Dissenting Opinion of
Mr. Justice Dole.The main question raised by plaintiff’s exceptions to the findings and judgment of the Court below, is whether or not Lot Kamehameha, being a minor during the time limited by the Board of Commissioners to Quiet Land Titles for the presenting of claims, was deprived of whatever interest he had in the premises in question through the non-presentation of his claim by him or by any one for him. Wood on Limitations of Actions, Section 1, says, “ Statutes of limitation are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced.” The statute, creating the Board of Commissioners provides for such a limitation, (Sections 5 and 8) but the principles adopted by the Board of Commissioners, and confirmed by the Legislature, extended the force of the statute to the extent of declaring that the titles of all lands which shall not be presented to the Board for adjudication on or before the 14th day of February. 1848, shall vest in the Government (2 Statute Laws, 93). This feature of the law adds to its severity and takes it somewhat out of the description of a statute of limitation of actions given by Wood, and is specially important in considering the rights of a minor under this law, *444because its action, upon failure to present a claim within the time limited, is in the nature of a decree of a court adjudicating the title of real property. The only similar statutes that I know of are the Act of Congress of March 3d, 1851, for establishing a commission for the settlement of private land claims in the State of California, and other United States laws for the settlement of private land claims in territory acquired by the United States from other Governments, and the possessory law of the Island of Jamaica, hereinafter referred to. The Act of Congress of 1851, however, differs from the Hawaiian Statute establishing the Land Commission, in that the former contemplates only the adjudication of the question of title between the government and the individual, while the latter makes the decision of the Land Commission in favor of a claimant the creation of an absolute title, commutation being settled, against all the world. (Act to provide for the dissolution of the Board of Commissioners to quiet land titles, Section 3, approved July 20th, 1854.) It is evident from this, and the provisions of the “Principles” of the Land Commission (2 Statute Laws, 92) for the decision of contested claims, that the proceedings necessary to the filing and hearing of a claim before the Land Commission were in the nature of a suit at law, requiring adult intelligence and competency. This necessity is emphasized by the following words of the “ Principles ” of the Land Commission. “ Parties who thus neglect to present their claims do so in defiance of the law, and cannot complain of the effect of their own disobedience,” (2 Statute Laws, 93-94) : words which m ay apply to adults but never to infants. The principle of a rule of limitation of this kind, as set forth in the Hawaiian Statutes and elaborated in the Principles of the Land Commission, clearly is something like the following: that those who do not file their claims within the time limited either waive their rights and voluntarily give up their interests, or willfully or carelessly neglect and sacrifice them; the failure to act, in either supposition, could only, by the weight of authority, prejudice adults; infants not having the legal discretion to waive *445their property interests or to sacrifice them through negligence, the control of their persons and property having been placed in their fathers’ hands by the same act which created the Land Commission.
I have carefully examined all the authorities referred to by the plaintiff’s counsel, and the opinions of the majority of the Court upon this point, and many other cases beside, without finding sufficient reasons for changing my views set forth in the decision appealed from.
The cases upon the status of infancy as affected by statutes of limitation, referred to with approval by the plaintiff’s counsel, are: Whittingham's Case, Ewell’s Leading Cases on Infancy, etc., 89 ; Mills vs. Dennis, 3 Johns. Ch., 368. and Ewell’s Leading Cases, 234; Hall vs. Bumstead, 20 Pick., 8; Beckford vs. Wade, 17 Vesey, Jr., 87; Bryan vs. Kennett, 113 U. S., 179.
The cases referred to by the majority of the Court, in support of their conclusions upon this point, are :
Hall vs. Bumstead and Beckford vs. Wade, quoted by plaintiff’s counsel, and Demarest vs. Wynkoop, 3 Johns. Ch., 129; Bell vs. Morrison, 1 Peters, 360; Fisher vs. Harnden, Paine Cir. Ct., 61; McCluny vs. Silliman, 3 Peters, 270; Laanui vs. Puohu, 2 Hawn., 162; Kamehameha vs. Kahookano, 2 Hawn., 118.
I find, upon examination, the following particulars and features of these eases which weaken their authority, in my mind, to affect the question at issue.
The citation in Mills vs. Dennis admits that a decree in rem may be reversed for error on account of infancy of the party in interest. The same case also contains the following words: “ No laches can be imputed to an infant, and no valid decree can be awarded against him merely by default.”
A note to the same case, page 235, says no decree can be taken against a minor on his own admissions or those of his guardian ad litem, (except perhaps, on admissions evidently for the benefit of the infant.)
In Hall vs. Bumstead, the allusions to minors’ liabilities are in the nature of obiter dicta.
