25 Haw. 267 | Haw. | 1919
OPINION OP THE COURT BY
This case comes to this court upon writ of error to the circuit court of the third judicial circuit. The defendant beloAv seeks to have reviewed the judgment of the circuit court in favor of the plaintiff in an ejectment case. The land in question is known as lot No. 11 of the hui land of Holualoa and is fully described in the complaint. The case was submitted in the circuit court by stipulation of
Counsel for the plaintiff admit that the circuit judge in this conclusion was partly in error, the extent of their admission being that the conveyance of a share in a hui conveys an interest in the land and that the deed from the plaintiff to Costa conveyed to him an undivided one-sixth of the plaintiff’s interest in the hui lands, and that he thereby became a tenant in common with her and other members of the hui. The plaintiff’s further contention in
The deed in question has not been skilfully drawn but the only objection to it is the manner in which the property thereby conveyed is described. It purports to convey all of a certain one-half share in the hui land of Holualoa purchased from the plaintiff and refers to the deed from the plaintiff to the grantor in said deed. The intention of the parties to this deed as gathered from the instrument itself was undoubtedly to convey to the defendant such rights as the grantor therein had in the lands formerly held by the hui of Holualoa and this effect we think should be given to said deed. This being true the defendant de Aguiar became a tenant in common with the plaintiff to the same extent that his grantor Costa was a tenant in common. “Each tenant in common is equally entitled to the use, benefit, and possession of the common property, and may exercise acts of ownership in regard thereto, the limitation of his right being that he is bound to so exercise his rights in the property as not to interfere with the rights of his cotenant. It follows that a tenant in common of land has no right to use force and violence to exclude his cotenant from entry on the common property, even though such entry be with the purpose of doing an act that may be tortious; and neither an action at law nor in equity can ordinarily be maintained between cotenants for the exclusive possession of the common property or for the sole enjoyment of the profits thereof, even though the one in possession refuses to deliver sole possession to his cotenant, or defendant forcibly took it from plaintiff’s possession; if a tenant in common desires to have sole and exclusive possession of his interest in the common property he can only seek his remedy in partition.” 38 Cyc. 17-19.
The plaintiff’s remedy in this case was not an action in
The defendant’s assignments of error to the decision and judgment of the court are sustained and the judgment of the circuit court is reversed and the cause remanded.