
    TALULA L. HAYSELDEN vs. WAHINEAEA. (w.)
    Ejectment. Exceptions.
    Hearing, March 22, 1893.
    Decision, April 12, 1893.
    Judd, Bickerton and Erear, JJ.
    .A devise of land by will was uncertain as to which of two lots, Nos. 2 and 3, was devised to A. Defendant, the purchaser of lot No. 2 sold it nineteen years ago describing it in the deed as the lot purchased of A, and the adjoining lot No. 3 as the property of B. Defendant thereafter took possession of lot No. 3. In an action by the grantee of B to recover possession of lot No. 3 of defendant, there must be more evidence than defendant’s denial that she executed the deed of lot No. 2 to disprove the estoppel claimed as the effect of her deed, as showing her construction of the devise. The evidence showing that the jury must have acted in giving their verdict for defendant through bias or misunderstanding, the verdict is set aside and a new trial ordered.
   Opinion of the Court, by

Bickerton, J.

The case was first beard at tbe October Term, 1892, of tbe Supreme Court, and tbe jury disagreed and were discharged. Tbe case came on again for bearing at tbe February term, 1893, of tbe First Circuit Court under tbe Act to Reorganize tbe Judiciary Department, and tbe jury rendered a verdict for tbe defendant. On tbe 23d of February plaintiff, by ber attorney, filed a motion for a new trial on tbe ground tbat tbe verdict was contrary to tbe weight of evidence and to tbe law as laid down in tbe charge of tbe Court On tbe 28th of tbe same month tbe said motion was argued before Frear, J., the judge presiding at tbe trial, and tbe Court overruled tbe motion. Tbe matter now comes here on a bill of exceptions to tbe ruling of tbe Court in having denied said motion.

Tbe history of tbe case is briefly as follows; About tbe year 1867 one Makaioulu died leaving tbe property mauka of Queen street in Honolulu, marked as Lots 1, 2 and 3 on the map which was introduced in evidence. By his will he ' divided the property into three lots, hut without stating the metes and bounds of any of them, leaving lot 1 to his widow for life, remainder to Kalo, his daughter, Lot 2 to his brother Keana for life, remainder to Kekipi, wife of Keana, and Lot 3 to his daughter Kalo. There is practically no dispute as to the location of Lot 1, which is conceded to have been the makai portion, as marked on the map. But the mauka kuleana, apparently intended to constitute Lots 2 and 3, now furnishes the dispute as to which is Lot 2 and which is Lot 3.

• It was in evidence that the residence of Makaioulu was so situated as that the language of the will would, or at least might, indicate the Ewa side of the mauka kuleana as being that left to Keana, and to which both parties hereto now claim title. It ■ is conceded that defendant succeeded by regular conveyances to the title of Keana, and plaintiff’s claim is founded upon a division of the mauka kuleana in 1876, between defendant and Kalo, whereby defendant assumed ownership of the Waikiki part (marked 2 on the map), and Kalo assumed ownership of the Ewa portion (marked 3 on the map) and it is upon those deeds, then executed, that plaintiff chiefly relies.

Makaioulu died in 1867; his wife died soon after, and left Kalo, their daughter, a minor, who was placed under successive guardians, among whom was the defendant, her aunt. Defendant lived in the same house with the Makaioulu family, and after the deaths referred to, continued there with Kalo the minor until the house became unfit for occupation. That house was Lot 1 on the map, Kalo’s title to which is not questioned. When that house became uninhabitable (defendant having in the meantime bought the Keana interest from Keana’s widow) defendant took what material was useful in the old house, and with other and newer material built a house mauka of the old one on the lot marked 3 on the map. Defendant and Kalo (then still a minor) went to live in the newer house, and there continued till Kalo came of age, and still later got married and went to'live on Kauai.

In the meantime, in 1874, defendant and Kalo executed a mortgage as co-owners of the present Lots 2 and 3 (the entire mauka kuleana) to M. Mclnerny, wherein they assumed to be owners of the entire kuleana. There was some controversy as to the execution of this mortgage, but the facts were very fully proven by His Honor the Chief Justice, who drew the mortgage, and who identified defendant to J. 3EL Paty, who took her acknowledgment. The execution of this instrument was on the first trial flatly denied by defendant; but on the second trial she modified that denial into a failure of memory.

The Mclnerny mortgage was soon after transferred to Ke'kuanaole (apparently for Eanny Young Kekelaokalani); and when, it matured, Eanny Young’s agent, Kekuanaole, went to defendant and Kalo where they were living on the land in issue and demanded payment. Defendant, in her evidence, says: "He asked us to pay what we owed, and we replied that we had no money.” It was then arranged that they should make conveyance of their land in order to pay off the mortgage, and the deed from defendant to Eanny Young, covering the Waikiki portion (Lot 2 on map), and the mortgage from Kalo to Eanny Young of the Ewa portion (Lot 3 on map) of the mauka kuleana, were the results of that effort to pay off the Mclnerny mortgage.

