22 Haw. 252 | Haw. | 1914
This is an appeal from an interlocutory order made by the third judge of the first circuit sitting in chambers in a partition suit. The suit has been pending for many years. One of the plaintiffs presented‘a supplemental bill, and a written motion for an order requiring one, O. K. Ai, to appear and show cause why he should not be made a party defendant to the suit. The order was made, and in response thereto, said Ai appeared specially and moved that the order be vacated on the ground that under the showing made in the supplemental bill he is not a proper or necessary party, and the circuit judge had no jurisdiction to make the order to show cause. This motion was sustained and the order to show cause vacated, from which this appeal was allowed by the circuit judge.
On behalf of the plaintiffs it is contended that the supplemental bill states facts showing that said Ai as claimant and holder of a leasehold interest in undivided shares of the land sought to be partitioned is a necessary and proper party. If this contention is true, said Ai is interested in the subject matter of the action, and is a proper party to the action and should be brought in. (R. L. Sec. 1738; Pond v. Montgomery, ante page 241; Johnson v. Aleshire, 114 N. Y. Supp. 398; Thruston v. Minke, 32 Md. 571; Freeman on Cotenancy and Partition §480.) On behalf of said Ai it is contended that the allegations of the supplemental bill show that the only object for bringing said Ai in as a party defendant is to obtain a money judgment against him. These contentions, and the order setting aside the order to show cause, must be decided upon the allegations of the supplemental bill, which is inartificially drawn. We quote those portions of the supplemental bill necessary to a determination of the questions before us. “Complainant alleges, that on date of February 21, 1896, O. Akau, who was one of the original parties defendant to this suit, made a lease of 22 acres, more or less, for a term of twenty years, in that part of the undivided lands within the belt makai of and
It is thus seen that the plaintiff alleges that since 1897 Llarano, We Tai Yuen, S. Yamaguchi and O. Taikao have attorned in payment of rent for the use of said premises to said O. K. Ai, and that said Ai has attorned as lessor to said Harano, We Tai Yuen, S. Yamaguchi and O. Taikao. Just what was in the mind of the pleader in using the word attorn, especially in the last instance, is somewhat in doubt. Under the feudal laws of England the lord could not alienate his estate without the consent of his tenant, and in the latter case the lord, his grantee and the tenant appeared before the paries curiae or court baron, and signified the turning over from the former lord to the new one. (Wash.. R. Prop. 6th ed. Secs. 69, 83.) A tenant attorns when he, during the term of his lease, takes a lease from a person other than his landlord. The signification of the word in modern legal usage is: To transfer or turn over to another; to assign to. some particular use or service. (Bouvier’s Law Diet.; Eichelberger v. Sifford, 27 Md. 320, 330.) If A attorns to B, and B attorns back to A, each would seem to he in the same position as he was in before there was any attornment. Whether Ai has collected rents as owner of a leasehold under original cotenants or members of the Hui, or merely for some other purpose, or under a claim adverse to all, or has collected such rents without claim of right, is not sufficiently shown in the supplemental bill. In order to show that he is a proper party to the suit something must be shown further than the mere collection of rent.. While a lessee of one of the owners of undivided lands is a proper party to a suit for partition, the rule does not extend to a stranger who wrongfully collects rents for a portion of the lands and against whom the owners have their remedy at law.
The- order appealed from is affirmed, with costs to the appellee.