12 Haw. 291 | Haw. | 1899
OPINION OF THE COURT BY
This is a summary proceeding (under Chapter 106 of the Civil Laws) by a landlord to recover possession of the leased premises upon an alleged determination of the tenancy by reason of forfeiture for breach of certain covenants and conditions of the lease on the part of the tenants. The proceedings were brought in the District Court of Koolauloa, Oahu, where judgment was rendered for the defendants, thence taken on appeal to the Circuit Court, where a verdict was rendered for the plaintiff, and is brought here on a number of exceptions by tbe defendants.
The plaintiff leased tbe premises in question, a rice plantation, on July 1, 1897, for a term of fourteen years at an annual rental of $1000, payable semi-annually in advance, to Kwong Tai Wai and Company, who on tbe third of the following September assigned the lease to the defendants Wing Chong Wai Company, who in turn on the same day mortgaged the same to the defendants Sing Chong & Company.
The causes of forfeiture relied on are breaches of covenants (1) to keep the premises fenced, (2) to allow the lessor.an unrestricted right of way twelve feet wide through the premises and (3) that the lessor should have the unrestricted right of a two-inch flow of water from the artesian well on the premises. The lease contained the usual provision that upon the breach of any of the covenants on the part of the lessees, their executors, administrators or assigns, the lessor, her executors, administrators or
The lessor’s husband, as her agent, last accepted rent on July .1, 1898, in advance for the ensuing half year and on the 9th of the following November entered upon the premises and gave written notice of the determination of the lease and demanded possession for breach of the covenants mentioned. This action was begun on the 5th of December following.
At the close of the plaintiff’s case, the defendants moved to dismiss the action as to Sing Chong & Co. on the ground of misjoinder for the reason that they were not shown to be in possession or to be tenants of the plaintiff. This motion was overruled and defendants excepted. It is contended on behalf of the plaintiff that inasmuch as the lease was assigned to Sing Chong & Co., although as security only, they must be held to have the legal title and to be liable as assignees, whether in possession or not, upon all the covenants that run with the land. Hop Sing Co. v. Kam On, 7 Haw. 144; Cartwright v. Widemann, 9 Haw. 693. Let us assume that such is the law. It does not necessarily follow that a summary proceeding of this kind could properly be brought against them if they were not in possession. The lessees themselves, whether they had mortgaged their lease or not, would likewise be liable upon their covenants but it would not necessarily follow that summary proceedings could properly be brought against even them if they were not in possession.
The statute seems to contemplate not only that the relation ■of landlord and tenant should exist but also that the tenant should be in possession. The proceedings are wholly statutory and may be pursued only so far as permitted by the statute. Section 16Y9 of the statute permits the landlord to proceed summarily only “whenever any lessee or tenant * * * shall hold possession * * * without right,” &c., and Section 1680 requires it to .be alleged in the complaint, “that the defendant is in the possession * * * of the lands * * *, which he holds unlawfully,” &c., “and no other declaration shall be recognized.” See also 12 Enc. Pl. & Pr. 880 and note 2. No doubt the mort
But may not the mortgagees be joined as landlords with their mortgagors as tenants? In jurisdictions in which the action of ejectment may try the title to the land as well as the right of possession, landlords may be joined as co-defendants with their tenants. Un Wong v. Kan Chu, 5 Haw. 225; Hale v. Maikai, 12 Haw. 178; and mortgagees and mortgagors have been regarded as holding the relation of landlord and tenant for such purposes. Marvin v. Denison, 20 Vt. 662. But where ejectment is a possessory action only and does not try the title, landlords cannot properly be joined as co-defendants with their tenants, and if they are so joined a nonsuit may be granted as to them. Demick v. Deringer, 32 Cal. 448. Summary proceedings' under our statute are, as we have seen, merely possessory and would therefore seem to be analogous to those actions of ejectment which are merely possessory, in which landlords cannot properly be joined with their tenants. See Oahu L. & B. Co. v. Ah Yok, 11 Haw. 418; Kualana v. Yong Young, supra. Again, under the English statute, 11 Geo. II. c. 19, and similar statutes in many of the United States, landlords may be admitted at their option to defend actions of ejectment brought against their tenants, although the action must be brought against the tenants alone in the first instance, and it is held that mortgagees and mortgagors are landlords and tenants for such purposes. 7 Enc. Pl. & Pr. 307, 312. But we have no such statute and these proceedings were not brought against the tenants alone in the first instance, nor have the mortgagees sought to be admitted to defend.
It is therefore at least very doubtful if mortgagees not in possession may be joined as co-defendants with the mortgagors, the lessees, in proceedings of this character.
