19 Haw. 65 | Haw. | 1908
This is an appeal by plaintiff on points of law from a judgment ag'ainst him in a summary possession action instituted in the district court of Ewa to forfeit a lease of certain lands in Waianae and to recover possession of said lands, the ground of forfeiture being a breach of covenant to p'ay the taxes. The lease was made on November 22, 1862, by W. A. Aldrich, executor of the will of N. W. Holt, to John D. Holt, for the life of the lessee. The complaint alleges that the taxes on an undivided two-thirds of the lands were assessed to C. A. Long, administrator .de bonis non with the will annexed of the estate of N. W. Holt, that the defendants who are in possession of the lands and who hold the same by virtue of divers mesne conveyances from the lessee have not paid the taxes as agreed in the lease, and that plaintiff is entitled to an undivided two-thirds interest of the lessor in the lands. The demurrers to the complaint by the various defendants on the ground that the assessment of taxes was not a legal or valid one were sustained, the other grounds, which were not passed on, being that no cause of action is set forth, that the conveyances to defendants from the lessee are not set out or attached to the complaint, and that the complaint is vague, uncertain and unintelligible.
The only point of law relied on by plaintiff being that it was erroneous to sustain the demurrers, the judgment will have to be affirmed if any of the grounds of the demurrers are well taken, that is, if the conclusion of the district magistrate was correct it must be affirmed irrespective of his reasons.
This is a proceeding under a statute which must be strictly complied with and pursued only so far as permitted by the statute. Carter v. Wing Chong Wai Co., 12 Haw. 291, 294.
Under our statute (Sec. 2089 E. L.) it is provided that “whenever any lessee * * * of any lands * * * shall hold possession of such lands * * * without right
From'all that appears in the complaint defendants may be rightfully in possession of the lands by virtue of holding the other undivided third interest of the lessor therein, and consequently even if plaintiff got judgment they could not be removed from the premises and plaintiff put into the full possession thereof as provided in the statute. This statute, which as pointed out must be strictly followed, does not contemplate an action in a case like the present unless at least it is alleged that the defendants are not in possession of the lands by virtue of the ownership of the remaining one-third interest of the lessor. As such an allegation has not been made, it follows that the demurrers will have to be sustained on the ground that no cause of action is set forth.
In King v. Dickerman, 11 Gray 480, an action of summary possession was brought by a landlord owning nine-tenths of certain premises against his tenant who it appeared from the evidence was also entitled to the possession of the other one-tenth. The court held that the action could not he maintained, saying, “The difficulty is that in such case the plaintiff is not entitled to possession of the demised premises to the exclusion of the defendant. Both parties have a legal right to the possession of the estate and of every part and parcel thereof, according to their respective titles. But this process is strictly a possessory one. The entire fruit of the judgment is a mere writ of possession, by which the officer is required to eject the tenant. It is difficult to see how such a process can legally be
The judgment appealed from is affirmed.