Matsuo v. Texeira

  This is a statutory action at law to try title to real
property. Plaintiffs claimed title by prescription as joint
owners in fee simple. The land involved is lot 28 of the
subdivision of R.P. 4475, L.C.A. 7713 to V. Kamamalu, Holualoa 1
and 2, containing an area of 1.38 acres and described in the
complaint by metes and bounds. Trial was had, jury waived.
Judgment was for plaintiffs and defendants prosecuted exceptions.
  The only exception that need be considered is that to the
decision upon the ground that it fails to disclose any findings
of fact which would justify the conclusion that the plaintiffs
had acquired title to the land in dispute by adverse possession.
In our opinion this exception is well-taken.
  It is alleged in the amended complaint "that the plaintiffs and
the parties under and from whom they claim title and hold
possession have actually had and held said parcel of land [lot
28] uninterruptedly, exclusively and adversely ever since the
year 1917 or 1918 in good faith and under claim of right and
color of title." In support of the latter allegation, plaintiffs
offered evidence of color of title from one de Aguair the
devolution of which included an alleged parol grant from de
Aguair to one Muller. The evidence of color title also included a
deed from Muller to Texeira dated December 31, 1920; a deed from
the latter to one Pacheco dated December 15, 1921; a lease from
Pacheco to Y. Matsuo, the husband of plaintiff, dated November
27, 1926, for a period of ten years from January 2, 1927; a deed
from Texeira to the plaintiff Matsuo dated February 21, 1927, and
a deed from Pacheco to the plaintiff Jose dated May 9, 1927. The
deed from Muller to Texeira was of all of lot 28. The deed from
Texeira to Pacheco purported to convey an unidentified half acre
included in lot 28 described as "about I/2 of an acre more or
less land lying and situated mauka of the upper Government road
in the

land of Holualoa, District of North Kona," concluding with a
reference to the deed from Muller to the grantor. The premises
were not described by metes and bounds nor by reference to any
artificial or natural boundaries on the ground. This deed was
placed of record December 2, 1926. The lease from Pacheco to Y.
Matsuo, the husband of plaintiff, purported to demise the
premises said to be conveyed to the lessor by Texeira and
described the same as "all that certain piece or parcel of land *
* * containing an area of One-half (I/2) Acre, more or less,
lying on the mauka side of the said proposed road and opposite
the said Allotments 17  18, the boundaries of which are
distinguished and bounded by a stone wall." The "proposed road"
referred to is not elsewhere defined. Allotments 17 and 18 refer
to two lots to the west of lot 28 and separated therefrom by a
twelve-foot trail. The deed from Texeira to Matsuo conveyed to
the grantee all of lot 28. The deed from Pacheco to the plaintiff
Jose purported to convey among other lands the one-half acre
acquired by the grantor from Texeira, the deed describing the
premises as "one-half (I/2) acre, more or less, of land situate
in the land of Holualoa * * * the same being the identical
premises purchased from Antone S. Texeira by deed dated" etc. In
support of the allegation of title by prescription there was
evidence of occupancy by Texeira of lot 28; the occupancy by
Pacheco and by his lessee, Y. Matsuo, of a one-half acre
apparently included in whole or in part in lot 28 and occupancy
by the plaintiff Matsuo of the remainder of lot 28. Apparently
the plaintiff Jose had never been in possession of the one-half
acre claimed by her.
  To acquire a prescriptive title to land the possession must be
adverse, hostile, exclusive, notorious and continuous. (George
v. Holt, 9 Haw. 135, 139; Manumanu and Mahuka v. W.H.
Rickard, 4 Haw. 207, 208; Akowai v.

