
    SUPREME COURT—IN BANCO.
    OCTOBER TERM—1880.
    
      Harris, G. A, Judd and Me, Gully, J. J,
    
    Kaia et al. vs. Kamaile and Kaleo.
    ON EXCEPTIONS PROM THE SECOND CIRCUIT.
    The evidence showed that the parties plaintiff and defendant were . co-heirs and tenants in common, and that the plaintiffs had never been ousted by the-defendants;' the Court charged the jury that if they so found,, tbe Statute of' Limitations would not run against the plaintiffs; the jury rendered a verdict for the defendants for the whole estate-; the trial Court set aside the verdict and ordered judgment for plaintiffs for one-half of the estate, non obstante veredicto> ;
    
    Held, no error, as the-evidence was conclusive that thei’e had been no ouster and that the plaintiffs- were co-heirs.
   Opinion of tbe Court by

Harris, C. J.

This was an act of ejectment tried at tbe June Term of tbe Second Judicial Circuit at Wailuku.

Tbe defendants claimed at tbe trial that they were heirs to tbe person last seized, and further, that they bad been in possession of tbe whole land for more than twenty years; tbe plaintiff having claimed an undivided half in tbe-land by right of inheritance. Tbe testimony on both sides was clear with regard to tbe right of inheritance of both parties, and although there was evidence that the- defendants had lived on the land a long time, there was a discrepancy regarding the time at which the widow of the patentee, who occupied the land after Ms death, deceased. Some testified that she died about 1855, and others about 18A5. But all the testimony was that the parties, plaintiff and defendants, were co-heirs; and there was no testimony whatsoever that the party plaintiff had ever been ousted by the party defendant, simply that the defendants had been allowed to- live on the land. Under these circumstances the Court instructed the jury that if the evidence showed that the plaintiffs had been tenants in common with the defendants and those- under whom they claimed, and there had been no ouster, the possession of the defendants would be the possession of the-plaintiffs, aud. prescription would not be applicable to the case-.

S. B. Dole for plaintiff's.

A. S. Hartwell for defendants.

Honolulu, October 14, 1880.

The jury, notwithstanding the instructions of the Court, returned a verdict for- the- defendants for the whole land.

And the Court on motion ordered a judgment to be entered for the plaintiff' for one-half of the land non obstante veredicto, because by the whole showing of the case it was evident that the defendants had not ousted the plaintiff's.

This is undoubtedly a proper judgment, for a judgment non obstante veredicto is a proper judgment whenever on a review of the whole case, in any view of it, the defendants’ claim has no- merits.

It is said at the hearing that no such result can. be made from the- records of this case.

The whole testimony is before us, and by it it appears that no attempt was made to show an ouster or to- show that the-plaintiffs were not co-heirs, and therefore tenants in common. This is equivalent to a confession that they could not show these two essential facts, and consequently is- equivalent to an admission that the defendants are in the wrong; and no- new trial could result to the advantage of the- defendants.

Therefore the judgment for the-plaintiffs-non obstante vere-dicto was correct.  