240 F. 97 | 9th Cir. | 1917
The record shows that in 1892 one John K. Sumner was the owner of a certain tract of land, situated at Koolau-poko,. Island of Oahu, Hawaii, known as the land of Mokapu, upon which there was an existing lease, which land Sumner then conveyed to one Cartwright, in trust—
“in the first place to pay the rents, issues, and profits arising therefrom or thereout, so long as the lease now in existence is in force, to me, the' said party of the first part, and upon the expiration of the present lease or other sooner determination, to pay the rents, issues, and profits arising from or out of said land to my nephew, Robert "Wyllie Davis, during the term of his natural life, or, in the discretion of said Robert Wyllie Davis, to permit him to reside upon said premises, and while so residing to use the same for grazing •or agricultural purposes; and in the second place, from and after the death of the said Robert Wyllie Davis, to convey the said premises to the heirs of the body of said Robert W. Davis'lawfully begotten, and failing such heirs of his body, then to the wife, if living, of the said Robert W. Davis, and, failing such wife, then to convey the said premises unto the heirs at law of the said Robert W. Davis, share and share alike.”
Subsequently Cartwright resigned as trustee, and one Holt was duly appointed his successor, who on the 1st day of June,v 1910, leased the land in question for 25 years to one A. V. Gear. On the 16th of the same month the latter assigned an undivided one-half of his interest in the lease to the said Robert Wyllie Davis, and thereafter assigned the other undivided one-half thereof to one Peterson, whose interest subsequently passed to the present defendant in error, based upon which ownership he commenced this suit to quiet his title thereto against the present plaintiff in error, the said Davis, alleging his ownership of the undivided one-half of the lease and the adverse claim thereto by the defendant to the suit.
The action was brought under and by virtue of that provision of the Revised Daws of Hawaii reading:
“Sec. 2085. Object of Action. Action may be brought in any of the circuit courts by any person, against another person, who claims adversely to the plaintiff an estate or interest in real property, for the purpose of determining such adverse claim.”
The answer of the defendant consisted only of a denial of each of the allegations of the complaint, and the trial resulted in a judgment —affirmed by the Supreme Court of the territory — decreeing the plaintiff “the owner and entitled to the immediate possession of an undivided one-half for a term of years, to wit, until June 1, 1935, in all of that certain piece or parcel of land situated at Koolaupoku, city and county of Honolulu, territory of Hawaii, known as the land of
The law is well settled, not only in Hawaii, but elsewhere, that trusts which are active are not within the statute of uses, and such, in our opinion, is very clearly the case here, for the trust deed in question in express terms imposes upon the trustee the active duty of paying the rents, issues, and profits of the trust property to its grantor until the then existing lease of the property should expire, necessarily importing that he should first collect them, and thereafter should collect and turn over to the grantor’s nephew, Davis, during his natural life, the rents, issues, and profits “arising from or growing out of said land,” or, in the discretion of'the said nephew, the trustee should “permit him to reside upon said premises, and while so residing to use the same for grazing or agricultural purposes.” Upon the death of the nephew,Davis, the further duty wag dry the deed imposed upon the trustee to convey the lands to the heirs of the body of the deceased nephew, if any such heirs existed, and, if not, to the wife of the said deceased nephew, if living, and, in the event she was not living, then to the heirs at law of the deceased nephew, share and share alike.
These provisions are very plain, and admit of no doubt as to their meaning. By them active duties were imposed upon the trustee from the moment of the execution of the deed; there was nothing passive about it. And therefore the Supreme Court of the territory was quite right in holding, as it did, that the statute of uses had no application to the case, assuming that such statüte was in force in the territory. Estate of Boardman, 5 Hawaii, 146, 147; Kidwell v. Godfrey, 14 Hawaii, 138, 140; Harrison v. Davis, 22 Hawaii, 51, 57. See also, Young v. Bradley, 101 U. S. 782, 787, 25 L. Ed. 1044; Perry on Trusts, p. 305; Lewis on Trusts, p. 210.
In the first place, it appears from the record that the plaintiff in error, in his sworn answer to a suit brought against him in ,the trial court
“That heretofore, and on, to wit, the 1st day of January, A. D. 1907, this respondent, Robert W. Davis, for a good and valuable consideration, did grant, bargain, sell, and convey to the said John K. Sumner an undivided one-half share or interest in and to the land and premises known as ‘Mokapu,’ and ever since said last-named day said John K. Sumner has been and now is the owner and holder thereof, subject to a defeasance of the legal title in the said John K. Sumner, and the reconveyance thereof by him to this respondent at any time on or before January 2, A. D. 1916, upon the payment to the said John IC Sumner of the sum of $2,'794.93, with interest from the 1st day of January, A. D. 1906, to the date of reconveyance, at the rate of 7 per cent, per annum, and thereafter, and on, to wit, the 2d day of January, A. D. 1906, this respondent conveyed by way of mortgage to the said John K. Sumner an undivided one-half share and interest in and to said land and premises known as ‘Mokapu,’ and said mortgage is in full force and effect, and not satisfied or discharged.”
That sworn statement of the plaintiff in error finds corroboration in the testimony of the witness A. V. Gear, appearing in the record, to whom the trustee, Holt, made the lease of the land in question, and also in the written consent to that lease made by the plaintiff in error, which consent, as indorsed upon the lease, reads as follows:
“Know all men by these presents, .that I, Robert Wyllie Davis, of Mokapu, Koolaupoko, Island of Oahu, and I, Mary Kealohanui Davis, wife of Robert Wyllie Davis, do each of us give our consent to the foregoing lease, ratifying and confirming the same on behalf of any interest we have or which may hereafter accrue to either of us in the future under the terms of the aforementioned deed of trust. Robert Wyllie Davis.”
“The right of Davis, to occupy and use the land for certain purposes was personal to Davis, and did not extend to his assigns. This was the intention of the donor, as we gather it from the deed. The object was to provide and secure for the defendant, either a home and an opportunity to make a living out of the land, or an income, as he might elect to take. A right to assign the right of occupancy would be incompatible with that object, and we must give effect to the apparent intention of the donor in this respect, even though the right to assign the income was not restricted. The defendant having waived his right to occupy the premises, the lease to. Gear was valid and operative, and its validity was not affected by the conveyances made by the defendant to Sumner.”
It may be added that it appears from the .evidence that Sumner never at any time established a residence on the land, nor did the plaintiff in error, so far as appears. There should have been added to the judgment entered by the trial court, and affirmed by the Supreme Court, to which the present writ of error was directed, immediately preceding the provision for costs, the words: Subject to all'of the terms and conditions of the said lease.
The cause is remanded, with directions to the trial court to so modify the judgment, and, as so modified, it will stand affirmed.