25 Haw. 494 | Haw. | 1920
Lead Opinion
OPINION OP THE COURT BY
This is a suit in equity instituted by the' petitioners praying for an injunction to restrain the respondents from violating the terms of the leases under which petitioners claim to be occupying certain fish and vegetable stalls in what is known' as the Oahu market situated at the corner of King and Kekaulike streets in the city of Honolulu. It is alleged in the bill of petitioners that Y. Anin, who ivas the owner of the premises, leased the same to one Young Tuck for the term of 50 years from October 1, 1902; that on June 22 and June 27, 1904, the said Young Tuck orally leased certain of the stalls in the market building to the predecessors in interest of certain of the petitioners at a fixed rate of $15- per month for fish stalls and $14 per month for vegetable stalls, the allegations of the bill in this behalf reading as follows: “That the said Young Tuck orally leased certain of the said stalls, or tables, to the petitioner Wong Pun (Pang) and to the predecessors in interest of the other petitioners at a fixed rental at the rate of $15.00 a month for a meat or fish table, and $14.00 a month for a vegetable or grocery stall, it being then agreed between the said Young Tuck and his tenants that they were to pay the rental monthly in advance, without demand; that the landlord was to pay the ground and general building taxes, but the tenants the license fees; that the tenants were not to assign nor sublet without the permission of the landlord; that the tenants were to keep the stalls and appurtenances clean, in good order and condition, and were not to make alterations; that the
To the hill of complaint the respondents interposed demurrers. Prom the decree of the court below overruling their demurrers the respondents have perfected an appeal to this court. The demurrers present a number of grounds therefor, the following of which we will discuss in this opinion: (1) That the tenancies in said alleged amended petition being by parol are by statute (Sec. 2754 R. L. 1915) determinable by a notice to quit of at least ten days; (2) that the alleged oral leasehold agreements set out and relied upon by the petitioners are within the fourth and fifth clauses of the statute of frauds (Sec. 2659 R. L. 1915) and are void for not being in writing; (8) that such alleged oral agreements are void for want of mutuality and (4) that it nowhere appears from the allegations of said amended petition that these respondents or any or either of them had actual or any notice of said alleged oral agreements of leasehold.
The first and second grounds of demurred above outlined are closely allied and out of regard for brevity will he grouped and disposed of as one subject. The statutes referred to and which are the basis of paragraphs 1 and 2 of the demurrer above quoted read as follows:
“Sec. 2754. * * * Whenever any lessee or tenant of any lands or tenements, or any person holding under such lessee or tenant, shall hold possession of such lands or tenements without right, after the determination of such tenancy, either by efflux of time or by reason of any*499 forfeiture, under the conditions or covenants in any such lease; or, if a tenant by parol, by a notice to quit of at least ten days, the person entitled to such premises may be restored to the possession thereof in manner hereinafter provided.”
“Sec. 2659. * * * No action shall be brought and maintained in any of the following cases: * *
“Fourth. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or conv cerning them;
“Fifth. Upon any agreement that is not to be performed within one year from the making thereof;
“Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and be signed by the party to be charged therewith or by some other person thereunto by him lawfully authorized.”
It is contended by respondents that the parol leases set forth in the petition are at most mere tenancies from month to month determinable by the lessor upon notice of at least ten days as provided for in section 2754 R. L. Respondents further argue that the oral leases are void under the fourth and fifth clauses of the statute of frauds above quoted; that in the face of those provisions of law no interest in land whatever, not even a leasehold, can be created by parol in the Territory of Hawaii which will be binding upon the parties. We think it cannot be doubted that the oral leases mentioned in the petition must be taken as conveying an interest in land and therefore come within the statute of frauds unless for some special reason which the law recognizes as sufficient they are relieved from the operation of that statute. We furthermore conclude that because the leases created tenancies solely by parol they are governed by the provisions of section 2754 unless for a like reason they have been removed beyond the pale of that statute. But it is a well recognized principle of equity jurisprudence that
Judge Story has adopted this principle in his work on Equity Jurisprudence, Vol. 1, Sec. 759, in the following language: “Courts of equity will enforce a specific performance of a contract within the statute (statute of frauds) where the parol agreement has been partly carried into execution. The distinct ground upon which courts of equity interfere in cases of this sort is, that otherwise one party would be able to practice a fraud upon the other and it could never be the intention of the statute to enable any party to commit such a fraud with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances and the objects of the statute are promoted instead of being obstructed by such a jurisdiction for discovery and relief. And Avhere one party has executed his part of the agreement, in the confidence that the other would do the
In the case at bar the petitioners or their predecessors in interest paid substantial sums by way of premiums for the leases which they now enjoy and thereafter pursuant to the provisions of their leases and with the knowledge and consent of the respondents expended a large amount of money in improving the demised premises and it would amount to a fraud upon them to now permit the owners to oust them in the manner specified in section 2754 or - to permit them to implead the statute of frauds to invalidate the leases under which the petitioners possess the premises. And for these reasons we do not deem it material whether by the terms of the oral agreements the lessees were granted the' right of options for leases which they might avail themselves o'f at the end of each month and from month to month up to the date of the expiration of the lease held by Young Tuck or whether as contended by the respondents the oral agreements granted a present demise for the whole period of Young Tuck’s lease, for whichever view may be adopted equity will interfere to prevent defeasance by the lessor. As said by Lord Cottenham: “Courts of equity exercise their jurisdiction in decreeing specific performance of verbal agreements where there has been
The next ground of demurrer urged by respondents is that the oral leases referred to in the petition are void for want of mutuality, that is to say, that because under
The final point is made by the respondents that the petition is deficient and demurrable because it is not alleged therein that the respondents Young Sak Cho and Charles F. Chillingworth had actual notice of the oral leasehold agreements under which petitioners are alleged to be occupying the premises. In support of this position the respondents rely upon the provisions of section 3118 R. L. 1915, which reads as follows: “All deeds, leases for .a term of more than one year, or other conveyances of real estate within this Territory, shall be recorded in
Applying these rules to the facts as alleged in the petition herein the duty is not upon the petitioners to allege or to prove that the respondents Young Sak Cho and Charles F. Chillingworth had actual notice of the rights of the petitioners in the premises in question because the petitioners being in open possession the law imposes upon respondents the duty to make reasonable inquiry as to the rights of the persons in possession and if they failed to do so they cannot be deemed to be purchasers in good faith for value and the provisions of section 3118 would not protect them. If as a matter of fáct. they are purchasers in good faith for value this would be a matter for them to set up by way of defense.
The fact must not be overlooked that the cause is now before us on the merits of respondents’ demurrer and that all facts properly pleaded are to be taken as admitted. Considering the cause from this standpoint we are convinced that the petition divulges sufficient facts to call for equitable relief. To adopt the view contended for by respondents would be to permit them not only to repudiate a solemn agreement but at the same time to profit by the repudiation. If the leases may now be terminated by the respondents they might with equal right have been terminated at the expiration of forty-five days after they were first agreed upon notwithstanding the fact that the lessees were required to pay a premium of $4384.50 for the right to enjoy them. And they might have been terminated in a like period after the lessees pursuant to the terms of the leases had expended upwards of $11,000
We have examined all tbe grounds of demurrer urged by respondents and find them without merit.
Tbe decree appealed from is affirmed.
Dissenting Opinion
DISSENTING OPINION OP
I am unable to concur in tbe foregoing opinion and therefore respectfully dissent.