222 U.S.

Argument for Appellee.

v. Chickasaw Cooperage Co., 116 Tennessee, 598; O'Rourke v. Clopper, 22 Tex. Civ. App. 377.

The decisions of 1858 and 1903 necessarily construed the statutes defining the jurisdiction of the Land Court and of the Supreme Court in 1858 and held that that court had jurisdiction. These decisions became a part of the law, and a subsequent decision could not change the rights of the parties. Houston & T. C. R. Co. v. Texas, 177 U. S. 66; State v. Comptoir Nat. D'Escompte De Paris, 51 La. Ann. 1272; 1 Kent's Com. 476; Suth. Stat. Constr., § 319; Rowan v. Reynolds, 5 How. 134; Ohio L. Ins. & T. Co. v. Debolt, 16 How. 416; Los Angeles v. Los Angeles City Water Co., 177 U. S. 558; Muhlker v. N. Y. & H. R. R. Co., 197 U. S. 544.

The rule is the same in regard to a conveyance as to any other contract. Its validity and effect is determined by the laws then in force. Stephenson v. Boody, 139 Indiana, 66; Haskett v. Maxey, 134 Indiana, 182; Levy v. Hitsche, 40 La. Ann. 508; Fisher v. Lott, 110 S. W. Rep. 822; Myers v. Boyd, 144 Indiana, 449.

Nor is it material in this case that the change is by judicial decision and not by statute. Loeb v. Trustees of Township, 179 U. S. 472.

The rule applies where the question involved is the jurisdiction of a court with reference to land. Herndon v. Moore, 18 S. Car. 355; Hall v. Wells, 54 Mississippi, 301.

Mr. Lyle A. Dickey, with whom Mr. E. M. Watson, was on the brief for appellee:

No presumption arises from lapse of time and occupation that in 1858 Richard Armstrong executed a deed of this land to Lalakaua. Ricard v. Williams, 7 Wheat. 221, 227; Fletcher v. Fuller, 120 U. S. 534, 550, 592.

The Supreme Court was not bound to follow its own prior decision in Kapiolani Estate, Limited, v. Atcherly

as stare decisis. Hertz v. Woodman, 218 U. S. 205, 212. The rule of law of the case did not deprive the Supreme Court of Hawaii of power to decide that the decree of 1858 was erroneous. A ruling on a demurrer is not such a final adjudication that the court may not reconsider its action and enter a contrary order nor decide the same matter differently when subsequently presented again in the same case. 31 Cyc. 350; Hamilton v. Marks, 63 Missouri, 167, 172; Jungk v. Reed, 12 Utah, 292; Reeves v. Petty, 44 Texas, 249, 254; Meyers v. Dittmar, 47 Texas, 373; Norton v. Knapp, 64 Iowa, 112, 115; Hastings v. Foxworthy, 45 Nebraska, 676, 697; Penn. Co. v. Platt, 47 Oh. St. 366, 379; Great Western Telegraph Co. v. Burnham, 162 U. S. 339.

The stipulation entered into between Kapiolani Estate, Limited, and appellee in the equity suit, to withdraw the original pleadings and substitute others and reciting that both parties wished to have the question of res adjudicata settled before proceeding farther, does not bind the parties here in any way, much less the court.

Appellant as a purchaser from Kapiolani Estate, Limited, bought pendente lite with notice of the pending litigation and the claims of appellee and so has no right to rely on any rule of law, there being no final decree. Mellen v. Moline Iron Works, 131 U. S. 352, 370; Gay v. Parpart, 106 U. S. 679, 696.

The principle of stare decisis does not apply to the decree of 1858 for there is no decision. The decree of 1858 lays down no rule of property.

Practice in the courts of a Territory is based upon local statutes and procedure and the Supreme Court of the United States is not disposed to review the decision of the territorial supreme court in such cases. Sante Fe County v. Coler, 215 U. S. 296, 307; Sweeny v. Lomme, 22 Wall. 208, 213; Mining Co. v. Arizona Board, 206 U. S. 474, 479; Fox v. Haarstick, 156 U. S. 674, 679; Maytin v.

Vela, 216 U. S. 598, 602; Armijo v. Armijo, 181 U. S. 558, 561; English v. Arizona, 214 U. S. 359, 363.

The original tenure of Hawaii from the time Kamehameha first established the monarchy to 1839 was feudal and a despotism. The King and each overlord under him had absolute ownership and control of the land and people under him. Rev. Laws of Hawaii, pp. 1164-66, 1179, Laws of 1842, of Hawaii, Ch. LIV.