At the first trial of the case the plaintiff offered in evidence and filed the original deed from defendant to Eanny Young. Between that trial and the last one held, that deed has been abstracted from the Court files by some person unknown, and has not been found ^since; a certified copy thereof is however on file and also of the mortgage from Kalo to Eanny Young, executed the same day, and which follows the deed upon the next page of the registry. Both documents were acknowledged before Thomas Brown, Begistrar of Deeds. The mortgage of Kalo to Eanny Young was afterwards released, and another mortgage was given by her to Mrs. Borres, and under the last one mentioned, the foreclosure proceedings were had through which the plaintiff claims title.

We may fairly start from 1874, the time when defendant and Kalo executed the mortgage to Mclnerny of Lots 2 and 3, being the mauka portion. The record of this mortgage was notice to the world that they claimed to be the owners of these two lots. When the payment of this mortgage was demanded defendant in her evidence says, “He asked us to pay what we owed, and we replied that we had no money;” it then became necessary to raise the money, and then they certainly divided the mauka portion, Kalo giving a mortgage to Fanny Young of her portion, Lot 3, and defendant giving a deed of her portion, Lot 2, to Fanny Young; in that deed defendant recognizes the other adjoining lot as belonging to Kalo, and describes the lot she was selling as the lot conveyed to her by Kekipi; this deed was put on record, and was notice to the world that she only claimed the lot she sold, and was a declaration that of the mauka portion Kalo took Lot 3, and she took Lot 2. The defendant in her evidence speaks of her visit to the Registry Office in company with Kalo to arrange some papers in connection with her land and talking with Mr. Brown the registrar; these papers must have been the mortgage from Kalo and the deed from herself; the. evidence points clearly to this fact. ■ This certainly was notice to any purchaser of lot 3, searching the records, that defendant had no claim to it, and that it was the property of Kalo. But defendant denies that she executed this deed; her evidence is not positive; but she tells many facts which of themselves might well be held to prove her execution without the aid of direet and positive evidence from any other source. But we have the positive evidence of Mr. Lazarus, a subscribing witness to the deed, who was at the date of the execution of the deed a clerk and interpreter in W. C. Jones’ office where the deed was drawn, and he (Mr. Lazarus) testifies with a minuteness of detail to the execution of the deed, and to the fact of his having got into a quarrel with Mr. Jones, his employer, because of having told her at the time of reading and interpreting the deed to her before signature, that she was being taken in and was selling too cheaply.

To have found the verdict that the jury did, they must have found that the defendant did not execute that deed. We are of opinion that such a finding cannot be sustained in the face of the evidence adduced in the case. There is not a • shadow of doubt that there was a joint mortgage from defendant and Kalo, and that it was lifted by another mortgage from Kalo of part of the land and a deed from defendant of the other part. This fact in itself under the circumstances, is in our opinion almost conclusive. Defendant says herself they had not the money to pay the mortgage; the first mortgage was released, it certainly was not released without a settlement being had of the amount due. The evidence points beyond a doubt to the fact that the settlement was made in the way above stated.

The Court charged the jury that the will of Makaioulu being uncertain as to the way the mauka portion was to be divided, then it is to be construed in the way in which the parties who are interested themselves and those under whom they claim construed it. The evidence is clear as to how defendant ancl Kalo construed it, defendant selling her share by metes and bounds and Kalo mortgaging hers.

The Court further charged, “I instruct you as a matter of law that after a lapse of time, after a long time, and if the parties have acted as if the deed were a deed executed by the defendant, then her mere testimony that she did not execute it is not sufficient. There should be something more. If you find that the deed was executed a long time ago, as you must, and if you further find that she assented to it and that possession has been in accordance with it, then her mere testimony as a matter of law is not sufficient to show that she did not execute it'; that has been decided by our Supreme Court.” Kamalu vs. Lovell, 5th Haw., p. 62. Further on the Court says, “ If you find that she did execute that deed she is presumed to know the contents of it; she cannot come in here' and say that there was a mistake or that there-was fraud.” Further, “ The acts of the defendant and those under whom she claims would estop her from saying anything contrary to what her acts have shown.”

G. W. Ashford, for plaintiff.

J No.wahi, for defendant.

No exception was taken to any part of the charge; it was the law of the ease as given by the Court. Defendant’s counsel contends, and it is his only contention, that the fact was left to the jury and they found for the defendant, and the Court cannot interfere with the verdict. But a verdict must be in conformity to the law and the evidence; there must be evidence to support it. The charge of the Court in this case was clear and positive that the mere denial of defendant that she executed the deed was not sufficient. But we have the positive evidence that she did execute it. In the face of the instructions given by the Court, and the evidence,, we fail to see how the jury could find for the defendant. In Bishop vs. Kala, 7th Haw. p. 591, the Court says: “If it appears clearly to the Court that the verdict is so manifestly against evidence as- to induce the conviction that a mistake-has been made or that injustice has been done, or when it appears that the verdict is clearly, palpably, decidedly and strongly against the evidence, or is manifestly the result of bias or of misunderstanding on the part of the jury, the verdict will be set aside.”

• In the case at bar we are of the opinion that the verdict is of this nature and ought to be set aside and a new trial ordered. And it is so done accordingly, and the exceptions are sustained.  