
    KANEOHE RICE MILL CO., LTD., v. EDWARD MALAIHI HOLI (k), KAPAUHELANI (w), JOHN B. KUPAU HOLI (k), HARVEY HOLI (k), KAWAHINEAUKAI, HENRY HEAHI HOLI (k), MRS. ALE HOLI PRITCHARD, FRANK KAHALAU HOLI (k), AND D. NAOIWI (k).
    Reserved Question from Circuit Judge, Eirst Circuit.
    Argued September 18, 1911.
    Decided September 27, 1911.
    Robertson, C.J., Perry and De Bolt, JJ.
    
      Partition — trial of title.
    
    A hill for partition cannot be made the means of trying a disputed legal title.
    If, in a suit for partition, an issue is in good faith raised concerning the extent of the petitioner’s interest in the land, the proper course is to suspend the bill and give the petitioner an opportunity to sue at law.
   OPINION OF THE COURT BY

PERRY, J.

In a bill in equity for partition the petitioner claims that F. W. Malaihi and Holi -were the sons of Kahalua, the original patentee of the land sought to be partitioned, and that by mesne conveyances the interests of Malaihi and two of the eight children of Holi, an undivided five-eighths in all, passed to and are now in the .petitioner, and also alleges that the respondent Naoiwi is the owner of an undivided three-eighths interest. Respondent Naoiwi answers denying that Malaihi was the son of Kahalua and claiming that Holi was the latter’s only son and that from Iioli’s children an undivided one-fourth interest passed to the complainant and an undivided three-fourths interest to the respondent and that the ownership of the land is in the shares just stated and not otherwise. The circuit judge reserves for the consideration of this court the question whether the court of equity has “jurisdiction to determine in said suit for partition of said premises the extent or quantum of the in•terest- respectively owned, by said petitioner and by said respondent D. Naoiwi.”

The general rule is well settled that “a court of equity does not interfere unless the title be clear and never where the title is” doubtful “until the party seeking a partition has had an opportunity to try his title at law.” 4 Kent. Com., 365. If the contest concerning the title is not in good faith or presents equitable questions only equity, it seems, will decide all the issues. The general rule has been variously stated. “It is certain that courts of equity in assuming jurisdiction of the subject of partition always disclaimed the authority to determine doubtful questions in regard to the legal title.” Freeman, Cotenancy and Partition, §502. “A bill for a partition cannot be made the means for trying a disputed title.” . Bispham’s Equity, 535. “To entitle a plaintiff to a decree for.partition he must show that his legal title is clear. * * * The doctrine almost universally held is that if the plaintiff’s legal title is involved in doubt and is disputed and not established * * * the court will retain the bill to give the plaintiff a reasonable opportunity to establish his title at law, and when he has done that decree the partition according to his established right.” Nash v. Simpson, 78 Me. 142, 150. “Courts of equity do not generally settle the conflicting titles of parties in their suits for partition. lienee, to entitle the plaintiffs to a decree for partition they must show a clear legal title.” Pierce v. Rollins, 83 Me. 172, 177. “Such a proceeding” (to settle' the title in a partition suit) “violates well settled principles and is against the practice of a court of chancery unless the dispute is in regard to an equitable title.” Chapin v. Sears, 18 Fed. 814. “So far as general principles go we certainly could not reverse the decision of the court of appeals that the petitioners ought to establish their title at law before partition should be decreed. * * * ‘A bill for partition cannot be made the means of trying a disputed title.’” Clark v. Roller, 199 U. S. 541, 545. See also Wilkin v. Wilkin, 1 Johns. Ch. 111, 117; Gif fard v. Williams, L. R. 5 Ch. Ap. Cas. 546, 547; Burt. v. Hellyar, L. R. 14 Eq. Cas. 160, 166; Dewitt v. Ackerman, 17 N. J. Eq. 215; Hay v. Estell, 18 N. J. Eq. 251, 252; Hardy v. Mills, 35 Wis. 141, 146; Deery v. McClintock, 31 Wis. 195, 202, 203, and Manners v. Manners, 1 Green’s Ch. (N. J.) 384, 385.

