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title: 'The Hawaiian gazette. (Honolulu [Oahu, Hawaii]) 1865-1918, March 07, 1883, Image 6',
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Image provided by: University of Hawaii at Manoa; Honolulu, HI
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TtTelicUt'ot McreJaaaJw :
D II V .r.1 ..-k ai
. i w 1 1 . .
And proedlv jy old ssUuid boast, 1
1I kAlk lKllk ... I..... . C' ; ii
And Ireland's pride tie brsTC Elskteentb
Who EtTtrrtt knew fear .
seventy dajs. We started oa tbo 7th day or
J air, sb1 reacted Baltimore cm our return on
the 15thv day of September, .Wing been pre
cisely seventy days absent. Of this period we
m AMia, Hill IfMHI,
Conristlaj? l Wtt of as follows t j!
Ssvem Court, January Term. 1SS3.
Her ilajesty Esau Khjelsosaiaxi. Queen Dow
ager, ry. Cms. H. Jctp, et. als., the Commission
ers of CroTn Lands.
Sferr JmiJ C. J-. JfcCnUf ami Afti J. J., Opin
Aw of the Cort y HcCully J.
iXetioB of ejectment tried before llcdily, 3.
tfee jarv being vraired.
The Itoyal plaintiff, the relict of his late Majesty
Kaiaehameha IY brings this action for the rccov
err of one undivided moiety of ten certain pieces
of'land in her complaint described.
I X!h!ic the complainant discontinues 33 to the
fourth, se Tenth and ninth pieces. The several
pieces, except the tenth, are parts of Land Com
mission Award Jfo. 10,803 to His Majesty Kameha
meha HI. The origin of the title of these lots
differs from that of the body of lands now known
as the CroTO lands in several particulars. The
Crown lands, as appears by the Act to relieve the
Royal Domain from incumbrances and to render
the same inalienable, January S, 1S03, are consti
tuted of a schedule of lands set forth in the Act of
June 7, ISIS, relating to the lands of His Majesty
the King and of the Government. By this last
named Act this enlightened and magnanimous Sov
ereign laid the foundation for the tenure of real
estate now subsisting, by separating his ownership
in all the lands of the Kingdom conjointly-with
sosse recognized but not well defined rights of .his
chiefs, relinquishing tothe general government for
jcat distribution to claimants and for public owner
ship the greater part of tho territory, and reserving
lor his individual ownership a royal estate which
was catalogued in the Act. The pieces of land here
in question were awarded to Kamehameha III, six
or seven years subsequently, July Gth, 1S34, Janu
ary 11, 1853, and March 26,1533. They are not Bis
the condudiag order was "that tho Administrator
be discharged from further responsibilitr, the resi
due in his haads amounting to being or
dered to bo paid to tho Commissioners of Crown
Lands of whom tho court is apprised tho Adminis
trator is himself one, and is their business agent."
The learned Cdunsei for tho defendants submits
in argument that the heirs of Kamehameha IV,
having had the advantage of tho statute of 1SC3
and no claim having been made against tho pos
session of these pieces by the Crown, are now es
topped. That tho $27,000 was a gift to tho Crown
lands by the nation and it makes no difference to
them that it was not a payment from Crown Lauds
for the releasQ of incumbrances, whereby the re
mainder of tho estate was saved. That on tho gift
by the Government of this sum for the payment
of the debts of decedent any private lands not sold
remain charged with payment of that sum and
with all sums advanced by the administrator.
That if this is so the defendants are in the posi
tion of a mortgagee in possession till the amount
advanced shall bo.fully paid.
For the plaintiff it is contended that title as to
the moiety vested in her on the death of her Itoyal
Consort, that no act of the Legislature can divest" I
her of her private propertv and no voluntary as- j
sumption of the debts of "her husband can impose j
a lien on her estate. That these scveralpieces not J
being enumerated and made Crown Lands, and ,
having been vested in Kamehameha IV by a dif
ferent form of title were not affected by statutes
relating to Crown Lands. And, finallvy'that the J
plea of estoppel and of equitable lien could not
be entertained in a court of law.
