
    A. J. LOPEZ vs. M. KAIAIKAWAHA and I. KAIAIKAWAHA, her husband, and AH SAM.
    Exceptions. •
    Hearing, March 20, 1893.
    Decision, April 17, 1893.
    Judd, C.J., Bickerton and Frear, JJ.
    A new trial will not be granted (1) on the ground that the verdict is against the weight of evidence, when it does not appear that there is a manifest preponderance of evidence against the verdict; or (2) on the ground of surprise as to the defence of title by adverse possession set up under an answer of general denial, when it does not apirear that the plaintiff had sufficient reason for believing that such defense would not be set up; or (3) on the ground of newly discovered evidence, when the evidence might have been discovered before the trial by the exercise of reasonable diligence, or when the evidence is merely cumulative, or when it is not of such a nature as to make it probable that a new trial would result in a different verdict.
    Surprise is not a favored ground for granting a new trial.
    In case of surprise the better practice is for the party alleging surprise to move for a continuance of the trial or for a non-suit.
    A sheriff’s deed of land sold in pursuance of an execution issued upon a judgment of a District Court, a transcript of which judgment has not been docketed in the Supreme Court, does not pass a legal title to the land.
    
      A sheriff’s deed of land upon an execution sale conveys only the interest which the judgment debtor has in the land at the time of the sale.
    A title afterwards acquired by the judgment debtor does not inure to the benefit of the purchaser at the execution sale.
   Opinión or the Court, by

Frear, J.

This is an action of ejectment to recover a piece of land situate at Waialua, Oahu, the same being a part of the land described in Boyal Patent 585 issued to Kawaihao. The case was tried at the January term, 1892, of the Supreme Court, before Judd, C. J., and a jury, and resulted in a verdict for the defendant. The case comes to this Court upon exceptions to the refusal of the presiding Justice to grant the plaintiff’s motion for a new trial, based on the following grounds:

1. That the verdict was contrary to the law and the evidence.

2. Surprise of plaintiff in the defense set up by defendants of title by adverse possession.

3. Newly discovered evidence consisting of the testimony of certain witnesses upon the issue of adverse possession.

4. Error in the charge of the presiding Justice to the jury that a certain sheriff’s deed on an execution sale did not pass a legal title because the District Court judgment, on which the execution appeared to have been issued, had not been docketed in the Supreme Court.

5. Newly discovered evidence that said judgment was rendered by a Circuit Judge.

As to the ground that the verdict was contrary to the law and the evidence, nothing more is claimed by counsel than that the evidence greatly preponderated in favor of the plaintiff on the issue of adverse possession. This of itself is not sufficient to justify a court in setting aside a verdict, where the evidence is conflicting as it is in this case. But upon a careful review of the evidence, we cannot say that it preponderated greatly if at all in favor of the plaintiff,

Tbe second ground for tbe motion, namely, surprise as to tbe defense of adverse possession, is supported by an affidavit, in wbicb the plaintiff deposes that he had made diligent inquiry as to the ground of defense relied upon by defendants, but could not ascertain that they relied upon adverse possession, and that he understood it was conceded by everyone that up to eight years ago the land was in the possession of plaintiff and his grantor. Surprise is not looked upon with favor by courts as a ground for granting a new trial. In the nature of the case, it is easy for a defeated party to allege surprise, and difficulty for his opponent to show that the surprise is not feigned. A plaintiff especially should be required to make out a very clear case of surprise, for he chooses his own time for bringing his action, and has ample opportunity to prepare for trial, and in ejectment must rely upon the strength of his own title rather than upon the weakness of his opponent’s title. Furthermore, he is able to protect himself by suffering a non-suit. To entitle a plaintiff to a new trial on the ground of surprise as to a defense set up by the defendant, it must appear clearly that the plaintiff not only did not know of the defense but that he could not by reasonable diligence have known it, and that he had sufficient reason to believe that the defense would not be set up. In the case at bar the defendants filed an answer of general denial. There was no law or rule of court requiring them to specially plead or give notice of the defense of adverse possession. It was competent for the defendants under the pleadings to make this defense, and this the plaintiff must be presumed to have known as matter of law. It does not appear that he had sufficient reason for supposing that this defense would not be made as a matter of fact. His affidavit does not show that the defendants misled him as to their claim or title, or even that they claimed title in any other way than adverse possession. He must have supposed that they would or might set up some title, and what more probably than title by adverse possession, especially considering the frequency of such defenses among the Hawaiians. The plaintiff says lie made diligent inquiry, but could not ascertain tbat this defense would be set up; but be does not set forth wbat be did, so as to enable tbe Court to say whether be made diligent inquiry or not. His mere say so is not sufficient. Tbat is a conclusion for tbe Court to make from tbe facts presented. If be had shown tbat be bad inquired of tbe defendants themselves, and tbat they bad misled him, there might have been good ground for a new trial. Further, in this particular case tbe plaintiff did not show even a good documentary title under which be claimed, and, so far as appears from tbe facts of tbe case, be must have recovered, if at all, upon a title in himself by adverse possession. He cannot now be permitted to say tbat be was ignorant of tbe insufficiency of bis title by purchase and of tbe necessity of bis relying on title by adverse possession; and, if so, was it reasonable in him to suppose tbat no counter title by adverse possession might be set up by tbe defendants? ¥e may add tbat tbe better practice in cases of surprise is for tbe party alleging surprise to move for continuance of tbe trial or for a non-suit, and not first take bis chances on tbe verdict and then move for a new trial.

