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TILE PACIPIC COMMERCIAL ADVERTISER; UOIZOIAJIAJ, OCTOBER 26, 1894.
T.'i In the Supreme Court of the Ha waiian Islands. September Tekm, 1804. Jaues 15. Castle, Coi.lector-Gkx-ekal ok Customs, vs. 200 Casks of Siioyu axd other UOOD3 ALLEGED TO V.K THE Property ok S. Ozaki. BEFORE Jl'DD. C.J. : KICKERTON AND FREAR, JJ. APPEAL FROM OF THE THE CIRCUIT COURT FIRST CIRCUIT. An allegation of a seizure of goods by the Uollector-ueneral lor the purpose of confiscation is sufficient to eire the Admiralty Court jurisdiction over the Roods, without a further arerment that toe goods are sua in his possession, and without a further seizure by the .Marshal, under cec. mt. Coup. Ufff. OPINION OF THE COURT RV BICKER- TON, J. The libel and complaint in this case alleges : First, that the steam- Viin flo nl !o orn'irw! of tHft rkfirf. nf Honolulu from Yokohama, a port in Japan, having on board foreign merchandise, including the Coods and merchandise mentioned in the MhU. ntfflrW. wViinr, mrA in- c r,u: r :,i tt inin "Second. That on, to wit, the 15th day of May, A. D. 1S94, the said goods were entered at the Uua- torn House in said Honolulu, by said S. Ozaki, as and for a total value of, to wit, One Thousand and Ninety-one and S3-100 Dollars ($l,091.S3),whereasin truth and in fact the said goods then and there were of the value of, to wit, Three Thousand Six Hundred and Sixty- four and 2S-100 Dollars ($3,GG4.2S), as this libellant is informed by competent appraisers, and so be- 'lieveg." "Third. That the invoice of said goods, as libellant is likewise in formed and believes, was a false and fraudulent iavojce in respect of the value of said goo: 8, and in such false and fraudulent condition, was I by the said S. Ozaki, passed through the paid Custom House." "Fourth. That said goods there upon became liable to seizure and confiscation, and that this libellant has seized the same for said pur pose." "Fifth. That all and singular the matters herein stated are true, and within the jurisdiction of this Honorable Court." And prays for process against the baid goods, and that said Ozaki and all other per sons claiming any interest therein may be summoned to appear to answer the libel ; and that said goods may be declared forfeited and confiscated to the Hawaiian Gov ernment and be sold as required by law and for such other relief or order as may be just. The order for process as prayed for was made ; and return of service made on the summoos August 14, 1894. On the 31st of the same month, said S. Ozaki filed a plea to the jurisdiction wherein he submits and says, "that it does not appear from said complaint or libel that this Court has any jurisdiction to hear and de termine this cause, for the reason that it does not appear from and by said complaint or libel that the goods therein alleged to have been falsely and fraudulently entered and passed through the custom house at Honolulu, or any of the same, are now, or were at the time of the filing of said complaint or libel, in the custody of said Col lector-General, or elsewhere within the territorial jurisdiction, or within the custody or control of this Court, or of any of its officers. Wherefore this appearer submits and prays that said complaint or libel may be dismissed, with costs to this ap pearer." After argument by counsel on both sides the libel was dismissed, and the Attorney-General, on be half of said libellant, appealed from the said order dismissing the libel to this Court. The only question now before this Court for consideration is: Are the allegations in the libel suffi cient to bring the matter within the jurisdiction of the Admiralty Court? We are of the opinion that they are. It is contended by respondent's counsel, "that it is essential to the jurisdiction of the Court that the res should be in the custody and under the control of the Court. Such custody may be either actual or constructive, but it must exist, and should be alleged in tht libel or otherwise bo made to appear as existing." This, in the main, is our understanding of the law, and is undoubted. Several other points are raised and argued by respond ent's counsel, which may, perhaps, be properly raised in the trial of the case on its merits, but are not for our consideration now on this appeal. Sec. GOT of the statute, Comp. Laws, p. 191, provides that all goods eeized shall remain in the custody of the Collector or other officer of the Customs, until it shall be ascertained whether the same are liable to forfeiture or not. Thi3 must be construed to mean that the Collector or Customs authorities are made by law