Tho court has abovo expressed its finding that j
the legal estate of these premises vested in the .
heirs. It remains only to consider tho validity of
tho estoppel or lien. "If the learned counsel for
the plaintiff intended to maintain the last propo- I
E. O. Hall fc Son
Ciitthig from 5 to 16 luetic; made for them by
thoMolIno Plow Co.
ot err ry description r.ceilett on these HlamU.
or Ahupuaas described merelv by name, but sur i sition expressed, they are met by tho authority of t
ii- i nomouu vs. naneie, a navr. it. ow, wuero iuu i
Teved lots of moderate size, one being but six-
tenuis or an acre, one is 1 1 acres, ivamenamena iu,
dkd oa the 13th of December, 1S34, subsequent to
the award of all the pieces but the first. The claims
on behalf of his estate are in the ordinary pro
cedure of Land Commission business, as when ap
plication was made by private persons for kuleana
awards. Some of these were disputed, and testi
Essaywastakentodetermine the rightful claimant.
The tenth piece in the complaint was awarded, by
Award G,72?, to Nunanu and Kamehameha HI, and.
a deed of partition was made August 20. 1So5j be
tween Nuuanu and Kamehameha IV. The pieces
thus awarded passed into the estate of Kameha
iseha HI, together with the before-mentioned lands
The estate of Kamehameha III as well as the
throne passed to Kamehameha I who continued
to treat the Itoval Domain, as his predecessor had
done, as his private estate, selling and mortgaging
pieces thereof as occasion suited, his consort jom-
mg m me ueeus 10 release uer uotr. uiuuuu
decease intestate, November SO, 1SC3, the throne
paonnr- to His Diotner oy me provision oi wo m
oLKamehameha the nuestion of '"the descent
of the property held and possessed by his late
Majesty Kamehameha IV. came before the Su
preme Court upon an agreed statement of
facts. The opinion of the Court was written by
Mr. lnstie Robertson, whose ihoroach and judicial
cast of mind was aided by the intimato acquaint
ance with the origin of land tenures in this King
dom, derived from his labors as one of the JSoaru
of Commissioners to quiet Land Titles. The Court
had access to the journals of ?he Privy Council,
and to the records of all the transactions leading
to the present system of land titles, and the pro
gress of ideas and events is luminously set forth, in
the decision, which must always remain among the
most important conmounons to nawanan msiury.
2nd Haw. Ken., n. 72C.
As having a controlling influence on the findings
in case, and having been the basis of subse
quent legislation, it is well to quote at large here
tne conciuamgparagrapns or mai opinion.
"In cur opinion, while it was clearly the intention
ot Aamenamena in to protect me lanus wmcu
reserved to himself out of the domain which had
beenacanired bv his family throush the prowess
and sfci" of his father, the conqueror, from the
dancer of beins treated as public domain or Gov
ernment property? it was also his intention to pro-
Tide that tnose lanos snoum uescenu to uis ueirs
ami successors, the future wearers of the crown
which the canoueror had wen: we understand the
act of 7th June, ISIS, as having secured both these
objects, under tnat act trie lanos aescenu m iee,
the inheritance beinir limited however to the suc
cessors to the throne, and each successive posses
sor may regulate and dispose of the same according
to uis win ana pleasure, as private piupexijj m
litn manner as was done bv Kamehameha HI.
tin our opinion the fifth clause of the will of Ka
mehameha HI was not necessary to pass the re-
. i . . . t t rl ikAH
served f-nrw o juunenamcua i , any uiu.c
the first clause was necessary to pass him the
crown. He was entitled to inherit those lands by
force of the act of 7th June, ISfc?, when he succsed-
ed to the crown, in virtue of the proclamation
made by his predesessor with the consent of the
Honae of Jfobles. and he was entitled as the adopt
ed son of Kamehameha HI to inherit the remain
der of his estate not devised to any one else, sub
ject to dower.
We are clearly of opinion also that Her ITa-
- . - - a r 1 1 7 . .1
jeaij tuen r.mm is lawioiij ciiulicu tu uuna ui
the reserved lands, except so far as she may have
. . . i - i , . .i .1 . ,i
Darren nex ngnc merem uy uvr u v. n act uuu umi.
There is nothing in the act of 7th June, ISIS, which
fan be understood as taking away the Queen's
right of dower in the lands therein named; nor is
there any law of this Kingdom which renders the
matrimonial rights of the wife of the King any
leas than or any different from those of the wife
of any private gentleman. Such was unquestion
ably tne understanding of both Kamehameha HI
aprf his successor as to dower in those lands, which
are to be dealt with in all respects as private in
heritable propertv, subject only to the special Leg
islative restriction on the manner of their descent.
"But His Majesty Kamehameha IV was possesse d
of other propertv, both real and personal, at the
time of his death, not affected with the special
character attached to the reserved lands. The
descent of that part of his estate must be governed
by the general law of inheritance and distribution,
arjfl Her Majesty Queen Emma is therefore enti
tled as statutory heir to one half of that property,
after the payment thereout pf such portion of
the late King s debts as are not specifically charged
by mortgage or otherwise upon the reserved lands.
