LEWERS AND COOKE, LIMITED,

v.

ATCHERLY

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 t.o 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 Hand 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 samé 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 eery in executing a former decree, and it is well established that he must take the risk of opening up such decree for reexamination. 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 such as that of patents issued by our Land Department is sufficient to overthrow the tradition, fortified as it is by logic and good sense.

Of course, the later decree establishing the will does not affect the case. That determined only that Kaniu left all her property to Kalakaua, but not that any particular property belonged to the inheritance. The decree overruling the demurrer of the defendant to the bill of the Kapiolani Estate also is relied upon. But as that case has not passed to a final decree, and the appellant bought the land in controversy pendente lite, it can stand no better than its vendor the party to the suit. Mellen v. Moline Iron Works, 131 U. S. 352, 370 If that case instead of this had been prosecuted to final decree there was nothing in its former action to hinder the Supreme Court from adopting thji principle now laid down, even though it thereby should overrule an interlocutory decision previously reached. King v. West Virginia, 216 U. S. 92, 100, 101. Other details were mentioned in ¿argument, but nothing more seems to us to need remark.

Decree affirmed.