23 Haw. 169 | Haw. | 1916
OPINION OF THE COURT BY
In this case the respondents seek to have reviewed a decree of a circuit judge, sitting in equity, in a suit for an accounting whereby the sum of $1061.48 was found to be due to the complainants and ordered paid to them by the respondents. The matter had been referred to a master before whom a heáring was had, and upon his report, the respondents’ objections thereto having been overruled, the decree was entered as stated.
It was shown that on the 30th day of July, 1891, one
The complainants contend that the deeds in question constituted the respondents trustees for the complainants with reference to the revenues derived from the lands, and that they were properly held jointly liable for the amount which it is contended the evidence showed the complainants to be entitled to, but which had been received and
The intention of the grantor was not clearly expressed. The clauses referring to the rents or revenues were not worded precisely the same, though we think they were intended to have the same effect. No duties were imposed on the grantees with reference to the lands under either deed. The grantees were not required to make or renew leases, nor to collect and account for any rentals. We hold that no trust was created in favor of the grantor’s children. The evidence showed that at the time the deeds were executed the lands — or portions of them — were under lease to other parties, and we think the language used in the deeds could have no other effect than to sever the rentals which were to accrue under those leases from the fee, granting them, under the one deed, to the grantor’s children, and, under the other, to the grantor’s children and the three life tenants. “The lessor may assign the rent independently of the reversion, and the assignee may recover rents to accrue in his own name.” 18 A. & E. Enc. Law (2d ed.) 286. “Although the general rule is that the rent is incident to the reversion and passes with it, yet the
The evidence tended to show that the rents of the Ka-waihapai land were collected by the respondent Kakulu, while those of the Paalaa land, in so far as they were not received by Kepane herself while she lived, or paid directly to the complainants, were collected by the respondent Keahipaka. Under these circumstances there could be no joint liability. The decree was erroneous, also, in holding the respondents liable.to account for rents which accrued under new leases made after those existing at the time of the execution of the deeds had expired or had been terminated. Again, the master seems to have charged the respondents with one-half of the rental of the Kawaihapai land, which was owned in common, whereas the deed of Kepane purported to grant only an undivided quarter thereof. Other points have suggested themselves but as they were not presented by counsel we shall not discuss them.
On behalf of the complainants it is contended that the respondents, at the hearing, admitted their liability to account in accordance with the theory of the complainants. Whether the admission went as far as contended we need not say. The matter of the construction and legal effect of the deeds in question is for the court to determine.
The decree of the circuit judge is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.