The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1871-02-15

the party 10 De charged LncreNiln or oy some person
thefeunto BY him lawfully authorizedn 70, Sect
105S The consideration need not be expressed in
visiting, but may be proved BY any other legal evi
dence. 70, Sect. 1854 Hence 4 lease within these
statute requirements is good against purchaser
with notice. This construction In equity, and finally
in law, was judciaiy made in England aud America,
before the clause excepting this csss Of pur-
chasers was enacted Dole vs. TurioW, u Met,
164; Thompson vs.. Blanchard, 5 n. Y, ST.
The rights Of the assIgnees Of reversion to bring
an action on the covenants or to claim forfeiture
on the breach OF the covenants Of prior lease and
the rights OF the lessor reenter after sssgnngt
reversion, may not be clear under statutes The
common law did not allow chose In action. .
right Of entry, 10 be assigned. Hence when the
Crown, in the time of Henry vIII granted away the
monasteres, the grantees found that they could sue
In the OF the grautors for breach Of ceyenann
In the lease, but that neither they the srantou
who had parted with the estate could re-enter aad
defeat the leases for breEch Of conditions Il wss
only by Statute 49, II. VIII G. -. that grantees sf
rsversions obtained the prevlons rlghis Of action
held by the grantors. II Is unnecessary now to pur
| sue this qs~-.is- n--'h@- T. Brewer "a Chase saf
the July Term, 1869, IL was however. settled that
our statute remedy to possession Of land Is
cumulative TO the previous remedy BY ejecimenI
But the plaintiff claims that II the first lease was
good against himself the second is not and that
the substitution Of the second lease works a sur
render of the first, and further, that his consent.
indorsed the second lease, being without consd-
eration had no other effect than make the lessee
bis tenant at will or snFsrance. This view is IN
sound for several prlOr lease may ~
garded as surrendered in law upon the mutual execa
tion OF second, but this Is only BY reason Of the
intention Of the parties themselves. Il Is absurd 10
suppose they intended to Substitute a void for a
valid lease Schaflin vs. Carpenter Is Wend 100.
| Flagg vs.. Dow, 80 Mass, a6; Van Renescllaar ".
Penniman, weud., $50; springstein ys. scAsrmcr-
horn, 12 John, 357. "where parties enter into q
contract which would have the effect Of rescindlue
previous one, but which not operate according
to their Intentions the contract shall not operate
to affect the previously existing rghts" Noble W.
Ward, Eng Exch., (1s57,) 137. Moreover, the evil
denee shows legal agreement between the plaintiff
aud lessee on full consideration, thai the latter
should hold under the terms OF the substituted lease
II we admit that other consideration, such the
plaintiffs acknowledgment Of his iather's power
to lease can be shown for the deed than that which
is expressed in the deed, II shown that Il could
not affect the subsequent lease, II Is air inference,
and one that not avoid, that the plaintiffs
assent to the second lease given consideration
OF the advantages he would receive from lis terms,
which would give him rights Of residence and pas
tursge not secured by the first lease, and Of the
receipt, jointly with his iather Of 81 600 rent
under the second lease, given ard accepted the
day IL was executed This was q legal contract.
which binds the plaintiff TO allow the lessee to hold
under the second lease, but 1t gives him rights
lessor, and In aspect Of the ease does il make
the lessee tenant at will or suderance.
Assuming that the grantor Of the reversion could,
by our law, take such steps would defeat this
l. -
plaintiff would be entitled to treat the lessee and
those holding under him as trespassers, let US In
qure, a. whether there was breach Of condition,
and (al whether legal steps thereupOn taken
to work forfeiture. Rent due and payable in Ad-
vance Sept. "a, 1859, and again March "a 1870, was
not then paid, but no demand therefor was made
until the essor's letter OF Aug. 90 1870 delivered
TO Green by Berr previous 10 Sept "a then follow
ing, by his letter Of Sept 49, 1870 and BY his ageB:
Aseguts letter Of Sept. "A, presented TO Green By
Lett Oct l. The second letter Of the plaintiff refers
to the previous bill sent by Berri hence demand
was made for the adVance rent Of Sept. "a until Oct
l, when demand made by an agent Of whose
appointment the lessee had received no notice from
the lessor personally. The demands Of Aug. 20 and
Sept 10 certainly not made as the Law requires
which insists that the demand be made al time
before sunset the day the rent Is payable. Chap
man vs. Harvey, 100 Mass, s5S.
Besides, these demands were satisfied BY the lea
sor's unconditional acceptance, Oct. S, Of the rent
accrued to Sept. "a, which must be held TO Be q
waiver of forfeiture previously claimed stuyTeasnt
vs. Davis Paige, 427. There would be difHcultyla Ia
holding the demand Of Oct /, by letter Of Asegut
of Sept "A, as legal, In point Of tune, precision.
due notice Of Asegut's appointment; but II we ad
init that this demand, under all the other eiFcunl-
stances Of the case sufficient that thc lessees
previous refusal to pay on the ground that be had
assigned the lease dispensed with the necessity Of
further demand, there Is no ground on which a no
| tice to quit, some acts from which such notice
can clearly be Inferred can be dispensed with The
estate held under lease for years with provisions
for re-entry and forfeiture breach Of covensnt to
pay rent Is conditional limitation, which Il esieas
ble at the lessons option and Is not estate de-
terminable fpsO Jaeto, such breach. Fifiy Asso-
ciaies vs.. HowIand, II Net. %; Atpf-Gen'I, ".
Merrimaek MI Co, "a Gray, 5S4. Such an estate ls
forfeited only the landlord giving the tenant clear
notice that he intends to claim the forfeiture and At
what time the tenant must quit, or become a tres
passer. Brewer vs.. Chase, tsbi supra Coke's LIZ,
sIs; sperry vs.. sperry, s N. H.. 4sl; Willard ~
Henry, N. H., l2e; Stone vs.. EIir. Cush., %;
Arnsby vs.. Woodward, B. & C., 522; Oakss u,
Munroe, Cush-, 2S7; Sanford va. Harvey II cnshL,
95; Elliot vs. stoue n Cush., 170; Cunier Va Biake,
3 Gray, 224; Steward Vs. Harding, 10, s35; Leavin
vs. Leavtt, A n. H., 341; Miner vS Monroe, 10
Gray, 2o2; Beach vs. Nixon . n. T., IS; J==kson va
Salmon, Wend.. 327; Jackson - Wilsey. Johns.,
267 at Is clear that the notice must be such -
the tenant may act upon with safety, that i, ena
which Is in fact and which the tenant has reason 70
believe, bIsding the landlord" JOncs ".
Phipps, @ B., Qs8s.) 57a- Would TIE lease
safely have acted on any notice from Asegut,
1t must be observed also that there was Joint
occupation By the parties. so that there could Be-
no actual entry By the lessor short Of svicting
the lessee. "when the party who : 10 perform The
condition. and the party for whom Il Is 10 be per-
formed, are jointly In possession Il h said nat the
latter must make cain for q breach bJ se;s and
words, or either such as viii distinctly adm11lsh
the granter that possession viii Be- retained s5r ne
breach and not waived 1 HIIlard1 Real r. s0T
and ser Rollins vs. Riley. a n. n, u was fhs
notice against trsspassers posted In public places
near the residence Of the essees agent assignee
and published 10 the newspaper safiei<nf TO no;ily
the lessee and those bosding nnder hiu that for.
feIture was claimeds Clearly NOT This gsncrsI
warning against trespass vas served on 10 person;