24 Haw. 277 | Haw. | 1918
OPINION OF THE COURT BY
In a partition suit one of the plaintiffs presented a supplemental petition asking that the respondent C. K. Ai be made a party defendant and held to account for rents col
It is insisted upon behalf of the respondent that the evidence fails to show that he has succeeded to or acquired any interest in the common property other than a leasehold interest under a sub-lease, and, while admitting that he has collected the amount of rent named, $1210, he alleges that he did so as a subtenant, for which he is not accountable to the tenants in common, and that he is not a cotenant Avith the other parties who must look to his lessors and. not to him. This contention requires an examination of the pleadings and the evidence. The circuit judge made the following findings:
“Decision.
“Plaintiff’s contention briefly stated is that C. K. Ai Avas, by reason of facts recited in the complaint, one of many co-tenants of a portion of certain hui lands at Holualoa, N. Kona, Hawaii; that said C. K. Ai leased said land for a term of years, collected and appropriated all of the rents to his own use, to the amount of $1,200.00.
“Plaintiff seeks to have defendant C. K. Ai account to the other co-tenants for the rents so collected and appropriated by him.
“Defendant admits the collection of rents to the amounts claimed, but denies that he was a co-tenant and therefore not required to account.
“From the admissions contained in defendant’s answer, and from the evidence adduced at the hearing, I find that on March 29,1895, Kamale 2 a member of the Hui of Holualoa, holding one share, sold and conveyed to Akau a portion of the said hui lands, and that on August 23, 1894, Kamale 1, also a member of said Hui of Holualoa, holding tAvo shares, leased to said Akau a portion of said hui lands for a period of twenty-two years from January 1, 1895, at an annual rental of $100. That on February 21, 1896, the said Akau leased both the land purchased from Kamale 2,*280 and that leased from Kamale 1, to Harada Kndia and Hakada (Japanese) for twenty years from February 21, 1896, for an annual rental of $300 and by various assignments the said lease was transferred to the persons from whom the defendant herein collected the rents amounting to the sum of $1,210.00, being the amount collected at the reduced rental of $170.00 per annum.
“I find that C. Ako, father of C. K. Ai defendant herein, became the purchaser of both the holdings above referred to at a receiver’s sale of the. property of Akau, and that the defendant is the sole devisee of said O. Ako, now deceased.
“From the above findings I conclude that the defendant, O. K. Ai, became a co-tenant Avith the other holders of shares in the said hui, of the lands described in the said lease of February 21, 1896, and that the rents received by him for the use of said lands are the property of the hui and should be paid into court to.be disposed of by the further order of the court.
“A decree Avill be entered in accordance Avith the above findings.”
The petition alleges and the ansAver of respondent Ai admits that on March 29, 1895, Kamale II was the owner of one share of the 353.25 outstanding shares in the hni aina of Holualoa 1 and 2 and that on that day he deeded to one C. Akau an interest in the hui, described as follows: “All of my coffee patch situated at Holualoa, North Kona, Hawaii, seaward (makai) of the government road running from Kailua to upper Holualoa, and now' situated between Kamale senior’s coffee on the mountain (mauka) side and that of Moke Apakahelu on the sea (makai) side,” and which coffee land is within the boundaries and a part of said hui lands mentioned in said deed. Said Akau by lease dated February 21, 1896, leased tAventy-two acres of coffee land to three Japanese for a period of twenty-two years; thereafter by mesne assignments the said lease was transferred to three of the defendants in the partition suit.
“A conveyance by metes and bounds to a stranger without the knowledge and consent of the grantor’s cotenants does not make such stranger a cotenant so as to give him the absolute right to have the portion of the entire tract assigned to-him. But such a devise or conveyance is valid between the devisor or grantor, and the devisees or grantees, and those claiming by or under them respectively, although inoperative as to the rights of the devisor’s or grantor’s cotenants and those claiming by or under them, Avho alone can avoid it, and that only if it prejudices them, the effect of the conveyance by the tenant in common of his share by metes and hounds being to pass the devisor’s or grantor’s proportional interest in the part described by the deed; and to entitle the grantee and those claiming under him to the rights of the grantor in the portion thus conveyed” (38 Cyc. 115).
There is no claim or shoAving that the conveyance to Akau by Kamale II was avoided by his cotenants, hence it passed to Akau only the undivided interest of Kamale II in the land described therein — said tAventy-two acres of coffee land. That a portion, if not all, of this land passed to Ako has been found and determined by the circuit judge, whose decision Ave affirm. When one cotenant leases a portion of the common property his lesseé becomes a cotenant with the other owners (DuRette v. Miller,
The interlocutory decree appealed from should be affirmed, and the money directed to be paid into court should be apportioned among all the cotenants, according to their interests.
The interlocutory decree appealed from is affirmed.