The plaintiff contends, however, that the rule does not apply to a case such as the one at bar where the respondent in his answer admits that plaintiff has some interest, raises an issue as to the quantum of that interest and claims for himself a larger interest than the plaintiff concedes to' be his. Confining ourselves to the facts of the case, — a dispute concerning the relationship to the patentee of the persons under whom the parties claim, and recognizing that there are, perhaps, authorities to the contrary (Agar v. Fairfax, 17 Vesey, Jr. 533 and West v. East Coast Cedar Co. 101 Fed. 615, and 110 Fed. 725), we are unable to see any distinction in principle between this case and that of a denial of all of the plaintiff’s title. The reasons which lead courts of equity to decline to exercise jurisdiction in the latter class of cases are of equal force in the former class. Those reasons are that, questions, of fact at least, concerning the title to real estate are purely legal, appropriate to be determined by a court of law and that in their determination the parties are entitled to a trial by jury. Discussing the applicability of the Seventh Amendment to the Constitution of the United States that “in suits at common law where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved,” the supreme court, of the United States has said that “where an action is merely for the recovery and possession of specific, real or personal property * * * the action is one at law,” and that “in a contest over the title” to certain real property “both parties have a constitutional right to call for a jury.” Whitehead v. Shattuck, 138 U. S. 146, 151. “It has been repeatedly held that when one institutes partition proceedings and the defendant raises the issue as to whether the plaintiff is the owner of the premises in question, the issue thus raised is cognizable iu a court of law and the parties are entitled to a trial by jury.” Gilbert v. Hopkins, 171 Fed. 704, 707. “The proceedings in partition are not appropriate for a litigation between parties in respect to the title.” McCall v. Carpenter, 18 How. (U. S.) 297, 302. “The jurisdiction in respect to titles of real estate is in courts of common law which courts of equity should hesitate to invade.” Kaaimanu v. Kauwa, 3 Haw. 610, 612. “The claim of the plaintiff that she was entitled to an undivided half of this land was a claim of a legal nature and equity has no jurisdiction to determine it.” Kapuakela v. Iaea, 9 Haw. 555, 556, 557. See also Ency. Law 1147; Giffard v. Williams, supra; Morgan v. Mueller, 107 Wis. 241, 244; Kuala v. Kuapahi, 15 Haw. 300, and Ahin v. Opele, 17 Haw. 525, 527. Even if, as is sometimes stated, there is not an inherent want of power in a court of equity to determine the issue of title provided the parties consent (Bispham’s Eq. 535), that does not militate against this view. The exercise of jurisdiction in such cases is based upon a waiver by the parties of their right to a trial by jury. Kuala v. Kuapahi, supra.

In Phelps v. Green, 3 Johns. Ch. 302, cited by the plaintiff, tbe plaintiff’s right to an undivided moiety was admitted by all concerned and the dispute was solely between the defendants as to the extent of their interests in the other moiety. It was ordered that the partition “be confined to the right of the plaintiff and to that of the defendants, considered aggregately; and that as to the conflicting claims between the defendants they ought to be settled at law before any further partition be made.” Under similar circumstances practically the same course was followed in Egner v. Meis, 36 Atl. (N. J.) 943. These cases support our view of the law.

In O’Hearn v. O’Hearn, 58 L. R. A. 105, also cited by the plaintiff, the answer admitted “an absolute interest in the plaintiffs in the property, the amount or size of which depends upon the true construction of the will,” and it was held that the court of equity had power to settle the controversy. That precise question is not before us.

A. A. Wilder (Thompson, Wilder, Waison & Lymer on the brief) for plaintiff.

N. W. Aluli (Magoon & Weaver with, him on the brief) for 11. Naoiwi.

The circuit judge is advised that the court of equity should not determine the issue of title involved and that if the parties so desire the bill should be retained for a reasonable time to allow the plaintiff an opportunity to establish its title at law.  