The awards of the Board of Commissioners to quiet land titles gave fee simple titles for the first time; did away with feudal tenure and settled forever all claims to lands arising prior to December 10, 1845. See act to organize the Executive Departments of the Hawaiian Islands. Part I, Ch. VII, Art. IV.

In the case of 1858 no fraud, actual or constructive, was pleaded or proved. General allegations of fraud are insufficient. Greenameyer v. Coats, 212 U. S. 434, 444; United States v. Arredondo, 6 Pet. 691, 716.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an appeal from a decree refusing to the appellant the registration and confirmation of its title to a parcel of land, described as lot 1 of Land Commission Award 129, Royal Patent 1602. 18 Hawaii, 625. 19 Hawaii, 47. The appellant claims through mesne conveyances from David Kalakaua. Kalakaua was adopted by one Kaniu as her child. She had certain rights, not fully defined, in the land, and left all her property to Kalakaua by an oral will in 1844. Her husband, Kinimaka, seems to have reported this to the King, as required in those days, and there is evidence that the King disapproved it on account of Kalakaua's youth. The fact is not found or admitted, however, and the judge who established the will denied the power of the King. In 1849 the Land Commission adjudged the land to Kinimaki in fee simple. In 1856, on or

shortly before his coming of age, Kalakaua filed a bill in equity in the court of land registration of Oahu, according to the finding of the Supreme Court, to establish a trust against Kinimaka, but this suit was not carried to final decree. In 1858 he proved the will of Kaniu, 2 Hawaii, 82, and thereafter in the same year brought another bill against the widow and guardian of the minor children of Kinimaka, who had died, which ended in a decree that the guardian convey the premises to Kalakaua. This was in 1858. There was no conveyance in accordance with the decree, but Kalakaua occupied the land before and after he became King, conveyed it to his wife, Kapiolani, in 1868, and after his death she occupied it until her death in 1898.

The respondent claims by virtue of a remainder limited in the will of Kinimaka. In 1901 she brought an action of ejectment, whereupon the Kapiolani Estate, Limited, brought a suit in equity to restrain her, on the ground of the foregoing facts. There was a demurrer, which was overruled, 14 Hawaii, 651, and in that stage of the case the appellant bought from the Kapiolani Estate. The cause is still pending, the parties having agreed to try their rights in the present suit.

When the demurrer to the bill of the Kapiolani Estate was overruled the subject mainly discussed was whether the decree of 1858 against the guardian of Kinimaka's children bound the children, they not having been made parties to the bill, as it was admitted that they should have been. But the decision now appealed from, while hinting at a possible difference upon that point, in view of 'the many indications that the decree of 1858 was substantially a consent decree,' placed itself upon a different ground. It held (18 Hawaii, 632) that the appellant, "in seeking to register a title depending upon the unexecuted decree in Kalakaua v. Pai and Armstrong is, as against the holder of the outstanding legal title, in the same position as a party asking the aid of a court of chan

cery in executing a former decree, and it is well established that he must take the risk of opening up such decree for reëxamination. Lawrence Mf'g Co. v. Janesville Mills, 138 U. S. 552." Acting on this rule, as to the application of which in practice we see no sufficient reason for not following the local court, the Supreme Court came to the conclusion that the adjudication of the Land Commission in 1849 bound all interests, and that the decree of 1858 was wrong.

On this point also there is every reason for attributing great weight to the decision of the court on the spot. It concerns the powers of another earlier local tribunal and involves obscure local history concerning a time when the forms of our law were just beginning to superimpose themselves upon the customs of the islanders. Such customs are likely to be distorted when translated into English legal speech. Thus Kaniu is spoken of as the owner of the land; yet a few years before the King would have done with it as he liked, and that the tradition and fact had not wholly disappeared after his grant of the Constitution of 1839 is indicated by his alleged conduct touching the will. The precariousness of titles is emphasized by the laws of 1842. So it is said that Kinimaka was the natural guardian of Kalakaua, we presume on the evidence that Kaniu assented to a suggestion that she had better leave her property in Kinimaka's hands till Kalakaua came of age. But it would be going rather far to apply the refined rules of the English Chancery concerning fiduciary duties to the relations between two Sandwich islanders in 1846, on the strength of such a fact. The real foundation of settled titles seems to have been the establishment of the Land Commission in 1845. Thurston v. Bishop, 7 Hawaii, 421, 428. When the Supreme Court of Hawaii repeats what it has been saying for many years that the decisions of that Board could not be attacked except by a direct appeal to the Supreme Court provided by law, no imperfect analogy