Defendants moved also at the close of the plaintiff’s case for
Exceptions were taken to the court’s refusal to give several requested instructions to the effect that the acceptance of the rent on July 1,1898, operated as a waiver as to all known breaches up to that time and also thereafter in so far as no change occurred thereafter. The could gave the first part of this instruction but refused to give the latter part. It is contended that the breaches, if any, occurred before the acceptance of the rent on July 1, 1898, and that thereafter no change took place, the fences, for instance, being merely allowed to remain in the state of unrepair in which they were before that date, and the restriction of the right of way being merely allowed to continue. But the covenants in question are continuing covenants, and where there are
The third of the covenants for the breach of which these proceedings were brought was that the lessor should “have the unrestricted right of a two-inch flow of water,” &c. The plaintiff contended that the defendants shut off the water. The court instructed the jury in effect that the defendants would be liable only in case the water was shut off by them or their servants or by their permission or sufferance and would not be liable if it was shut off by strangers without the knowledge, connivance, encouragement or consent of the defendants, and as there was no evidence as to who shut off the water, if it was shut off at all, the plaintiff does not now rely upon a breach of this covenant. This leaves the covenants as to fences and right of way to be considered.
Defendants contend that the plaintiff gave them time in which to repair the fences and road and that such repairs were made, after the plaintiff entered. This contention is made under exceptions to the refusal of the court to give certain requested instructions to the effect that if the plaintiff gave such time or led the defendants to believe so and such repairs were made she could not insist on a forfeiture, and an exception to the verdict as contrary to the law and the evidence. But the court did charge substantially as requested on this point and the evidence was such as to support a finding that the plaintiff did not give such time. The mere fact that the plaintiff waited several weeks after entry before instituting proceedings to enforce the forfeiture, even though the defendants meanwhile made such repairs with plaintiff’s knowledge, would not amount to a waiver or an estoppel as matter of law. The plaintiff had already elected to insist on a forfeiture and had so notified the defendants and had demanded possession. The tenancy thereupon ended. These proceedings were after-wards instituted merely to recover the possession which the
The covenant in regard to fences was that the lessees “will fence and keep fenced all lands included in this lease so as to prevent the passage of stock, and be liable for all damage resulting from the passage of stock from their said inclosure into the lands” of the lessor, &c. Defendants contend that the only penalty for a breach of this covenant is shown by the covenant itself to be the payment of the damages resulting from the passage of stock, and that the penalty of forfeiture does not apply to this covenant. But the lease clearly provides for a forfeiture upon a breach of “any of the covenants,” &c., of which this certainly is one; and there is nothing to indicate that the payment of damages was intended to be the only penalty. We find no exception under which this question can be raised.
It is contended further, that the only proof that there could be of the breach of this covenant is that stock did pass, and that there was no such proof. There was testimony that the fences were completely gone in some places and out of repair in other places, but it is contended that there is no testimony that stock actually passed through. This question of law is not raised by the exceptions. The court instructed the jury on the theory that the covenant called for fences that would prevent the passage of stock, not fences that did prevent their passage, and no exception was taken. On the contrary defendants themselves asked the court to charge that “any fence that you are satisfied would prevent the trespass of stock will comply with the covenant as to fences.” In our opinion the instruction was correct.
The covenant as to right of way is that the lessor “shall have an unrestricted right of way twelve feet wide through the demised premises from the mauka land along the Hauula boundary to the extreme Northeast corner of the rice field; thence in an Easterly direction to the threshing floor and around the said threshing floor, and thence in a Northeasterly direction along old Kuanu to
Exceptions were taken to the instructions that the Ilauula boundary referred to in the covenant relating to the right of way must be taken for the purposes of this case to lie along the line of the stone wall referred to by the witnesses, and that the plaintiff is entitled under the lease to an unrestricted right of way
The premises are described in the lease as “all that portion of the land of Makao aforesaid, now occupied by the party of the second part, the same being bounded by Kapaka upon the one side, and enclosed by fence upon the other sides, and of which a plat is hereto annexed as ‘Exhibit A’ for full description in lieu of field notes, metes and bounds.” The plat referred to shows that the demised premises were bounded on the Hauula side by the stone wall in question. The most that defendants could contend is that, since the covenant provides for a right of way twelve feet Avide along the Hauula boundary, and since there were seven feet between the rice patch and the stone wall, then if the Hau
The question of motive was argued to some extent. Defendants contend that the breaches were at most merely technical, that they occurred through inadvertence rather than wilfulness or maliciousness and that the plaintiff is attempting to take advantage of the breaches, not because she cares about them, but in order that she may wrest from the defendants a property which they have improved and made valuable. On the other hand the plaintiff contends that she and her agent repeatedly requested the defendants to remedy the breaches and gave them ample time in which to do so but that they always replied “by and by” and that this continued for over a year until patience ceased to be a virtue, and that no disposition to make the repairs was manifested by the defendants until they were given notice of the termination of their lease, when they suddenly became active. The trial Judge allowed the defendants to go into the question of the plaintiff’s motive to some extent as bearing upon the question of credibility. So far as the law is concerned, if the plaintiff has made out a case on the facts, it is immaterial what her motive was. So far as the facts are concerned, they were for the jury to pass upon, and they were sufficient to support the verdict in
The exception to the instruction that nine out of twelve jurors might render a verdict and to the verdict so rendered must be overruled in accordance with the former decisions of this court.
The exceptions are overruled.