the custodians of the goods seized, pending the proceedings and judg ment of a Court of competent juris diction. The statute provides a. complete course of procedure in case of a violation of the same. The libellant alleges that he has seized the goods in question for the purpose of confiscation, and it is only fair to presume that he has followed the course of procedure laid down in the statute, until it is shown to the contrary ; and that he, the libellant, still has the cus tody or control of the seized goods. Sec. G6S provides for the trial of cases where the goods have been released on bond pending the pro ceedings, showing beyond any question that the law does not make it necessary that the goods should be transferred from the Col lector to the Marshal or other officer of the Court. In the case of "The Brig Ann," 0 Cranch, p. 289, Mr. Justice Story, "ho delivered the opinion of the Co"rt irJ apeaking of the actual and constructive possession of the goods, held that the property was in the constructive possession of the Court "when by a seizure it is h.eI to ascertain and enforce a ft or forfeiture which can alone uo j aJ"u'' m rem. The allegations in the libel that the goods in question had been brought in the vessel into the port of Honolulu, and entered in the Custom House at Honolulu and had been seized by the Collector General, who is by statute the Col lector of the port of Honolulu, are sufficient to show that the goods were then in Honolulu, which is within the territorial jurisdiction of the Circuit Court First Circuit. The plea to the jurisdiction should have been overruled and the decree and order dismissing the libel now appealed from should he reverded. And it is so ordered. W. O. Smith, Attorney General for libellant; C. W. Ashford, for libellee. Honolulu, October IS, 1S94. In the Supreme Court of the waiian Islands. September Term, 1894. Ana Kapuaeela vs. Isaac D. Iaea and Cecil Brown, Trustee. befoee JUDD, C J., EICKERTON, FREAR, JJ. AND APPEAL IN EQUITY FEOil CIRCUIT JUDO FIRST CIRCUIT. (1) A bill in equity to cancel a deed on the ground of fraud failed on the evidence. The deed covered all the land in a cer tain Koyal Patent. The Court refused to allow plaintiff to amend her bill so as to admit of a decree, under the general relief asked for, that defendant convey to her the share of the land she claimed to be (by descent from the patentee) entitled to; she claiming that the deed covered more than the grant or was entitled to by descent from the patentee. The plaintitf was out of pos easion. Held, no error, as this was a matter for law and not for equity. (2) Equity has cognizance of an equitable title whether the complainant be in or out of possession. If the title claimed te legal in its nature and the complain ant be out of possession and a resort to ejectment will relieve him, equity will decline jurisdiction. OPINION OP TIIE CCUliT BY JUDD, C. J. On the 8th December, 1S93, one Pilipo, a few days before his death, made a voluntary conveyance to the defendant Iaea for the nominal con sideration of one dollar and his af fection to said Iaea, reciting him as his foster son. The land conveyed 13 situate in Waiaa, Ewa, Oahn, hav ing been granted by Iiaval Patent No. 168 to one Liliu in iSol. The land was in possession of the grantor at the time of the conveyance and had been so for many years. Later the defendant Iaea conveyed this land, among other parcels, to Cecil Brown, Esq. as Trustee to secure a sam of money advanced to pay a pressing obligation of the said Iaea. One Ana Kapuakela neice and sole surviving heir at law of Pilipo, grantor of the deed in question, brought a bill in equity in March of the present year to cancel the said deed as having been proenred of the grantor, by defendant Iaea, by fraud, undue influence, persuasions and other means, taking advantage of the grantor's severe illness and mental weakness. The defendant Iaea ad mitted that the plaintiff was the nearest of kin and heir at law of the said Pilipo, but relied upon his deed from Pilipo. The plaintiff admitted ly failed to make out a case of fraud. She, however, put on testimony tend ing to show that one Kaapahili, the father of Pilipo, was a brother of the original Patentee Lilia, and as the plaintiff was the neice of Pilino (be- ! ing the daughter of Kaniae a brother of Pilipo), therefore the plaintiff was entitled to one-half of the land of Lilia as a tenant in common with Pilipo. Therefore, before closing, plaintiff moved to be allowed to amend her bill by the insertion of a clause that plaintiff is and has been since t e death of her father Kamae entitled to an