The Hawaiian gazette., 1874-09-30
Supreme Court-HawniInn Islands.
James Campbell and Henry Tiaton u.s. Akana and
Young SteoHg.
DECISION OF THE COURT

DECISION OF THE COURT.
This is a submission under the provisions Of the
Sections 1140 and 1l4S Of the CiyiCode on agreed
statement of facts, of which the following is sum
mary. The defendants on the 10th day Of March,
1872, entered into possession Of certain ahupuaa
of land the Island Of Maui called Kalialinni, BY
virtue of certain lease signed by the plaintiffs as
Of that date; the habendum clause OF which reads
as follows:
ITO have and to hold the same with all rights,
privileges and appurenauces to the same belonging
for the term of two years with the privilege Of ve
from the date above mentioned unto the said parties
of the second part and their assigns at yearly rent
al of three hundred and fifty dollars (S350l for each
and every year and TO be paid at the expiration OF
each year, namely on the 10th Of March, 1913, and
I following until the expiration Of this lease
1t is true, as i. is said by the plaintiffs counsel,
that If the words with the privilege OF I'VE were
/ not there the tenancy would lave expired on the
/ 10Th of March, 1874, and il appears By the brief
statement of facts that the defendants have con
/ tiuued to occupy the land up to the present time
claiming to do by virtue of the grant Of privilege
above reeited
The clause upon which this turns does not set
forth is usual that the privilege is TO be claimed
within a specified time before the expiration OF the
lease; and herein is the chief point OF the case-for
/ If there a specified time in the lease within
which the privilege should be claimed, there would
be question that the omission TO claim II within
the time specified would be conclusive against the
defendants right.
But this deed is an entire one it doesnot need any
renewal at the end Of the two first years, but sim
ply binds the defendants to Keep :he land two years
and gives them the privilege of keeping II i've years
1t is asked whether purchaser of Campbell and
TurtOn would have been bound to renew the lease
The answer is, that there would be no occasion TO
renew the lease, because of its entirety. Any pur
chaser would have been bound to take notice OF the
privilege and have been bound by it.
But again says the plaintiffs counsel: II the
clause gives privilege, it Is privilege for term
OF three years, neither more nor less both parties
become bound by ii.
That is the view OF the Court. We think that by
remaining over they took the privilege Of five years
and the plaintiffs became entitled to be paid their
rent at the expiration of each year, namely on the
10th of March, 1873 and following (years) until the
expiration Of this lease and the lease will expire
on the 10Th of March, 1877, the defendants having
awaited themselves OF the privilege OF i've years so
that if the defendants shall leave before that time
they will be Obliged still to pay the rent.
We have failed to apprehend the force Of the OBJ
lection that I" party claiming a benefit not mutual
will be held to strict performance because that
there nothing for the defendants TO do. except
to pay the rent which 1t is admitted that they have
done.
The "mutuality," of the bargain was from the
beginning, il the defendants would enter upon the
land and pay the rent they might occupy il for five
yeaR. II is evident the defendants so understood
It, or they would have made provision either for
moving their cattle would have given notice Of
their Intention 20 continue the lease, and in
opinionsthis construction Of the lease reason
able. To bold that the term is an entire one with
the liberty to terminate at the end of two years will
do no Injustice to the plaintiffs, whilst to hold that
the defendants have forfeited their lease for not Civ
ing notice which they did not specifically agree TO
give would work for them great injustice.
This continuance the land after the termination
Of the two years was virtual notice Of an intention
10 nU1u ~ the end OF the nve years, uuu thereby
they assumed the obligations of the lease 10 pay the
rent for the whole term.
See Kramer Cook. Gny's r. 552, where,
no formal election or notice was necessary 10 the
continuance of the lease for the additional term Of
two years. The continuing to occupy the premises,
and the payment Of the rent at the increased rate
stipulated for in of continuance were the best
possible evidence Of the election OF the defendant
10 avail himself of the further term. They were n
declaration and an act-the expression Of the wish
and its execution"
1t is therefore adjudged that the defendants are
entitled to hold for the entire term Of five years
next ensuing after the 10th Of March 1872, and /
further that by not delivering up the premises on
the 10th Of March 1874 they have bound themselves
to pay the rent for the entire term as aforesaid /
namely, until 10th day Of March 1871 10 yearly pay
ments as stipulated by the lease.
ELISHA II. ALLEN, Chief Justice.
CHAs c. HARRIS, Associate Justice.
L. McCully for Plaintiffs.
w. c. Jones for Defendants