Lupong, 4 Haw. 259, 262; Judd v. Kuanalewa, 6 Haw. 329,
330; Albertina v. Kapiolani Estate, 14 Haw. 321, 325.)
  The court's decision with the exception hereafter noted is
devoted exclusively to a consideration of the alleged parol grant
from de Aguair to Muller. After a careful analysis by the court
of the evidence upon that question it concludes with the
following finding: "The idea of having divested himself of all
interest in this Lot No. 28 is so strongly corroborated by the
subsequent acts of Tom de Aguair himself is so overwhelming that
the Court can make but one decision, and that is, that for a
period of more than ten years before the institution of this
action to quiet title the plaintiffs and their immediate
predecessors in continuous succession had been in full possession
and peaceful and quiet enjoyment of the same that they, the
Plaintiffs, are entitled to have a Judgment entered in their
favor and against the Defendants with their costs." To entitle
the plaintiffs to prevail it was necessary for the court to find
affirmatively upon all the legal essentials of adverse
possession. The decision of the court however is absolutely
silent upon the character of the possession — whether it was
adverse, hostile, exclusive and notorious as well as "peaceful
and quiet." It is not sufficient that the court finds that the
plaintiffs and their immediate predecessors in continuous
succession had been in full possession and peaceful and quiet
enjoyment of the premises but it must appear that such possession
was adverse, hostile, exclusive and notorious. Otherwise the
possession of the plaintiffs was not adverse within the legal
concepts of that term.
  In Ward v. Cochran, 150 U.S. 597, an action in ejectment in
which the defendant relied on adverse possession for the
statutory period as a defense, the jury upon special verdict
found that the defendant's possession had been open, continuous,
notorious and adverse with claim of ownership. Error was assigned
upon the ground that there was

no finding by the jury that the possession had been actual and
exclusive. Judgment was reversed, the court holding: "Tested by
these definitions, it is obvious that if the title relied on in
this case, by the defendant below, was fully described and
characterized by the special verdict, it was defective in two
very essential particulars, in that it was not found to have been
actual and exclusive. A possession not actual, but constructive;
not exclusive, but in participation with the owner or others,
falls very far short of that kind of adverse possession which
deprives the true owner of his title." The case of Tyee Consol.
Min. Co. v. Langstedt, 121 Fed. 709, is quite similar to the
case at bar. The action was ejectment. The defense was the
statute of limitations. The case was submitted to the trial court
upon a stipulation of facts. The trial court in the precise words
of the answer found "that the defendant and his grantors and
predecessors in interest have been in the actual, open,
notorious, and continuous possession, for a period of more than
ten years prior to the commencement of this action, of the land
in controversy." On appeal the appellate division brushed aside
the defense of the statute of limitations and decided the merits
upon the failure of the trial court to find that the possession
of the defendant was also exclusive and hostile. After discussing
several cases decided by the Supreme Court of the United States,
including the Ward case, the court said: "Measured by these
utterances of the Supreme Court, the possession of the defendant
in error was not adverse, and did not amount to disseisin of the
plaintiff in error or its grantors. It was actual, open,
notorious, and continuous, with a claim of ownership, but it
lacked two essential requisites: It was not shown to be either
exclusive or hostile. The averment in the answer that the
defendant `now' claims adversely, if it have any significance,
serves only to strengthen the inference that prior to the
commencement of the action his claim was not

adverse. The possession not being adverse, the statute of
limitations never began to run. It was error, therefore, to enter
judgment upon the stipulation in favor of the defendant in
error."
  Section 4102, R.L. 1935, requires that where a trial is had,
jury waived, the court shall decide the cause both as to the
facts and law and its decision shall be in writing stating its
reasons therefor. The provisions of the statute are mandatory.
(Kahai v. Yee Yap, 20 Haw. 192; Woods v. Rapozo, 27 Haw. 20,
26.) And failure to comply therewith constitutes reversible
error. (Kahai v. Yee Yap, supra; Yoshiura v. Saranaka,
23 Haw. 761; Waianae Co. v. Kaiwilei, 24 Haw. 1; Sasaki v.
Nakamura, 26 Haw. 178; Woods v. Rapozo, supra.) This court
in Kahai v. Yee Yap, supra, in commenting upon the provisions
of the statute observed: "there is good ground for such a
requirement." The observation is peculiarly apt in the instant
case. The plaintiffs claimed ownership as "joint owners," in
other words, as tenants in common. In view of the allegations of
the complaint, findings upon the character of their possession
and that of their predecessors in interest where that relation
obtained are essential to a compliance with the provisions of
section 4102, supra.
  The exception considered is accordingly sustained and the cause
remanded for further proceedings consistent with this opinion.