Tbe third ground for tbe motion, obviously falls with tbe second ground. Tbe alleged newly-discovered evidence might easily have been discovered before tbe trial if it bad been sought for. It was not sought for because plaintiff took it for granted tbat it would not be needed. Indeed, tbe plaintiff shows by bis affidavit tbat be knew at least where to look for tbe evidence. Tbe evidence would, moreover, at best, have been merely cumulative.

Tbe fourth and fifth grounds for tbe motion may be considered together. At tbe trial tbe plaintiff offered in evidence a document which be claimed was a sheriff’s deed on an execution sale of tbe land in question to tbe plaintiff’s grantor. This document was very defective in several respects, and did not show, nor was it shown by other evidence, out of wbat court tbe execution issued. It seems to have been considered by plaintiff’s counsel as well as by tbe presiding Justice that the execution was issued upon a judgment of a District Court, and it did not appear tbat a transcript of tbe judgment had first been docketed in tbe Supreme Court. Tbe document was admitted as evidence on tbe question of adverse possession, but tbe jury was instructed tbat it did not pass tbe legal title to tbe plaintiff’s grantor, because a transcript of tbe judgment bad not first been docketed in tbe Supreme Court, tbis being required by statute as an essential pre-requisite to an issuance of execution upon a judgment of a District Court upon real property. Tbis instruction was undoubtedly correct. Lindsey vs. Kainana, 4th Haw., 165.

Tbe plaintiff’s counsel urges as a further ground for a new trial, tbat new evidence, set forth in an affidavit on file, has been discovered since tbe trial, showing tbat tbe judgment upon which tbe execution issued was a judgment of a Circuit Judge of Oahu and not of a District Court as appeared at tbe trial. Without considering whether due diligence was exercised in searching for tbe record of tbe Circuit Court before tbe trial, or whether tbe record shows all tbat is claimed, it is sufficient to say tbat for other reasons tbe execution deed would not be admissible as evidence of title in tbe plaintiff A new trial will not be granted on tbe ground of newly discovered evidence, unless tbe evidence is on a material point and of such a nature tbat a new trial would probably result in a different verdict. By tbe plaintiff’s own showing tbe land which it is claimed was sold on execution and con- ■ veyed to plaintiff’s grantor, did not belong to tbe judgment debtor, but to bis wife, tbe judgment debtor having only tbe marital right of use and possession and an initiate right by curtesy. “No sale by execution shall operate to convey a greater estate or interest in the property sold, than tbe defendant in execution bad at tbe time of such sale.” Civil Code, Section 1027. Such would also be tbe law in tbe absence of statute. Tbe judgment debtor having at tbe time of tbe sale only a contingent life interest at most and having deceased prior to tbe bringing of tbis action, whatever interest passed by the deed must have ceased prior to the bringing of the action. And although the judgment debtor afterwards acquired title to the land in fee by descent from his son to whom it descended from his wife, yet - it is well settled that an after acquired title in a judgment debtor will not pass to a grantee under a sheriff’s deed on execution sale, there being no warranty in the deed and no authority to bind the judgment debtor by warranty. Borer on Judicial Sales, Secs. 599, 602, 603; Devlin on Deeds, Sec. 1436.

J. A. Magoon and W. L. Hololcaliiki, for plaintiff.

The exceptions are overruled.  