Debts of the latter class ought clearly to be paid
out of the estate encumbered therewith."
In consonance with the findings of the Court the
Legislature passed tho Acts of Dec 31, 1SG1, -To
make a permanent settlement on Her Majesty
Qneen Emma," and of Jan. 3, 1563, "To relieve
the Itoyal Domain from Incumbrances, and to
render the same inalienable." The former pro
vides an annuity to Queen Emma on condition
of her release of dower in the Itoyal Domain. By
the second Act the Government is authorized to is
sue exehecquar bonds for the payment of mort
gages on the Crown Lands, to be repaid with in
terest from the income thereof. In 1ECG the Legis
latere assumed the payment of these bonds and
released the estate clear to tne tJommissioners.
It is plain from the foregoing citations and
3tatemeni3 tnat tne premises nere in question are
not a portion of the Crown hinds of which the con
trol is vested in the Crown Land Commissioners
who are here Defendants, and that they descended
to the personal heirs of Alexander Liholiho, who
was hamenamena is .
The learned Attorney-General, on the part of the
defendants, submits that the plaintiff is estopped
from asserting her legal title on two grounds:
1. That if it had been the property of Kameha
meha IV it must have been sold to pay his debts.
2. That he having accepted the relief from the
Government, the Crown has now acquired this
He introduces the testimony of Got J. O.Dominis
to ibis effect, that he was the Administrator of his
Majesty Kamehameha IV, succeeding Sir. Wm. late
Webster, on the decease of that gentleman, and
cootrased Administrator till the estate was settled.
Purssant to orders from the Probate Court, he
sold, as he sapposed, all the private lands of the
Keyal decedent. He took possession of the Pa Moo,
the lets at WaUdki, and the other lots embraced
in this actum. No claim was made at that time by
the heirs. Witness was a Crown Land Coramis
aaaer from lS&i to 1878, and the agent far Crown
Losas. OB was also tne business agent lor Queen
Emma from 1561 to 1874. He
not as ssch
agent, cosader that they belonged to her (the
heirs), a nese Linos woaia nave been sola at tnat
fcacjf he hadHipposed they were of the estate of
Cross pram f natiotu I don't remenaber a raort
j9B ea Fa Moo, but think there was oae. He
coved the income from. Pa Moo, the lands at Wai
kOd aad at Lahatwa d arias the period of my com
ffliarfonorafeip. The lands sold were direct grants
to or purchases by Liholiho. Considered the oth
ers te be Crown Lards.
Cosnsel agree that there were no mortgages on
any of the premises in this case, the mortgages
beasg on Crown Laads and other lands than these.
The probate records of the estate of Kameha
rnnfa IV having been placed in evidence by the
Plaiatiif, I find that there were sundry orders of
Ccwrt for the sale of real estate with confirmation
at sales; that the Admiaistrators received 27.000
"f raEi the treassry for the release of mortgages
iiitii cit ob. Crown Laads," and that at the nasi
etMmumtot his accosnta aad discharge Jansary
19th InS, there was a balance dee the estate of
$&M7.7$, aa by the accoaat- There were ssadry
orders of the Coart respectiBg gaadry itetae, aad
court adopts the principle that an equitable es
toppel may bo set up in actions ot ejectment aim
constitute a bar to tho action. The court-may
then consider if the facts in this case support an
estoppel or establish an equitable lien:
Tho preamble of the Act of Dec. SO, lSGt. states
that bythe existing law tho Consorts of the Kings
of Hawaii are entitled to dower in the Itoyal Do
main, as had been decided by the Court. She had
therefore a right to it, and the concluding clause
of the preamble of " whereas it is jnst and proper
that Queen Emma should be enabled to maintain
a style of living suitable to her station and digni
tv," is inconsequential, unless iho permanent set
tlement .was completely dispropottioned to the
value of "the dower, which is not pretended, for if
it was her right it was secured to her on tho Itoyal
Domain, and it was not for her benefit, but for
that of the incumbent of the throne, that the Leg
islature voted to relieve the Crown estate of tho
charge by paying what would bo taken by the
plaintiff "as an equivalent. The Act contains tho
sole condition that she shall first relinquish her
dower in the Itoyal Domain, and it cannot bo con
sidered that she'was to relinquish any other rights
interest or estate.
