being narrations of past transactions, are not so admissible.
It is no objection to evidence of declarations admissible as part of the res gestae that they were not shown to have been made before the expiration of the statutory period of limitation.
Where one is shown to have been for the statutory period in actual, open, notorious, continuous and exclusive possession of land, apparently as owner, and such possession is unexplained, the presumption is that such possession was hostile.
The rule is that while a recognition of title of the true owner by the one who has acquired title to land by adverse possession upon the completion of the statutory period will not alone defeat the title so acquired such recognition is evidence to be considered in determining whether the prior possession of the adverse claimant was in fact adverse.
Interruption of the continuity of possession occurs when the adverse claimant recognizes the title of the true owner.
The admission in evidence of an unstamped instrument required by law to be stamped, where it has been used by the trial court as the basis of a finding of fact or conclusion of law, is error.
Reversible error appears where it is shown that the decision of the circuit court in a jury waived case was based partly upon assumed facts of which there was no evidence or which were attempted to be shown only by evidence improperly admitted over objection, and the evidence on the main issue was conflicting.
Exceptions, in a jury waived case, to an oral decision of the court, and to the overruling of a motion for a new trial which was made before the written decision was filed, present nothing for the consideration of the appellate court.
A. M. Cristy (Frear, Prosser, Anderson & Marx on the brief) for plaintiff.
N. W. Aluli (E. K. Aiu with him on the brief) for defendant.
OPINION
This is an action of ejectment in which the plaintiff seeks to recover the possession of a parcel of land containing an area of 3.27 acres, situate at Honouliuli, city and county of Honolulu. The plaintiff proved the paper title to the land showing title in itself under a lease for a term of fifty years commencing January 1, 1890, made by James Campbell, as lessor, to B. F. Dillingham, as lessee, dated November 19, 1889, and assigned to it on December 12, 1889. The assignment reserved certain portions of the demised premises, including the land in dispute, the portions reserved having been released to the plaintiff by quitclaim deed dated March 23, 1892. The defense was adverse possession based on and following an alleged parol exchange of lands between Campbell and a woman named Kamai in 1878 or 1879. Kamai married the defendant in 1908, and died in 1912 leaving the defendant as her sole surviving heir. The case was tried jury waived and decided in favor of the defendant. The plaintiff brings exceptions.
Exception 2. The defendant was allowed to testify over the objection of the plaintiff that Kamai " told me that she made an exchange with Mr. James Campbell in which she got this land now in dispute." The testimony was admitted upon the theory that it was within the well established exception to the rule against hearsay in favor of res gestae declarations. It is settled in this Territory, in accordance with the rule in most of the States, that the declarations of a person in possession of land as to the nature of his claim go to characterize his possession, are part of the res gestae, and tend to prove the hostility of claim necessary to an adverse holding. Carter v. Lulia, 16 Haw. 630; Makekau v. Kane, 20 Haw. 203. But it is also well settled that declarations which are but narratives of past occurrences are not admissible as part of the res gestae . 16 Cyc. 1258; 1 Green-leaf on Evidence, Sec. 110. Declarations which are but statements as to the source of claim or manner of acquiring possession of land are narrations of past transactions and are not to be considered as merely characterizing the possession and, therefore, not of the res gestae . 24 A. & E. Enc. Law (2nd ed.) 691; Daffron v. Crump, 69 Ala. 77, 80; Ray v. Jackson, 7 So. (Ala.) 747; Whitaker v. Whitaker, 157 Mo. 342, 354; Swope v. Ward, 185 Mo. 316, 329; Samaha v. Mason, 27 App. Cas. (D. C.) 470, 477; Murray v. Cone, 26 Ia. 276; Crawford v. Crawford, 60 Kan. 126; Feig v. Meyers, 102 Pa. St. 10, 16. And see Makekau v. Kane, supra. Accordingly it was held in Wilkinson v. Bottoms, 56 So. (Ala.) 948, that evidence of a declaration that there had been a parol exchange of lands was inadmissible. Though there are cases in which a contrary view has been taken, the application of the rule in accordance with the cases cited would seem to be the logical and consistent one. It is not at all necessary, in establishing a title by adverse possession, to prove that declarations were made by the person or persons in possession of the land, and no good reason is perceived why the rule as to res gestae should be relaxed or extended in cases of this kind. This exception is sustained.
Exceptions 3, 4 and 5. These relate to the admission in evidence of certain leases of portions of the land in dispute claimed to have been made by Kamai, as lessor, and offered evidently for the purpose of showing acts of ownership and claim of title by Kamai. The plaintiff objected to the admission of the documents because they were not stamped. The statute (R. L. 1915, Sec. 1352) provides that " No instrument requiring to be stamped shall be * * * of any validity in any court of this Territory unless the same shall be properly stamped." Leases are required to be stamped. It is the duty of the trial judges to heed and give effect to this mandate of the legislature. This court probably would not reverse a judgment of the circuit court because of the admission in evidence of an unstamped instrument, which the law requires to be stamped, where it had not been used as a basis for any finding of fact or conclusion of law; but here, the record shows, the leases in question were considered by the court and entered into its conclusion that the defense of adverse possession had been made out. Thus they were given validity in violation of the statute. Under the statute the leases were not evidence, and the court's considering them as such was error. This court has not heretofore been called upon to construe or apply the statute, though in the case of Makainai v. Goo Wan Hoy, 14 Haw. 607, which involved the federal war revenue tax of 1898, the refusal of the trial court to admit in evidence certain promissory notes which were not properly stamped was sustained. These exceptions are sustained.
Exceptions 7 and 10 relate to the admission of the testimony of the defendant and another witness to the effect that Kamai, while in possession of the land in dispute, stated to them that the land was hers. The testimony was properly admitted as declarations characterizing the possession, and of the res gestae. Carter v. Lulia, supra. It is no objection to the admissibility of such declarations that they were not shown to have been made before the expiration of the statutory period of limitation. Cannon v. Stockmon, 36 Cal. 535, 541. These exceptions are overruled.
Exceptions 20 and 21, which were to the decision and judgment on the grounds that they were contrary to the law and the evidence, and which involve also exceptions 6, 8, 9, 11, 12, 13, 14 and 15, relating to the admission of testimony as to the leasing of the land and the payment of taxes by Kamai, may be considered together. On the question of the defendant's claim of title by adverse possession the court, in sustaining it, took into consideration, besides the facts of open and notorious possession of the land by Kamai for more than twenty years, which was the period of limitation at the time referred to, and the making of improvements by her, the facts that she " claimed she got it by an exchange with Campbell, " that " she paid the taxes-her husband says that she paid the taxes all the time, " that " she did bring in a few (tax) receipts, " and that " she leased the land frequently."
The contention of counsel for the plaintiff that where there is no direct evidence that the possession of one of the land of another was hostile in its inception it must be presumed to have been in subordination to the title of the true owner is not sustained. Actual, open, exclusive and continuous possession of land by the claimant, apparently as owner, is evidence of a hostile entry and claim. Kapiolani Estate v. Cleghorn, 14 Haw. 330, 337. The rule was thus stated in the case of Albertina v Kapiolani Estate, 14 Haw. 321, 325, " While it is true that the burden is on the party affirming the existence of adverse possession to show that his possession is in fact adverse, it is also true that where one is shown to have been for the statutory period in actual, open, notorious, continuous and exclusive possession, apparently as owner, and such possession is unexplained, either by showing it was under a lease from, or other contract with or otherwise by permission of the true owner, the presumption is that such possession...
To continue reading
Request your trial