OPINION OF THE COURT BY
WHITING, J.Exceptions from the Second Circuit Court. The plaintiff brought an action of ejectment against defendant for 59-100 acre of land situate at Waihee, Maui. At the trial, on the close of plaintiff’s evidence, the defendant moved for a judgment of non-suit, 1st, on the ground that one of the deeds from which plaintiff claims title, that from Koliola to Kawahalea, is not a good and valid deed, having been made by a wife to her husband; and, 2d, because of the non-joinder of parties defendant, as it has been shown in the evidence that the land in question is now tinder lease to the Wailuku Sugar Company, and the Wailuku Sugar Company is a necessary party defendant.
The Circuit Court held that the deed from Koliola to Kawahalea was void; and granted the motion on the first ground and ordered judgment of non-suit. The plaintiff duly excepted.
Evidence was introduced to prove possession by defendant and to prove the title in plaintiff.
Pahia (w) testified: Knows the piece of land; defendant is in possession. The title is in David Hale. Heulu was the patentee of the land and when he died the property vested in Koliola his wife. Koliola afterwards took Kawahalea as her husband, but I don’t know whether they were married or not. Koliola, Heulu’s widow, then sold the property to Kawahalea, who was living with her as her husband, and Kawahalea afterwards sold the property to Hale. I am unable to say whether Koliola and Kawahalea were married. Heulu and Koliola, his wife, had no issue. On cross-examination. I was bom at Lahaina; very well acquainted with Kawahalea and pretty well acquainted with Koliola. She came to my place and I to her place. "We did not live close by one another. Q. “You living there and knowing these two persons so well, you did not know whether there was any relation between the two?” A. “No; I did not.” I had no knowledge that Heulu and Koliola had any issue. If they had had children I certainly would have known it. Only a short time after Heulu’s death, Koliola and Kawahalea came *180to live together. They were living there on the sly, but after-wards came to live openly. Q. “At that time was it not noticed that Koliola and Kawahalea were married?” A. “I heard they were married. While I was living at Lahaina with my husband, 'this Kawahalea and Koliola came to see me, and that was where the deed was made. Kauahi wrote out the deed and Kawahawai acknowledged it. I heard at that time that Koliola and Kawahalea were married. Witness testified that Heulu was dead.
The plaintiff put in evidence, 1st, the Royal Patent No. 6075 to Heulu for this piece of land dated February 1, 1867, L. C. A. 3997. 2d, deed from Koliola to Kawahalea dated June 15, 1864, to the same land. “I, Koliola, the wife and heir of Heulu, of Waihee,” sell and convey, etc., to Kawahalea. This was proved before Kahalewai then Second Circuit Court Judge, by the witnesses to the deed on March 28, 1865, Koliola having died in the meanwhile and the deed not having been duly -acknowledged. 3. Deed Kawahalea to David Hale dated June 17, 1870.
Kekehena (k) testified: I was born at Waihee and lived there ever since; know plaintiff and defendant and the land in question. Maikai is in possession but Hale has the right to it. Heulu patentee and land descended to Koliola his wife; they had no children; Heulu died long ago. * * * Kawahalea was Koliola’s husband, and Koliola sold this land to her husband, Kawahalea. At the time she sold the land to Kawahalea they were husband and wife. Do not know what time Kawahalea and Koliola were married. Q. “Can you tell whether Koliola sold this land to Kawahalea before they were married or after they were married?” A. “It looked that way.” Q. “Were they living together some time before they were married ?” A. “Yes, I know they were living together before they were mamed.” Q. “State whether or not you can say for certain whether or not they were married at all, whether you were present at the marriage or is this simply what you know from' repute of the marriage?” A. “I don’t know. I was not present at the marriage, but I heard it talked about considerably, about their being married.” Q. “Did you hear this talk of their being married after the execution of the deed, after Koliola sold the property to Kawahalea or before that?” A. “I heard they were married *181first, and afterwards I heard the land was sold by Koliola to Kawabalea.”
There was testimony showing that Hale, the plaintiff, was a paralytic and had some fourteen years ago had possession of the land, and that since then Maikai had possession and cultivated the land, and that he had let it to the Wailuku Sugar Company who planted it in cane.
The plaintiff claims that the granting of the non-suit was error:
1. -That the evidence as to marriage of Koliola and Kawahalea is conflicting and it was a question of fact for the jury-whether the deed to Kawabalea was executed before or after their marriage.
2. That even if the deed to Kawahalea was void, yet Koliola being the heir of Heulu, she was entitled to the land and if she was the wife of Kawahalea at the time of her decease and left no children or issue, then Kawahalea was entitled to her interest in the land if she had no other kindred.
Marriage is a question of fact and generally one for the jury, and if the case had been submitted to the jury and they had passed upon this fact, there being evidence of marriage, we would not feel disposed to reverse the finding of the jury, but in view of the second point presented to us it will be unnecessary to decide the question of non-suit on this ground,
Koliola died between June, 1864, ánd March 28,1865; and so far as the evidence shows, she left no kindred but her husband (assuming for this purpose that there was a marriage).
Section 1448 of the Civil Code of 1859 was then in force and provides that' “if the intestate shall have been married and leave no kindred but widow, then she shall inherit all his estate; and if the intestate be a woman and leave no kindred but her husband then he shall inherit all her estate.”
Kawahalea then, there being no other kindred of Koliola, inherited all her estate.
It is claimed by defendant that by Section 1286 of the Civil *182Code of 1859 the husband of Koliola was not entitled to any of her real estate, but that, there being no issue, the property, on her decease, descended “to her heirs.” But by Section 1448, supra, the husband in such case is the heir. See Makea v. Nalua, 4 Haw. 226.
I/yle A. Dickey for plaintiff. J. M. Kaneakua and A. G. Oorrea for defendant.On this view of the law and the evidence, which necessarily include the questions of marriage or non-marriage, the plaintiff would be entitled to go to the jury.
The second ground of the motion for non-suit is overruled. The action of ejectment, under Hawaiian statutes, is not merely a possessory action, but it tries the title as well. The Wailuku Sugar Company holds as tenant under Maikai the adverse claimant, and it is not a necessary party. The action can be maintained against Maikai without joining the Wailuku Sugar Company. Un Wong v. Kan Chu, 5 Haw. 225.
The exception is sustained. The order of non-suit is reversed and the case remanded for a new trial.