Kane v. Perry

OPINION BY HARRIS, 3. The plaintiff sets forth that she is entitled to one undivided half of the real estate described in her complaint, for an estate of inheritance in fee simple, as the sister of Nam ah a. and Maraea, and one of the heirs at law of Palekaluhi and Maraea deceased; and a royal patent is filed consequent upon land commission award No. 6175, which award was made the 8th of January, 1855, and awards the property to Kamaha for Maraea.” The defendant files a plea in bar, and among other things sets forth that he holds under a deed from Palekaluhi, dated September 15th, 1871, and that Palekaluhi was the sole son and heir of Maraea mentioned in the award and royal patent. The plaintiff in his reply to the defendant’s plea, does not admit or deny that this Palekaluhi is the only son of Maraea, and this is a proper question for the jury; if she chooses to submit it to a jury, for it may well be that if the proof that Palekaluhi is, or was, the son of Maraea, should fail, the plaintiff might be shown to be her sister, and therefore heir. There are not therefore sufficient facts admitted by the pleadings to enable us to sustain the plea in bar; it is therefore overruled. The point made by defendant on the warranty of Palekaluhi, we do not regard as tenable; the jury will however be directed that if Palekaluhi was the only son [664] of Maraea, the plaintiff' cannot recover; for even admitting that Xamaha was trustee for Maraea, the trustee or his heirs could not eject Maraea or her heirs or assigns from the occupation of the land, since he held only for her and her heirs. J. P. Green for plaintiffs. A. S. Hartwell for defendant. Honolulu, January 18th, 1876. We distinguish this ease from that of Cluney eí al. vs. Namauu, (July term, A. D. 1875).