*446In Beckford vs. Wade, the question was whether the respondent was affected by the statute of limitations, she having been beyond the seas during the time the statute was claimed to have run. This statute was the possessory law of the Island of Jamaica (4th Geo. II.) The Court said: “It (the statute) does not bar .legal remedies, if the parties do not proceed within a certain time; but it converts a possession for seven years under a deed or will, into a positive, absolute title against all the worldand on page 90, “ It is evident that absence from Jamaica contained no real disability to sue there; and so many proprietors are at all times absent from the Island that the purpose of the Act would have been in a great degree frustrated if the claims of such absent proprietors could at any time be made without any limitations or restriction;” and on page 91, “General words in a statute must receive a general construction unless you' can find in the statute itself some ground for limiting and restraining their meaning by reasonable construction, and not by abitrary addition or retrenchment. I can easily refer to many cases in which such a construction ought to take place. One instance is furnished by the first Statute of Wills, the 32 Henry VIII., which declares that all and every person or persons may devise their lands by will; although no explanatory statute had ever passed, I should have thought there would have been no difficulty whatever in holding that this statute could not have enabled infants and persons of non-sane memory to devise by will; the obvious intention of the statute being to make a will a competent mode of conveying land, it could not be meant to make those capable of conveying by will who were not capable of conveying in any other way.”
This is analogous to the question raised in the case before the Court, in which it is a fair argument to say that the Legislature, in passing an act which would deprive persons of valuable I interests unless there should be an exercise of vigilance and diligence in the institution of proceedings requiring mature intelligence and experience, could not have intended that it I should affect minors whose status in regard to restraint is set| forth in the same act.
*447Perhaps the nearest approach to the position claimed in behalf of the plaintiff in regard to the liability of infants, is to be found in the case of Bryan vs. Kennett, in which it is laid down that the statute of Missouri of March 7th, 1835, which provides that non-residents of the State may be proceeded against in equity by publication, includes also non-resident minors, they not being excepted by the provisions of the statute; but it appears from the record of the case, that under the usual practice of the courts of chancery, the court had appointed a guardian ad litem to defend the suit for the non-resident minors ; so that their position was in fact better than if they had been adults. This case does not therefore appear to be an authority for the contention of plaintiff’s counsel.
The case of Demarest vs. Wynkoop is hardly in point upon this question. It came up under the New York Statute of Limitation of actions for possession of real estate, in which it is enacted that twenty years adverse possession will bar action unless the disability of infancy exists, in which case the infant is allowed ten years after termination of infancy. The plaintiff had failed to bring her action until the twenty years had expired, and also the ten years after the end of her minority; the question was whether or not she was entitled to twenty years after the expiration of her minority; the Court very properly decided that she was not, the statute having expressly provided for minors by a special allowance of ten years after removal of disability. The ease, therefore, cannot be said to be in point to the issue before this Court.
Chancellor Kent, in his opinion in Demarest vs. Wynkoop, referred to the ancient case of Stowell vs. Zouch, which case contains the following: “ Laches of suit or entry cannot be imputed to an infant whom God has not endowed with understanding or reason, for if he should take an action, his right and his action might be such as a writ of right and the like, which he could not prosecute nor compel the other party to answer during his non-age.” (Stowell vs. Zouch, Plowden, 364.)
*448The case of Bell vs. Morrison has only the vaguest and most general application to the question at issue in this case. The law under consideration in that case was the statute limiting the time for bringing actions in assumpsit, and the question was whether or not the defendant had taken the case out of the statute and revived the cause of action by an acknowledgment or admission of his debt.
The Statute of Limitations referred to in the case of Fisher vs. Harnden, provides fully for the rights of minors, giving them five years after coming of age to bring their action; the case, however, did not turn on the rights of minors, but on the question whether the ancestor’s title had been legally forfeited by a former judgment against him ; and it was finally rendered useless as an authority by a judgment in error in.the Supreme Court of the United States, in which the judgment of the Circuit Court was reversed and the case remanded for a new trial. Harnden vs. Fisher, 1 Wheaton, 300.)
The case of McCluny vs. Silliman was an action on the case against an officer for malfeasance; the defendant pleaded the Statute of Limitations of such actions, which plea was sustained. No issue or question of infancy was raised in the proceedings. The case, however, lays down a principle which certainly favors the defendant’s contention in the case before the Court, to wit: “ It is a well-settled principle that a statute of limitations is the law of forum, and operates upon all who submit themselves to its jurisdiction.” An infant cannot be said to have submitted himself to its jurisdiction except through the action of a guardian acting for his benefit.
