LEWERS AND COOKE, LIMITED, v. ATCHERLY.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

HAWAII.

No. 69. Argued December 4, 1911.-Decided December 18, 1911.

Where one asks the aid of a court of chancery in executing a former decree, he takes the risk of opening such decree for reëxamination. Laurence Manufacturing Co. v. Janesville Cotton Mills, 138 U. S. 532. Of two former decrees adjudicating title to real estate, the Supreme Court of Hawaii having found that the earlier was right and bound all interests and that the later was wrong, this court affirms, seeing no reason for not following the local court.

Great weight should be attributed to the decision of the court on the spot, especially when ancient law is involved, such as existed in Hawaii before the annexation.

This court sustains the rule laid down by the Supreme Court of Hawaii that decisions of the Board of Land Commissioners of 1845 could not be attacked except by direct appeal to the Supreme Court of Hawaii as provided by law.

A decree establishing a will may determine who is entitled to testator's property without determining that a particular property belonged to the inheritance.

Where a case has not passed to a final decree one buying pendente lite from a party thereto stands no better than the vendor. Mellen v. Moline Iron Works, 131 U. S. 352.

18 Hawaii, 625; 19 Hawaii, 47, affirmed.

THE facts are stated in the opinion.

Mr. David L. Withington, with whom Mr. William R. Castle, Mr. W. A. Greenwell and Mr. Alfred L. Castle were on the brief, for appellant:

It was error to overrule the discretion of the Court of Land Registration in declining to reopen the decree of 1858. The court then had jurisdiction, the case was decided on the merits, and, whether the decree was right or wrong, the decision is now stare decisis, and property rights have been built up on the faith of that decree. Darling v. Westmoreland, 52 N. H. 401. See also as to other matters in

discretion of the court, Central Trust Co. v. Locomotive Works, 135 U. S. 207; Davis v. Braden, 10 Pet. 286; Early v. Rogers, 16 How. 599; Slicer v. Bank of Pittsburg, 16 How. 571; McAllister v. Kuhn, 96 U. S. 87; United States v. Estudillo, 1 Wall. 710; Rio Grande Irrigation and Colonization Co. v. Gildersleeve, 174 U. S. 602.

No abuse of discretion on the part of the Land Court has been shown. Appellants have a legal title to the land, since it will be presumed that a deed has been executed, as adverse possession was found by the Land Registration Court, Kaai v. Mahuka, 5 Hawaii, 354; Fauntleroy's Heirs v. Henderson, 51 Kentucky, 447.

The equitable title is in appellant. Before the Mahele, land tenures were in one sense feudal, but by the Great Mahele the King surrendered the allodial ownership of the land, reserving certain portions to the crown, certain portions to the King personally, and certain portions for the public use. Commissioners were appointed, upon whom were conferred all private and public powers over property belonging to the King, who were only authorized to ascertain the claimant's kind and amount of title and to award for or against that title. Thurston v. Bishop, 7 Hawaii, 421; Art. IV, c. IV, Kamehameha III, 107.

At the time of making this award, April 10, 1849, the guardian had the absolute control and management of the ward's property, with the power to dispose of the same without the necessity of any order of court, and his failure to present a claim to the Commissioners was binding on the infant. Kamehameha v. Kahookano, 2 Hawaii, 118; Laanui v. Puohu, 2 Hawaii, 161.

Even had the guardian done his duty, the proceedings would have been the same, excepting that the award and the patent would have been issued to the guardian for the ward. Kalakaua v. Keaweamahi, 4 Hawaii, 577; Lono v. Phillips, 5 Hawaii, 357, 359; Kaaihue v. Crabbe, 3 Hawaii, 768; Jones v. Meek, 2 Hawaii, 9.

222 U. S.

Argument for Appellant.

The Hawaiian court had jurisdiction in an action to reach property in a suit in equity. Montgomery v. Coady, 2 Hawaii, 322; Davis v. Brewer, 3 Hawaii, 270, and 3 Hawaii, 359; Wei See v. Young Sheong, 3 Hawaii, 489.

Equity will relieve against every species of fraud and so may set aside or annul decrees or judgments obtained through fraud. Akeau v. Iakona, 13 Hawaii, 216; Norris v. Herblay, 9 Hawaii, 514; Mills v. Briggs, 4 Hawaii, 506; and see Hop v. Parke, 6 Hawaii, 688; Hackfield v. Bal, 6 Hawaii, 364. See also Perry v. Lucas, 11 Hawaii, 350; Kapea v. Moehonua, 6 Hawaii, 49.

The minors having been represented at the probate of the will by their guardian ad litem, and having contested the probate, are bound by that judgment. Keliipelapela v. Pamano, 1 Hawaii, 503, 505.

Judge Allen was bound by the decision of Judge Robertson in probate, who held that Kalakaua was the equitable owner of the property and that Kinimaka was his guardian under the will of Kaniau.

