The Hawaiian gazette., 1875-03-24

This Is an sctien brought under Chapter
7 20 Of the Civil Code 10 recover possession
{ Of certain premises on Nuuanu Avenue
Z Honolulu
The Plaintiff PIT in evidence Lease
dated Mareh S0ih. 1899, between Plain.
tiffS' wife Elizabeth Grimes who owns the
premises, snd the Defendant, whereby the
. premises sre derniSed 20 Defendant for one
year 81 the rental Of Twenty-Five dollars
per month, and there is privilege of re
newal for one year st the same terms.
The Defendant entered under this Lease.
The following paper was also put in
evidence
The following agreement Of Lease has
been entered into between Elizabeth
Grimes Of the first part, snd F. A Sehse-
fer Of the second pSrt, to wit:
= The party Of the first part rents TO
the party Of the second part the house
and premises with exception of the taro
patches, situated on the Punch Bowl side
Of Nuusnu Valley, above the first bridge,
for the term of two yesrs for his sole use,
together with the outhouses thereto be
longing.
The party Of the second part agrees to
psy 70 the party Of the first part for the
above premises, rent st the rate Of Twenty
five dollars monthly in monthly payments.
OF the water rates the party Of the first
part paws Fifteen dollars, and the party
ofthe second part Ten dollars yearly.
This Lease, st the same rental. msv
be continued for five years after the expi-
ration Of the term Of this Lease st the
option Of the party Of the second part
Dated Honolulu. August LIST, 1869.
Signedl EI11ABETH GRIMES L. 81
ISignedl F. A SCHAKEER," IL ST
This Is ACKNOWLEDGED BY the parties on
the 18th August, 1869, and recorded the
same day.
Notice TO quit was served October 18th.
1874, and marriage Of Plaintiff with said
Elizabeth Grimes Is admitted TO have tax
en- place on the 18th November. 1869: it
Is also admitted that Defendant has con-
tinuei II possession Of the premises up to
this tine.
A 5. Harwen for Plaintiff; R H.
Stanley for Defendant
BT TIE CoUzT:
The Plaintiff contends that the Defend
ants tenancy hss expired by efiux of
time, as the term Of one year from March
S0th, 1859, (the dste ofthe original Lease,)
&Dd the additional year Of renewal
ended on the S0th March, 1871; and that
the psper put in evidence, above recited
IN full, Is either void for indefniteness as
having no definite time Of beginning, OF f
that Il i merely an agreement for Lease 4
and Is eIecutory II It's terms
Defendant claims be Is rightfuIlv In .
possession BY virtue Of this paper which .
be contends Is valid, executed Lease;
and that It's acceptance on The LIST Au-
gust, 1859, operated SIS surrender of the
hrst Lease.
The two questions presented, are:
Ist Is this paper Lease or an sgree-
ment FOR Lease
snd Is II void for uncertainty?
On the first point, Wasbburn saws:
. And whether the instrument Is TO be
as s present demise or con
trsct for future one depends upon the
Of the parties, IS gathered from
the whole instrument, rather than anv
particular form Of expression In any par
tieulsr part Of the agreement. though, as
? general proposition, If there are apt
words Of s present demise, followed by
possession, the instrument viii be held
10 pass sn immediate interest l Wzshb.
r. P. p 80.
Oh Kent, 4 Vol Com .. JOS, ssvs: at
: sometimes question, whether the IN
strument amounts TO 3 Lease, OF Is merely
: contract for Lease Il Is purely s
question Of intention Poole vs. Bentlv,
y East 16s
In the case cited BY Plaintiffs counsel .
1cGrsfh- vs. Boston IO3 Mass 81. 1 find /
.hese words: If the instrument upon its l
ace. purports to be the contract upon
which the occupation Is 70 be enjoyed and
be relations and rights Of the parties to
e defined, snd Il contains apt words 70 ;
lPerzte Is present DENSE. II VII be 50
construed.
The paper before the Court, in nv :
,Plnion, contains apt words Of present {
Iemise," TO VT Il reads, The party Of
be first part rents 70 the party Of the
eoond part. ete-,-it defines the rent re- ,
eued, zId contains 8 stipulation In re- !
ard 70 water rztes,-in short, & It fully
iefnes the relations and rights Of the par &
les and Purports TO be the contract upon
Thioh the occupation Is 70 be euioved. and
-oes not indicate 70 ny mind that the /
sr1ies contemplated Lease to be draft !