The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1871-02-15
subsequently made to him and refused.

eupancy. Our Statute OF Frauds, Section 1883 Civil
Code, Is but modification Of the English Statute of
20, Car. H. 3, and leases in writing not made pur-
suant to that Statute conveyed a mere estate at will
A tenant under a void lease is a tenant at Will
Taylors Land, and Ten. Sections IS co. l. Term, So
| /. Term, 90.
There was no power Of attorney to George Davis,
consideration In the lease to John Davis, and no
satisfaction therein which is binding on him. Green
tsstied that he merely asked John to sign the lease
because he in the habit of doing business for his
father. TIE receipt was evidently signed BY John
for the same reason. There is no evidence that he
received any money as consideration. His receipt
of rent under void lease only created estate at
will or sufiefanee. l. Term, SO. ia
H. The fee was in John when the lease was
made, June IL, 1865, and his deed was recorded
before the lease Possession follows ownership and
4 gives right TO maintain trespass Taylor's Land.
and Ten Sections So 7s5 II Johns sss. Ib., So;
1s4 Is Me-, sS6. IN. IT,, 167. sJohns., go
Mass, 4SS.
Plaintiffs right of possession when the defendant
entered continues until reentry and recovery. 4
Cow, 500. s, Wend., SIS. 6 Hill, 32S The plain
tiff always had actual possession His notice by him
self or agent was enough to terminate tenancy at
sufierance or will, and amounts to reentry
| Ill The statute of summary proceedings to re-
cover possession was not intended for leases like
this. The landlord may re-enter If he can do so
peaceably. Allen, lis; II Mass, 400; 10 Pick,
So 575. The acts of the plaintiffs agent safi
cient enable him to maintain trespass against the
defendant. l Pick, 4S; II Pick, 26f. The Plain
tiff could re-enter breach of condition. 13
Weud., SIS; & c., SIS; Taylor's Land and Ten,
Sec 492; Writ VS.. Phillips Haw., 16.
w. The lease BY its terms was forfeited for nom
payment of rent, and the plaintiff was remitted to
possession declaring the forfeiture aud reentry,
and the defendant became trespasser from that
time. The plaintiffs acts declaring his intention
perfected the forfeiture. l Hil., Real Prop, 800;
Co. Lit, 202a. No place to pay rent is specified,
and it was the lessee's duty to pay the land, OF
on that island. The lessons not required TO
| hunt up the lessee elswhere. No further demand
| for $500 rent first due needed, as payment
expressly refused unless on certain conditions.
The demands made were sufficient The nature of
a demand must be governed by the circumstances.
horizontal rule requiring an mpossibility is alb
surd. demand on this wild land, where the lessee
did not reside, would only be made TO the idle
wind. There was waiver of demand by consent.
43 N. H., 2l3.
V. A lessee cannot discharge himself of his obliga-
tons. Taylor's Land. and Ten, ST. There is no
privity between the lessor aud sub-lessee. ID,
AS No notice was given to the lessor Of the
sgnment and he is not affected by it, H.. Sections
$751; 3S2, 524 The failure to give due notice of the
assignment of the lease amounts to waiver OF de-
mand.
VI George Davis receipt from the Grazing Com
pany, Oct. 3d. 1870 after the forfeiture declared and
re-enry does not bind the plaintiff, and cannot be
construed as a waiver of forfeiture
VII. Receipt of rent after forfeiture is waiver.
IL wend, $50; Cow, $50; B. & Aid, 4Ol; Co.
Lit, 20l, c. H; Cowper 246, 1872 sos; IL Barb, SO
Taylors Land. and Ten, Sec. 49s. Waiver is ques-
tion of intent All the plaintiffs acts show he in-
tended forfeiture. 26 Barb, A.
VIII There were three cases of forfeiture for non
payment Equity would not relieve where there
was such gross neglect. Eight hundred dollars was
due Sept 24th 1870, when forfeiture was declared
and not paid until after the forfeiture. Three
hundred dollars payable also on that day, was not
rendered until after Oct Sd, 1870.
TX. The testimony is clear on the damage.
F. HARRIS, FOR DEFENDANT.
I. This action of trespass does not lie, as there
was no exclusive possession. 2 Selwyn's Nisi Pr,
1928, n.
H. The first lease is good and valid between the
parties, and Green is not a trespasser under Ii.
the possession under it, The lease is therefore good
against him.
w. It is clear that the deed from George Davis to
John is not bona Jlde, appears by the grantor's
receipts of rent and his demands therefor and ap-
pointment of Asegut agent OF the land, also by
his letters referring to himself well John, as
sill owner. Such acts of ownership would not
have been permitted or undertaken If the deed had
been understood as bona tide conveyance.
V. 1t is claimed that the second lease was substi
tuted for the first. Green testified that it was
intended to carry out in a more formal manner the
first agreement. II the second lease be void, It can
not be substituted. The second lease is good, be-
cause on the same day with taking the conveyance,
the plaintiff signed paper asserting to what lad
been or might thereafter be done, and received rent
under the second lease. This is sufficient memoran-
dun in writing within Statute Of Frauds
vi. The plaintiffs possession was only that which
the lease gave him. under which the defendant holds
VII George Davis knew the lease was assigned,
for he reeeipted for rent from the Waimea Grazing
Co, (Ex. A.2,) and Green had so told him.
Will This lease has not expired By its own terms,
by acts of the parties The notice to respassers
proves nothing. The plaintiff must follow the
Statute for recovery Of land by Summary Proceed
ings. Art XL., Civil Code
TX Forfeitures are not favored in law. Bacon's
ABR 672 Courts Of law and equity interfere in the
tenants behalf after the payment Of rent, in order
to save forfeiture. Taylors Land and Ten, Sect.
495.
X Neither statute nor a common law demand
was made 10, Sect. 473.
XII. No forfeiture was claimed previous to Sept.
a. 1870 and none can be claimed SINCE as the lessee
has at all times been urgent Of tender which Is now
in Court, and not accepted.
OPINION OF THE COURT, Br HARTwELL, J.
We find the facts to be according to the docu-
mentary and oral evidence above stated. in which
there is no conflict The plaintiff took the deed Of
the land from his father with full knowledge Of the
prior lease then in force. This appears from the
testimony Of Green and from the evidence that be
resided on the land and jointly with Green and his
father occupied the premises for pastufage during
the continuance OF the lease and for several years
previous Such knowledge Is alone sufficient In
equity to put person the inquiry to the term
Of the occupancy. Cunningham rs. Potter, % Mass,
252. The plaintiffs written acknowledgment Of his
fathers authority concerning the lease, made on the
same day with the deed is alone conclusive on the
point Of knowledge. Our statute Of registry pro-
Ydes that leases for than year shall be re-
corded, or be "void as against any subsequent
purchaser in good faith and for valuable cOnside