20 Haw. 712 | Haw. | 1911
OPINION OF THE COURT BY
This is an action for summary possession instituted in .the district court of Honolulu and tried on appeal in the circuit court of the first circuit; One Heleluhe on April 12, 1906, executed a lease to the defendant of two parcels of land not adjoining each other for the term of twenty years, the lessee paying $500 in advance in full for the whole term and further agreeing to pay all taxes for which the land or any part thereof might be liable during the term. The lease contained the usual clause- authorizing the lessor upon breach on the part of the lessee of any of the covenants without notice or 'demand to enter upon the demised premises and thereby determine the lease and to remove, -forcibly if necessary, the lessee or those claiming under him. On June 6, 1906, the lessee executed to one Tee Wo a sub-lease of one of the .parcels of. land. Heleluhe conveyed both parcels to the plaintiff by deed dated July 1, 1911. The taxes which accrued since the date of the orig
At the close of the plaintiff’s case the defendant moved for a nonsuit on the ground, among others, “that the real party in interest has not been made a party .defendant.” This exception must, we think, -be sustained. The action of summary possession provided for by our statute is possessory only and does not try the title. While it does not. lie between parties other than those between whom the relation of landlord and tenant exists, it is equally essential to its maintenance that the person sued should be in the possession of the property involved. Section 2089, E. L., provides that “Whenever any lessee or tenant of any lands * * * or any person holding under such lessee or tenant, shall hold possession of such lands * * * without right, after the determination of such tenancy * * * the person entitled to such premises may be restored to the possession thereof in manner hereinafter provided”; section 2090 that “the defendant shall be summoned to answer the complaint of the plaintiff, for that the defendant is m the possession of the lands * * * and no other declaration shall be recognized,” and section 2094 that “if the defendant shall be defaulted, or if on the .trial it shall be proven to the satisfaction of the magistrate that the plaintiff is entitled to the possession of the premises, he shall have judg
The trial court found that in spite of the plaintiff’s notice of determination of the lease the defendant “had continued in possession of said land and premises and was still holding the same against the plaintiff.” We understand that by this reference was had to a constructive possession of the lessee through his sublessee, for the evidence on the point is undisputed.
The reasoning of the court in Carter v. Wing Chong Wai, supra, requires further a ruling in the case at bar, upon the evidence now before the court, that as to the other piece of land the plaintiff cannot in any event recover, for the reason that the defendant was not at the date of the institution of the action in possession and that the land was then and has been at all times since the date of the lease in the possession of one claiming adversely to the lessor. 'The remedy available under the statutory provisions here invoked being possessory only, no relief as to the second parcel can be had by the plaintiff against the defendant if the latter is out of possession.
It is also contended by the defendant that the plaintiff as grantee of the original lessor does not succeed to the lessor’s right to reenter upon breach of condition. The law has been held to the contrary in Henriques v. Paris, 10 Haw. 408, where the court said “that a conveyance of leased premises carries with it the right to possession upon a forfeiture for breach of condition.” Whether the right to which the grantee thus succeeds relates merely to breaches occurring after the date of the deed or as well to prior breaches is immaterial, for in the case at bar the breach was of a continuing nature. The taxes accruing after the date of the lease continued due to the government until paid and the failure to pay them constituted a breach of the lessee’s covenant as long as that failure continued.
Upon the denial of the motion for a nonsuit the defendant offered to introduce certain evidence which was claimed by
The objection that the exception to the' decision on the ground that it is contrary to the-law and to the evidence is too general to permit of the consideration of any of the questions argued under it is not considered, since the exception to the denial of the motion for a nonsuit upon the ground of nonjoinder is heyond doubt sufficiently sjjecific.
The exception to the refusal of a nonsuit is sustained and a new trial ordered.