In Laanui vs. Puohu, the Court uses strong language in relation to the powers of guardians previous to the enactment of the Statute of Guardians and Wards of 1851. It says “they possessed and exercised (by the common law of the Kingdom) the absolute right to dispose of the real and personal estate of their wards as might suit their own will.” This, however, cannot be interpreted to mean that they might exercise such powers to the injury of their wards; the disposition of the property by the *449guardian, disputed in that case, was a reasonable transfer of a certain part of the estate as settlement of rights of dower; it was undoubtedly a benefit to the wards’ estate to have such rights settled in the way it was done. If it was an important matter to this discussion to question the correctness of the last quotation, it might be done by reference to Section 54 of the above-mentioned Act of 1851 (Civil Code, Section 1395), which legalizes all previous sales and transfers by guardians of their ward’s property; surely if such transfers were already legal “ by the common law of the Kingdom,” the Legislature could hardly have considered it necessary to legalize them by statute; moreover, the case of Laanui vs. Puohu applies to statutory guardians, that being the capacity of the guardian whose acts were questioned in the case ; and there is nothing to show that the Court intended to include natural guardians or parents in its statements of the powers of guardians.
The case of Kamehameha vs. Kahookano at first sight has the appearance of being an authority for the right of a natural guardian to injuriously dispose of his minor child’s estate previous to the Act of 1851; but, upon examination, I find that it was the legalizing Act above referred to which led the Court to its conclusions. It says: “Any grant of right of way over the plaintiff’s land, or any conveyance whatever of any part of his estate, made by Governor Kekuanaoa during the plaintiff’s minority, and before the enactment of Section 54 of the ‘Act Regulating Guardians and Wards’ (Civil Code, Section 1395), passed on the fourth day of August, 1851, must be considered absolutely conclusive and binding upon the rights of the plaintiff.” If I am right in this view, the case has no significance whatever to the present issue, as the legalizing Act of 1851 cannot by any stress of argument be said to effectuate all previous non-performance, neglect or mismanagement of guardians as the non-performance, neglect or mismanagement of their infant wards.
Whittingham’s Case does not appear to have any direct application to the question at issue.
*450I have found, on the other hand, cases which support the doctrines that a minor may not be prejudiced in his rights of property in any proceedings in which he is not represented, and that a guardian may not injuriously affect his minor ward’s interests by admissions or negligence.
It is not possible “to preclude the minor heirs from asserting their rights to property received from their father, by reason of any negligence of their guardian. * * * There is no circumstance here upon which an estoppel against the plaintiffs can be raised. To create an estoppel against them there must have been some act or declaration indicating an authorization of the use of their names, by which the company was misled, or a subsequent approval of their use by acceptance of the moneys received with the knowledge of the transfer. No act or declaration is mentioned, either of the guardian or her children, which tends in the slightest degree to show that any assent was given to the use of their names.” (Telegraph Company vs. Davenport, 97 U. S., 373.)
“ Where infants are deprived of apparent rights by a decree of Court, they have the power, in a new action, to attack it, and this too whether or not they were made parties to the first suit.” (Joyce vs. Joyce, 5 Cal., 161, syllabus, and Bank of United States vs. Ritchie, 8 Pet., 128.)
In Joyce vs. Joyce, the guardian ad litem fraudulently confessed a bill in equity against the rights of the minor defendants.
In the case of Valier et al., plaintiffs in error, vs. Hart et al., defendants in error (11 Mass., 299), the error assigned was the minority of one of the original defendants. The defendants in error moved to quash the writ on the ground that an appeal lay from the Justice’s judgment to the Court of Common Pleas, and that where an appeal lies, error does not lie, and cited Savage in error vs. Gulliver (4 Mass., 171). The Court said: “ The very minority of the party, which is assigned for error in this case, and which is not denied, disabled him from appealing. The decision in the case cited in support of the motion is very guarded, limiting it to cases where the party may appeal, and *451the Court explicitly state their opinion that the statute, in giving an appeal, has not taken away the remedy by error in cases where the aggrieved party, without any laches on his part, cannot avail himself of an appeal, which it is very clear an infant cannot.”
If an infant cannot avail himself of an appeal, much less can he institute original proceedings, nor can he force his guardian to do so.
“ Infants cannot be in default in the sense that their rights may be adjudged away without affirmatively showing that it is equitable and just. The record must contain enough in such cases to sustain the decree, whether guardian ad litem answers or not.” (Materson vs. Wiswould, 18 Ill., 49.)
In the case of Cost vs. Rose, 17 Ill., 275, a default was taken as to all of the defendants, some of whom were infants, and the Court upon writ of error say, “they being infants, no default should have been taken against them.”
