22 Haw. 174 | Haw. | 1914
OPINION OP THE COURT BY
This is an interlocutory appeal allowed by the circuit judge from an order overruling a demurrer to a bill in equity for the cancellation of a lease and other relief. In some respects the bill of complaint is prolix and contains matter which is objectionable from the standpoint of good pleading, while in other respects it is lacking in definite statements on important matters, but no objection to its form has been urged in this court. The substance of its principal averments will be stated. A copy of the lease sought to be cancelled is attached as an exhibit to the bill.
Some of the averments of the bill refer to certain previous litigation between the parties, namely, a suit for the partition of the demised premises, and an action for the recovery of rent reserved in the lease. In addition to reciting certain of the proceedings had in those cases substantially the following reference was made to each, “The records of said action are hereby referred to and by reference incorporated herein, and complainant prays that the same be judicially noticed as if set out in full in this complaint,” and the husband of the complainant who has been permitted to appear for his wife seems to have understood that by such reference the exhibits, including the record in a prior equity suit between the parties, and a transcript of testimony, as well as the records proper of those cases, were incorporated in and made part of the bill of complaint. In Scott v. Pilipo, 21 Haw. 766, in the absence of objection, and the questions being simple, we overlooked a like
The bill prays that the lease be cancelled; that the respondents be enjoined from enforcing a verdict for $464 obtained against the complainant in 1902 in an action for rent brought in the circuit court of the third circuit, and from prosecuting any claim for rent accruing subsequent to September 1, 1905; that the complainant be relieved from paying further rent; that complainant have • judgment against the respondents for various sums aggregating the sum of $4343 for rents paid under the lease to March 1, 1900, the amount of the judgment recovered by the respondents in the last law action, a sum paid for taxes upon the demised premises, interest on said sums, also costs of court and attorney’s fees paid by the complainant in the previous litigation. The respondents demurred to the bill upon
It is averred in the bill in the present case that on August 21, 1894, the respondents leased to the complainant an undivided interest in the hui land of Holualoa, Hawaii, for the term of thirty- years beginning September 1, 1894, the rental being six dollars per annum per “share” for 53 “shares” until the expiration of a lease of a portion of the land then held by one Gouveia, and thereafter at the rate of fifteen dollars per share. This lease was construed in the case reported in 21 Haw. 609 where other of its main provisions are set forth. As pointed out in the opinion in that case the effect of the lease was to create a tenancy in common between the lessee and Miss
These averments are largely a repetition of those npon which the injunction against the enforcement of the judgment in the law action was sought. 21 Haw. 766. They are now repeated with other averments with the view to restraining the further prosecution of the action for rent in the circuit court of the third circuit, to the return of the amount paid in satisfaction of the judgment in the last law action, and the recovery of the amounts paid for costs of court and attorney’s fees in the previous litigation. The reasoning of the opinion of this court in the last equity case applies here. It was there held that in so far as the failure of the lessors to deliver possession to the lessee was a violation of duty on their part it would absolve the lessee from her obligation to pay rent, that the defense was available in the action at law for the recovery of the rent, and that the enforcement of the judgment would not be restrained upon a
Tbe averments to tbe effect that tbe lessors’ fraud was “reenacted” in tbe first equity suit and “renewed” in tbe second law action are inconsistent with tbe averments to tbe effect that tbe complainant did in fact enter upon tbe land, and cleared portions of it, completed tbe boundary fences, and otherwise exercised acts of possession.
Although it is averred that tbe complainant continued in tbe alleged mistaken belief that she was in possession of tbe entire tract of 71 acres, there is nothing in tbe bill to show that she was ignorant of tbe facts, and the averments in connection with the complainant’s inability to get possession of tbe particular part of tbe land which she desired and expected to possess show that she became aware of that fact soon after tbe execution of tbe lease, yet she continued to pay tbe rent for about four years. If tbe complainant ever bad any ground for claiming the return of tbe money so voluntarily paid tbe statute of limitations has long since run against tbe claim and complainant’s laches would defeat tbe claim as now made, more than fourteen years having elapsed since it first arose.
Tbe manner in which tbe land was occupied and used by tbe members of the bui, and tbe terms of tbe lease between tbe parties to this litigation, and tbe fact that Mrs. Scott was a shareholder in tbe bui in her own right as well as tbe tenant of several other shareholders gave rise to a complicated situation. Tbe condition should have been simplified by tbe partition of tbe land if that has been completed. Tbe averments of tbe bill with respect to this phase of tbe case do not make tbe matter
The order appealed from is reversed and the case is remanded to the circuit judge with instructions to sustain the demurrer.