The subsequent Act of Jan. 3d, 1SG3, makes the
lloyal Domain inalienable, places it in the custody
of three Commissioners and authorizes the Minis
ter of Finance to issue Excheqer bonds to the
amount of not more than 30,000, which tho Com
missioners, jointly with the Minister, may negoti
ate for the redemption of the mortgages which
may remain unsatisfied, after tho administrator of
His late Majesty's estate has exhausted all the
private estate which the administrator may be le
gally entitled to use. Tho proposition of tho de
fendants here, is that the administrator ought to
have sold these premises if they wero private estate.
Let us see. The preamble of the Act refers only
to mortgages charged on the Itoyal Domain, pur
suant to the finding of the Court, that the Domain
should pay what was charged upon it. It is ad
mitted in proof that there was no mortgage on these
premises, and the adninistxator's accounts state
that the $27000,received from the treasury was to re
lieve mortgages charged on the crown lands. From
this it follows that the administrator would not
have been legally entitled to sell such private es
tate ot the decedent as is here in question, tor the
payment of such debt3 as were met bv the 27000
taken from the Treasury, and that ho should not
i r . . V e 1 - 1 1
nave soia mem oeiore inKiug lunus irom ice gov
But this sum of money was not at that time a
gift to the Itoyal Domain, much less, was it a ben
cfit to the plaintiff. She had parted with her in
terest therein, in consideration ot the annuity irom
the Government. It does not appear that tho
amount of the permanent settlement had not been
made with reference tothevaiueof dower in the
estate as mortgaged, and in any case, this amount
had been agreed upon, with no condition of any
other release than of the dower herein, It was yet
only a lean ot the Government credit, ejection o
provides that one fourth part of the annual reve
nue of the Crown Lands shall be paid into tho
Treasury to satisfy the interest and accumulate a
fund for the payment of the bonds " until the en
tire sura authorized to be loaned should be paid."
In 1EG6, July Cth, was passed an Act which, re
citing in a lengthy preamble that His Majesty,
Kamehameha Vj had derived but small advantage
from the Crown lands in consequence of the
charges upon them, and in view, especially of His
Majesty's generosity, in consenting to the limita
tion ot the itoyal uomam, enacts that the Hawaii
an nation assumes the payment of the bonds
issued under the Act of Jan. 3d, ISCj.
It must be apparent that the effect of this Act,
as of the Act granting the annuity, was for the
benefit of the reigning Sovereign, who might then
enjoy the entire income of the Crown Estate. How
then were the heirs of the private estate of the de
ceased Sovereign, bound by equitable principle to
surrender this private inheritance for this consid
eration moving solely for the benefit of the incum
bent of the throne? Or how can it be said that
this contribution of the Government to the Crown
Domain forms a lien on the inheritance which tho
Commissioners have held possession of. to be dis
charged "before surrender? To whom should this
lien be paid.' it to the commissioners, it is a gift
of another 27000. And the Government does not
hold the premises and demand payment.
If we then dismiss the claim as untenable on
vrhat may be called the facts of the cause
there remains only the claim as based on the
declaration in the testimony of the administrator
that he sold all the lands which he supposed to
have belonged to Kamehameha IV, in his private
right and would have sold these if he had consid
ered them such. Little need be said upon this in
view of tho line of reasoning which the coart has
followed, upon estoppel grounds the administra
tor was estopped from claiming that he injured the
Crown Lands by neglecting to sell this estate be
fore selling any part of tho Crown Lands (if he
did sell such) or before coins on the Government
credit, for he was also the Crown Land agent, and
as such must be held to have forborne to realize
antr time assert their claim as now the plaintiff
The finding of the court is for the plaintiff pur
suant to the description of the premises in the
complaint, less tne pieces disclaimed, lxti 2o. 10,
r u 1 1 , r .1 etr.'
mcharaeha IV: with costs.
W. It. Castle and F. M. Hatch for plaintiff: tha
Attorney-General for defendants.
Hoji-oun.tr, March 3rd, 18S3.
OF ALL SIZES t
KITCHEN ASD HOUSEHOLD UTEXSILS-of
PAIXTS AND OILS-of all kinds;
LU15KICATIKG OILS best stock in the market;
KEROSENE OIL Downer's, Noonday & Lustral;
SILVER PLATED WARE from Heed it Barton;
SOLID SILVER WARE f rom tho Gorham Co.
POWDERS all kinds, from Cala. Powder Works
CARRIAGE AND MACHINE BOLTS-all sizes;
A Splendid Assortment t
LEATHER Of All Descriptions;
rsr-Our Goods are ot the best quality: arc bou"Ut
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AT OUR WAREROOIY1S, corncr-of Fort and
Kinc Streets, Honolulu. 937
OPTICIAN AND JEWELER!
