*455OPINION OP
PERRY, J.,CONCURRING IN PART AND DISSENTING IN PART.
The material facts in this case are precisely the same as those before this court and before the supreme court of the United States in the Lewers & Cooke case reported in 18 Haw. 625, 19 Haw. 47 and 222 U. S. 285. The only fact contended by the appellee to be before this court in the case at bar and not to have been before the supreme court of the United States in the Lewers & Goohe case is that Kinimaka was the guardian of Kalakaua at the time that the claim for the land was presented to the Land Commission. In addition to the fact noted in the majority opinion that the guardianship was found as a fact by the court of land registration, that that finding was before this court in the Lewers & Goohe case and that the decree in that case was affirmed on appeal, the answer to the contention is that this court deemed the fact of the alleged fraud, and therefore of the guardianship immaterial and that the supreme court of the United States considered the case as though the fact of the guardianship was properly before it. “It is immaterial whether Kinimaka had received the land from Liliha or from Kaniu, and whether, if from Kaniu, he was guilty of actual fraud in procuring his land commission award or whether he acted under the honest belief that the disapproval of Kaniu’s will by the King and the verbal giving of the lands to him was conclusive.” 18 Haw. 625, 638, 639. “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.” 222 U. S. 285, 294. To grant the relief prayed for in this suit would be to attempt to disregard and render ineffectual the decision of the supreme court of the United States in the Lewers & Cooke *456case. I concur in the view that that decision is binding on this court in the case at bar and that, following it, the decree appealed from should be reversed and a decree entered dismissing the bill of complaint.
This sufficiently disposes of the case, but since the majority has expressed its view to the effect that the decisions of this court and of the supreme court of the United States are incorrect, I feel impelled to state, briefly, my views on the subject.
In my opinion the decisions referred to were correct in regarding the equity decree of 1858 as an attack upon the land commission award to Kinimaka and in declining to countenance the attack. In form, perhaps, it was not; but in substance and in effect, it was. The appellee1 invokes the general rule relating to the jurisdiction in equity concerning judgments obtained by fraud. “The suit in chancery does not draw in question the judgment and proceedings at law or claim a right to revise them. It sets up an equity independent of the judgment which admits the validity of that judgment, but suggests reasons why the party who has obtained it ought not to avail himself of it. It proposes to try a question entirely new, which has not been and could not be litigated at law.” Parker v. Circuit Court, 12 Wheat. 562, 564; and similar cases. That rule, however, can have no application to the case at bar or the suit in equity of 1858. If applied, it violates the spirit of the gift of Kamehameha III when he relinquished to the people his title to a large part of the royal domain and the spirit and the letter of the laws enacted to effectuate that gift. I cannot do better at this point than to quote from a familiar statement of the history of land titles in Hawaii. “There is a time in the history of every original nation not formed by colonization, when as it emerges from barbarism into civilization, titles to land may be said to have a beginning by positive institution of the people of such nation. Previous to the advent of Christianity to this country, in the early part of this century, Kamehameha *457I., as King by right of conquest, was the lord paramount and owner of all the land of this Kingdom. This right continued in his successors until the reign- of Kamehameha III. Under this King a government, under a constitution and laws, had its birth, superseding a government of the arbitrary will of the King. Claims of one character and another to the possession of land had grown- up, but there was no certainty about them, and all was confusion; and finally, after years of discussion had between the King, the chiefs, and their foreign councillors, the plan of a Board of Commissioners to Quiet Land Titles was evolved, and finally established by law, for the purpose pf settling these claims and affording an opportunity to all persons to procure valid paper titles ” emanating from the Government representing the sovereignty, the source of all title to land in this Kingdom, to the land which they claimed. As a part of this scheme Kamehameha III., with unexampled magnanimity, relinquished his claim of ownership as sovereign to over two-thirds of the entire territory of the Kingdom, in order that the same might be awarded to the chiefs and common people by the Land Commission. The Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authorize an- award therefor to the claimant. This we must consider as the foundation of all titles to land in this Kingdom, except such as come from the King, to any part of his reserved lands, and excepting also the lists of Government and Fort lands reserved.” Thurston v. Bishop, 7 Haw. 421, 428. Immediately prior, then, to the creation of the Land Commission, while claims of one character and another to the possession of land had grown up, there was no certainty about them. All was confusion. The constitution of October 8, 1840, sometimes referred to as the constitution of 1839 (see Thurston’s Fundamental Law of Hawaii, p. 1), did, indeed, provide that “protection is hereby insured to the persons of all the people, together with their lands, their building lots, and *458all their property, while they conform to the laws of the kingdom, and nothing whatever shall be taken from any individual except by express provision of the laws”; but it also declared; “Kamehameha I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head,, and had the management of the landed property. Wherefore, there was not formerly, and is not now any person who could or can convey away the smallest portion of land without the consent of the one who had, or has the direction of the kingdom.” And in 1843 or 1844 we find the King disapproving of the will of Kanin made subsequent to the date of the constitution. All was still chaos. It was for this very reason that the King, adopting an enlightened and progressive policy, made his gift. To me it seems impossible, under these circumstances, to regard Kaniu or upon her death her donee, Kalakaua, as holding even the beneficial or equitable ownership of the land as distinguished from the legal title. To sustain appellee’s contention and uphold the decree of 1858 requires as an essential prerequisite the finding or the assumption that the equitable ownership at least, as that term is understood at the present day, was in Kaniu and from her passed to Kalakaua. Upon no other theory could Kinimaka or his heirs be declared to be trustees for Kalakaua.
