
    MRS. E. K. BOOTH v. KAPUAKELA (w).
    Appeal prom Circuit Judge, First Circuit.
    Submitted June 26, 1896.
    Decided September 14, 1896.
    Judd, C.J., Frear and Whiting, JJ.
    A’s grantors were sued in ejectment and claimed the entire land, and made no especial claim to a wooden house thereon. Judgment was obtained against A’s grantors for an undivided half of the land. The presumption is, in default of evidence, that the house was a part of the real estate, and A is estopped from showing in subsequent proceedings in partition, that the house was erected by her ancestor in title and is her exclusive property.
   OPINION OF THE COURT BY

JUDD, C. J.

The question in this case appears to be whether a party who was sued in ejectment and against whom a verdict was rendered for a moiety of tbe land is, on a bill for partition of tlie land, estopped to sbow that a certain wooden house on tbe common estate was exclusively tbe property of her ancestor in title.

Magoon & Hidings for plaintiff.

Kinney & Ballou for defendant.

Tbe Circuit Court affirmed tbe report of tbe Commissioner who made a division of tbe land, awarding one parcel to plaintiff and tbe other to defendant, tbe bouse in question being upon tbe portion set off to defendant, another house being on the portion set off to plaintiff. It appears that in tbe trial of tbe title tbe present plaintiff’s grantors did not make special claim of ownership in tbe bouse, but claimed in defense tbe entire land under a deed from one Pilipo, who tbe jury found to be entitled to but one-half of the same, and tbe present defendant tbe other half. Tbe question of title to tbe land as it stood, and necessarily of tbe improvements, hereditaments and appurtenances appertaining, was litigated between tbe parties, and tbe verdict of tbe jury is conclusive that each party was entitled to one-balf of tbe entire estate, including improvements. It was incumbent upon tbe Commissioner to view and divide tbe estate as be did. And no exception was made to bis report, which presumably took into consideration tbe value of tbe bouse in question as a part of tbe estate. There is no evidence before us to sbow whether tbe bouse is affixed to the soil so as to be a part of tbe realty, and in default of such evidence tbe presumption is that it is of that nature.

In resisting tbe suit of tbe present defendant (then plaintiff) at tbe trial of tbe ejectment case, it would bave been competent for tbe then defendants (grantors of present plaintiff) to bave in their answer claimed tbe bouse as exclusively their own, and we doubt not tbata verdictwould havebeen renderedin accordance with tbe proofs adduced. No such claim was made, and tbe plaintiff is now estopped from making it.

Decree affirmed.  