The Hawaiian cases cited by the court are not in conflict with the holding of Chief Justice Allen and Kukuahu v. Gill, 1 Hawaii, 90.

The decisions of this court sustain Chief Justice Allen's jurisdiction.

Where one party has acquired the legal title to property to which another has the better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title. Johnson v. Towsley, 13 Wall. 85; Stark v. Starr, 6 Wall. 419; Bagnell v. Broderick, 13 Pet. 436; Patterson v. Winn, 11 Wheat. 380; so where one an agent of another procures the patent to be issued to himself; Ringo v. Binns, 10 Pet. 269; and for cases where property has been adjudged to be held by the legal owner as trustee ex maleficio see, Angle v. Chicago R. R. Co., 151 U. S. 1, 26; Moore v. Crawford, 130 U. S. 122; White v. Cannon, 6 Wall. 443; Massie v. Watts, 6

Argument for Appellant.

222 U.S.

Cranch, 148; Meader v. Norton, 11 Wall. 442; Felix v. Patrick, 145 U. S. 317, 328; Bernier v. Bernier, 147 U. S. 242; Bockfinger v. Foster, 190 U. S. 116; Johnson v. Waters, 111 U. S. 640; Widdicombe v. Childers, 124 U. S. 400; Sanford v. Sanford, 139 U. S. 642. See also cases in regard to Californian and Mexican titles holding that the act in regard to private land claims includes perfect as well as inchoate or equitable titles, and that the only remedy is by appeal. Botiller v. Dominguez, 130 U. S. 238; Ainsa v. New Mexico & Ariz. R. Co., 175 U. S. 76.

The act provides for a confirmation rather than a quit-· claim. Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339; Los Angeles F. & M. Co. v. Los Angeles, 217 U. S. 226.

Trust relations respecting the property between the patentee and others may be enforced equally with such relations between him and others respecting any other property. More v. Steinbach, 127 U. S. 70.

There is nothing in the Hawaiian act which would justify any distinction between the principles laid down in these decisions and the principles to be applied to the case of 1858.

As there is neither Hawaiian statute nor judicial precedent in conflict, these cases are binding on the Hawaiian court.

The decree of Judge Roberston admitting the will of Kaniu to probate is a binding adjudication that Kalakaua was, after the death of Kaniu, beneficially entitled to the premises in question. Keliipelapela v. Pamano, 1 Hawaii, 503, 505.

The decree of November 2, 1858, is a conclusive adjudication between the parties, and is complete and final. Kuala v. Kuapahi, 15 Hawaii, 300; McChesney v. Kona Sugar Co., 15 Hawaii, 710; United States v. Morse, 218 U. S. 493, 505; Mellen v. Moline Malleable Iron Works, 131 U. S. 352.

If the decree of 1858 was not adversary but by consent,

222 U. S.

Argument for Appellant.

yet as it is based on a valuable consideration, namely, the release of other lands, it cannot be upset to-day.

The decision in Kapiolani Estate, Limited, v. Atcherly is a binding and conclusive adjudication on the appellee. If the decision of 1903 is not the law of the case, then the question should be regarded as foreclosed on the ground of stare decisis. Vail v. Arizona, 207 U. S. 201.

The decisions of Judge Robertson and Chief Justice Allen in 1858, and the decision of the Supreme Court in 1903 having laid down a rule of property, the appellant was entitled to rely upon it in making a purchase of the property, and the Hawaiian court cannot disregard its former opinion.

These decisions had become a rule of property, and the appellee relied on them in paying only $50 for the Kinimaka title in 1897, before the decision of 1903; and the appellant relied on all the decisions, including that of 1903, as declaring a rule of property, in paying $35,000 for the Kalakaua title. Kuhn v. Fairmont Coal Co., -215 U.S. 372.

A single decision of the Hawaiian Supreme Court has been held to establish a rule of property. Kealoha v. Castle, 210 U. S. 148. It is not only a rule of property, but is a rule of this particular property, which the purchaser had a right to rely on, and which is binding on every court until reversed. Grignon v. Astor, 2 How. 343; The Propeller Genesee Chief v. Fitzhugh, 12 How. 451, 458; Henderson v. Griffith, 5 Pet. 151; Minn. Min. Co. v. Nat. Min. Co., 3 Wall. 332; Bibb v. Bibb, 79 Alabama, 437; Hihn v. Curtis, 31 California, 398; Schori v. Stephens, 62 Indiana, 441; Frank v. Evansville & I. R. Co., 111 Indiana, 132; Dunklin County v. Chouteau, 120 Missouri, 577; White v. Kyle, 1 Serg. & R. 15; Bright v. Esterly, 199 Pa. St. 88; Henderson v. Rost, 11 La. Ann. 541; Wilkins v. Chicago, St. L. & N. O. Ry. Co., 110 Tennessee, 442; Union Ry. Co. VOL. CCXXII-19