The establishment of the Land Commission was a part of the scheme for the accomplishment of Kamehameha’s purpose to relinquish his claims to the land and to vest titles in individuals. It was given power to hear and,finally determine, subject only to appeal to the supreme court, all claims to land and to make awards therefor. In its creation it was recognized hy the King and all others concerned that “the Hawaiian rulers have learned by experience, that regard must be had to the immutable law of property, in things real, as lands, and in things personal, as chattels; that the well being of their country must essentially *459depend upon the proper development of their internal resources, of which land is the principal; and that in order to its proper cultivation and improvement, the holder must have some stake in it more solid than the bare permission to evolve his daily bread from an article, to which he and his children can lay no intrinsic claim. They perceive by contact with foreign nations, that such is their uniform practice, and that the rules of right under that practice are contended for, understood and likely to be applied, in regard to the lands otherwise held at their hands by a tenancy incomprehensible to the foreigner. They are desirous to conform themselves in the main to such a civilized state of things, now that they have come to be a nation in the understanding of older and more enlightened governments.” Principles of the Land Commission, R. L., p. 1171. The Board was. given very broad powers. “A wide latitude is thus left to the Commissioners, who must, in. passing upon the merits of each claim, first elicit from creditable witnesses, the fact or history of each; and thus assort or reconcile those facts to the provisions of the civil code, whenever there is a principle in past legislation applicable to the point under consideration; but when no such principle exists, they may judicially declare one, in accordance with ancient usage and not at conflict, with any existing law, nor at variance with the facts, and altogether equitable and liberal.” Ib., 1175. It had power, of course to refuse awards as well as to make awards. It considered equitable claims as well as legal (Ib., pp. 1169, 1175) as far as those terms could be applied to the kind of titles theretofore existing. It had power to make an award to one in trust for another. For illustrations of the exercise of that power see Kane v. Perry, 3 Haw. 663; and Kalakaua v. Keaweamahi, 4 Haw. 577. Claims of infants were presented by their parents or guardians and the statute prescribing a time limit for the presentation of claims made no exception in favor of infants. Minors were bound by the neglect of their guardians to present their claims. Thurston v. Bishop, 7 Haw. 421. So, also, *460were all persons bound by an award, unappealed from, even though it was procured by false testimony. Kukiiahu v. Gill, 1 Haw. 54.
In view of the uncertain tenures of land prior to the creation of the Land Commission, the King’s gift and its terms, the provisions of the law intended for its accomplishment and the subsequent judicial declarations concerning the finality of the determinations of the Land Commission, the equitable jurisdiction over the fruits of a judgment obtained by fraud cannot be successfully invoked. Relief was sought in 1858 and is sought now, not by reason of any facts occurring after the date of the award but by reason of facts all of which existed prior to the. proceedings before the Land Commission. There was no new question before the equity court in 1858, and there is none now, which could not have been litigated before the Land Commission. If Kinimaka in a spirit of fairness, at the time of the presentation of his own claim to the land, whether that claim was through Liliha or through Kaniu, made known to the Commission the attempted devise by Kaniu to Kalakaua or if the latter fact otherwise appeared in evidence at the hearing (the failure of the Commission to record evidence to sustain an award does not vitiate it, Ealalcaua v. Keaweamahi, supra), it was within the province of the Commission (a) to refuse to award the land to Kinimaka, or (b) to award it to Kinimaka in trust for Kalakaua, or (c) to award it to Kalakaua, or (d) to award it to Kinimaka. If it decided, whether correctly or incorreétly, either that Liliha had a stronger claim than Kaniu or that Liliha’s claim was unfounded and that the King’s disapproval of Kanin’s oral will was effective and his own subsequent gift to Kinimaka good, it was beyond the power of the equity court, directly or indirectly, to set aside that decision or render it nugatory. If, on the other hand, the fact of Kaniu’s attempted devise to Kalakaua was not made known to the Commission, it was, as to.Kalakaua, an instance of a minor bound by the failure of his guardian to present his *461claim, whether the failure was due to mere neglect or to fraud. Thurston v. Bishop and Kukiiahu v. Gill, supra; and other cases'cited in 18 Haw. 625. Cases of ordinary guardians, whose wards have, beyond controversy, the entire beneficial ownership of the land, and of persons entrusted by another with money to purchase land,, are not parallel. Neither Kaniu nor Kalalcaua had any unassailable title, legal or equitable; they had at most a mere right to apply to the Land Commissibn for a title. Thurston v. Bishop, 7 Haw. 421, 433. In the absence of an appeal -to the supreme court the Commission’s refusal or failure to award the land to them was conclusive. It is not as though a title existed, to be protected in equity. To the very existence of a title a land commission award was necessary.
The Hawaiian cases referred to in the opinion in the Lowers & Cooke case to my mind support and lead irresistibly to the conclusion there reached, that the decree of 1858 was an indirect attack on the award, that the award of the Land Commission is a final adjudication of all claims to the land awarded existing prior to December 10, 1845, that such awards are, with the exceptions mentioned in Thurston v. Bishop, supra, the foundation of all titles to land in these Islands and conclusive against every form of attack save the appeal provided by law, — a tradition “fortified by logic and good sense.” 222 U. S. 285, 294, 295. In 18 Haw. 625, 638, it was correctly said that if the decree of 1858 shall be now enforced, “it will be the first time in the judicial history of Hawaii that a Land Commission award shall have been set aside upon any pretext whatever.” Announcement should not now be made judicially that an awardee may, in spite of the award, possibly have been the holder of the bare legal title in trust for another and that he or his successors may be decreed in equity to convey to that other.