“ A judgment rendered against an infant for whom no guardian ad litem has been appointed, is liable to be reversed by writ of error.” Crockett vs. Drew, 5 Gray, 399, and Wells vs. Wells, 6 Ind., 447.)
“In this (the instruction that the plaintiff’s claim was barred by the statute) we think the Court erred, because the claim of the plaintiff is not embraced by that statute. It does not and never was intended that it should apply to claims for the recovery of which the party entitled thereto could not maintain an action. The statute does not extinguish the debt or claim; it only forms a bar to the remedy of the party to recover it by action; but it is perfectly clear that if the right to maintain an action for it were never vested in him, the statute can be no bar to it, because it would be contrary to reason to hold that the statute operated upon and took that away which never existed.” (Leasure vs. Mahoning Township, 8 Watts, 55, and Angel on Lim., 59.)
In relation to the contention that no disability not mentioned in the Statute of Limitations may be considered, I find a con*452trary doctrine held by Hopkins vs. Bell, 3 Cranch, 454; Hanger vs. Abbott, 6 Wall., 532 ; and Braun vs. Sauerwein, 10 Wall., 222, besides several similar cases in the State Courts. The Court say in Braun vs. Sauerwein; “ the creditor has been disabled to sue by a superior power, without any default of his own, * * * none of the reasons which induced the enactment of the statutes apply to his case; that unless the statutes cease to run during the continuance of the supervening disability, he is deprived of a portion of the time within which the law contemplated he might sue. It seems, therefore, to be established that the running of a statute of limitations may be suspended by causes not mentioned in the statute itself.” These words without modification might have referred to the status of an infant so far as intrinsic evidence goes ; as a matter of fact, they referred to the case of a creditor who was prevented from suing by the American Civil War.
The case of Vance vs. Vance, 108 U. S., 521, and Pryor vs. Ryburn, 16 Ark., 671, have some appearance of being in opposition to my views on this point; but in the former it is shown that the minor is reasonably protected by the statute which makes it the duty of an officer of the Court to act for him. The case of Pryor vs. Ryburn I have not been able to find except in digests.
In view of all the foregoing cases, I find my original opinion upon this point rather strengthened than otherwise. Not a single case has been referred to in which an infant’s rights have been diposed of as it is proposed to do in this case ; it is reasonable to suggest that there are no such cases on record. I find no authority to support the view that Hawaiian guardians or parents, before the Act of 1851, might injuriously affect the ward’s estates, except as injurious transfers might have been legalized by that Act; and I think that under its legalizing provisions I may safely dissent from the argument that “if the law was that all acts of a guardian or a father respecting the disposition of an infant’s property bound the infant, his failure to present a claim for land is an act, the consequences of which would be equally binding upon the infant.”
*453But it is suggested that even if Lot Kamehameha was not bound by the limitations of the statute during his minority, “ it was his duty to assert his claim to this land within a reasonable time after his coming to full age.” It must be borne in mind that the time in which the Land Commission had authority to receive claims had expired before Lot Kamehameha became of age. What use, then, would it have been for him to present his claim when the Land Commission had ceased to exist as a committee for receiving claims ? No court would have issued a mandamus to compel the Land Commission to do what was not their duty, and what they had no power to do, unless they should be thereto duly authorized by the Legislature; and it is too much to demand that, under the circumstances, it was necessary that Lot Kamehameha should set in motion the uncertain and unwieldly machinery of legislation in order to protect his interest. He asserted his interest in the land so far as was in his power by continuing to occupy the premises.
I do not think that it is claimed that his interest in the premises has ripened into a perfect title, but there has been no valid forfeiture of his interest whereby the Government has acquired a right of possession. He and his representatives are entitled to their “ day in court,” that is, their opportunity to present and prove their claim before the Land Commission, or a similarly constituted authority; they have never had such opportunity.
Justice and equity and the prevailing sentiment of legal decisions, under common law principles through a long period, alike forbid the destruction or injury of the rights or estate of infants, except through legal proceedings in which, beyond any doubt, they are fully and faithfully represented.
Not finding in this case as presented any evidence to show that the natural guardian of Lot Kamehameha took any action whatever in the way of proving his son’s claim to the premises in question, it is fair to presume that he was guilty of laches, which conduct cannot prejudice his minor child.
*454From the foregoing authorities and reasoning, I am compelled to dissent from the opinions of the majority of the Court, and to hold as before, that the plaintiff has not shown a right of possession to the disputed premises.
N.B. — An Ili is a subdivision of land. Mahele means division ; in this connection it means the great division of lands made in 1848 between the Kings, chiefs and people.