H.VWA1UX GAZETTE UCILDIXG, MER
CHANT STBEET, HOSOLCXC,
Has Received, Per Late importations,
A large and Varitfl Assortment of
Ey GUijcf, Spectacles, Sliootinj Ghtses, etc
J- 33 L 3FL 5T,
la Gold, Sliver and Plated Ware, and of the
From the Factories of tne Most Appror
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312 CALL AXD EXAKIXE Ml' STOCK. ly
RAISIN'S A2TD CURRANTS. SIXL
tasa Kaifta arsdFaatl Currant, is 4th and HHh
package?, acwasd ffesli. FoSalebr
3NT3E3"7V STORF. !
. Nos. 56 & 58 Queen Sts
Xcxt ilooritoyiaisonic Hnll,
ItesiMt Parlor Suits.
- rrinr.i Xora .Bedroom Sots,
Quito a Now Style;
Justthc Thing Tor Plantations:
Woven "Wire Mattresses,
Hair & Spring do.,
Curly Hair do.,
Hair and Feather Pillows,
Excelsioi and Straw Mat
THE LARGEST STOCK
Jy tlie Suea I xm in ciij
At the California Fumififi Jk's S,
OF AN INVOICE OT-
AS WELL AS
LAINE & CO.
Hnvc constantly on baud,
jLj ztje&G Quantities
Hay and Grain
of all kinds, which wc offer to pnrchaiers ot the
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Our Stock lj renewed ljr each nrrlral
from tho Coast.
HAVING A GRIST-MELX !
WE ARE PREPARED
to CSkrlixca. Grain
of all kinds al 307 time
ji;n-ekai, agents fok the
Pacific Mutual Life Insurance Company,
State Investment Insurance Company,
Hoover Telephone, the Simplest, Best,
ASH CIIEAPEST 2TOW IX USE.
Ilonolnlii.Jan. 3d. lfiS5.
OX ACCOUNT OPPKESSUJ IK Or
time MrJ.'A. il.HKLLIS li cdnnellnl tauotlfr
her patron that (be will tee them oalr on WKUKKfv-
DAYS and FKIDAV.S of Bach treek oatil fnrthen
MRS. A. M. HELLIH.
Xo. 1M Fort Strtet.
The Lowest Prices !
Agent for the Hawaiian Islands.
Have "Sow Bea
111 San Krrfntifrt. mil n ftm r r STts .
Have Given Perfect SaiJfefor f
Wo enn couddcntly reevmaend tke
A SUPERIOR INSTRUMBfT
and will warrant them frc. foroarjear,
IX PEltKECT TCXE. THE
arc mann factored ttt Xcir York,nrhretfcrx
wt-ps flt Introdneedln Trs.i?w.
Of These lustrum ckJh
Are now in Use
Combine all the Latest awl Its!
l'atent Metallic Action Frame, In one piece; Rtt
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oa-They Fosscss Extraordinarr I'cmer,. ritHi J
aud Volume of Tone.aa well as Krspon.Ire jrJ.Tcaci
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PRICES TO SUITTHBT1M1S
i:eiireemlns JIATTIUAS tiltAt EitK of Saa
FrjLcUco, Ajjcut for the CElESMTEi
So Wcll-Knuwc to AU Uie3lutc3J World. lean
Fnrnish These fcuIcUdid Instrnme ntj
AT THE AGENrS BATES.
New Goods S
HAS JUST RECEIVED
GLENGABER " and
other late arrivals,
THE FIXEST AbSOKTMENT OF
TO B i-OUXl IN THIS KIXUDOM.
A VISIT TO HIS
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King St. Store,
Queen St. Store,
Will -well repay the care
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J. T. WATERHOCSE.
M1,!-. ILU1THAS JUST Ull
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TUB AtfXOK IIOCHE. Xemt. Ht ,jro ,
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BLOCKS AND 3IAST UOOPS
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S . IV
0 Mill Plftwt
, Of the tlTMitelURm, , !
HAttD!iii hi "mm
FORT STREET, Oppo.f j
DOXKT f) imnvu 1V1
Tfee IoUbwwk k takes froa an iatemtwc
"It k perfem tWW tUt tTI
uiamr Heap. TaCr. itaMea VlUu HrWj
WHALlt akp w
. BIOS AXH aofFKK.
A T T AT? rnTTTI ' k -rt,
2 Wriif kt4roM ByilKlHiiS
' A awtcili -r-r