undivided half of the said premises. This amendment was asked for to entitle the plaintiff to ask, under the prayer for general re lief, that the defendant, Mr. Brown, in whom the title was, might be ordered to convey to the plaintiff one undivided half of the lands, the deed of Pilipo wrongfully covering all the land. This amendment was refused by the Circuit Judge and the bill was dismissed on the inerity. Ap peal was taken, and the point pre sented to us is that the refusal of the Court to grant the amendment was erroneous. It is not competent for a Court of Equity on a bill to cancel a deed for fraud to try the title of the maker of the deed to the property involved, for this is a question of law. More over the defendant denied that the property came to Kaapahili, the common ancestor by descent from the Patentee Liliu and he had a right to make this defense before a jury. The claim of plaintiff that she was entitled to an undivided half of this land was a claim of a legal nature and equity ha3 no jurisdiction to determine it. Cases are cited by plaintiff to sus- w; LIiewu -a ?ou-rfcv .eqaitS a matter will continue it and trrant. under the prayer for general relief, Bucu reuei as me piaintm is entitled to without his having claimed in the bill that particular relief. As a general proposition this is true, but it does not apply here. In our case eqnity had jurisdiction solely because fraud was alleged. This failed on the flvinpnro. Tnoro wna nrvtViJ n - left which the plaintiff asks for but hose will appreciate the AVAT ber claim of a legal title in the land. ERBURY STEEL ARMORED equity uas do jurisdiction or sucn a question. This will be perfectly clear if we make the supposition that the bill originally solely asked that Sltnr WlBB T the i Truse0 Brown conve? of the land to her. Such a bill would be demurrable on the ground that plaintiff had a plain and adequate xwiiioujr ai Jan. auu bub la in uv better position now. The case of Whipple v. Farrar, 3 Mich. 447 ia especially relied on by plaintiff. In that case the court, having determin ed that the equitable title of the premises was in the complainant, decreed possession to him instead of leaving him to his further remedy by ejectment. In the case before us plaintiff had not proved an equitable title to the land. In the same court that decid ed Whipple v. Farrar, it was held that a bill to quiet title by a com plainant not in possession against one in possession, cannot be main tained, where no reason appears for not bringing ejectment. Barron v. Kobbins, 22 Mich. 35. This we find i3 the law. See Johnson v. Huling, 127 111. 14. We put the case as follows: Plaintiff asked that the deed be cancelled, alleging fraud. This ground failed. She being out of possession now prays that the grantee of the deed convey her one half of the premises because she has a legal title to it, and asks the Equity Court to pass upon this independent question. To enable a party not in possession to maintain a bill to quiet title he must i ri-i.i iu.i x be enforced at law. Smith v. Mc Connell, 17 111. l3o. Tn ft Pnmnrftv Vr, .7nr nan 1QQQ note 4, the rule is thus stated: "When the estate or interest to be protected is equitable, the junsdic- tion (of equity) should be exercised, wnetner toe piaintm is in or out of possession, for under these circnm- stances legal remedies are not possi- Die; out, wnen ine esiaie or interest is legal in its nature, tne exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus, for example, a plaintiff out of posses sion, holding the legal title, will b left to his remedy by ejectment under ordinary circumstances." This is approved in Graves v. Ewart, 11 S. W. Kep. 971 (Mo.) and we hold it to be good law. The plaintiff was not entitled to tne amendment and her bill was properly dismissed. Carter & Carter for plaintiff; W C. Achi for defendants. Honolulu, October 15, 1S94. BYAUTHOBITY. Water Notice. Owing to the drought and scarcity of water, the residents above Judd street are requested to collect what water they may require for housencld purposes be fore 8 o'clock A. M. ANDREW BROWN. Superintendent Honolulu Water Works. Honolulu, H. I., July 20, 1S94. 3744-tf Irrigation Notice. HoUera of water privileges, or those oavinur water rates, am hprphv m w - v u w tuw v i that the hours for irrigation purposes are j Irom i to b o'clock a. m. and 5 to 6 o'clock p. m. A. BROWN, Superintendent Honolulu Water Works. Approved : J. A. King, Minister of the Interior. Honolulu, May 25, 1S94. 369S-tf The month. Daily Advertiser 75 cents Delivered by carrier. a dprrial Totircs. 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