The Hawaiian gazette., 1883-02-14


the premises in dispute, describ- |
ing them by meses and bounds; az To have and |
to hold the above described lot with all the |
buildings thereon and all appurtenances there |
unto belonging, unto the said James Austin, |
his heirs, representatives and assigns for the |
full term Of ten years from and after the 30th |
day of March, A. D. 1855, as aforesaid, with |
molestation or hindrance from the said Mainae |
or any other person or persons whomscever
claiming by through or under the said Mai
naen
{" And the said james Austin covenants and |
agrees to and with the said Mainae that he the |
said party of the second part or his represent
atives or assigns will pay or cause to be paid |
to the said party of the first part or her repre-
sentatives as rent for the above described
premises annually, the sum of two hundred |
and fifty dollars in equal monthly payments,
beginning in April, 1855, and continuing for
the full term of ten years thereafter, he the
said party of the second part agreeing to and
with the party of the first part TO pay any taxes
that may be by law imposed on the said prem |
ises during the continuance of said term. Aud
it is further agreed and fully understood by
the parties that the said party of the second |
part shall have the privilege at the expiration
ct this lease, of renewing the same upon the
conditions, provisions and payments as herein
specimen, LOT aUOtUcI ttIlu VI tcu years VI cO
long as he or his representatives may desire
the same upon said condition. And said James
Austin or his representatives or assigns. shall
occupy and enjoy the lot of ground and prem
ises herein conveyed without opposition or
disturbance for the said term of ten years,
with all privileges and immunities incident to
absolute ownership, he paying for the same as
aforesaid, the yearly sum of two hundred and
forty dollars in equal monthly installments
beginning with April 1855, as aforesaid"
Then follows provision for distraint for rent
in arrear.)
"And it is also agreed by the said parties
that at the expiration of this lease the said lot
of ground shall be restored to the said Mainae
or her Representatives together with all the
buildings and improvements" This lease is
signed by Mainae and James Austin, their sig
natures acknowledged, and the instrument re-
| corded 2sth January, 1854.
On the back is the following; "Know all
men by these presents that Luau Of Bonolu-
In, in the Island of Oahu, do hereby declare
that have always known, approved and con-
scented to the within instrument and do hereby
as far as my rights are concerned ratiiy and
| approve the within instrument, this 18th day
OF September, A. D. 1850. his
LUAU. Y
mark
In presence of H. L. sheldon:
Luau's acknowledgment to the above was
taken 23rd January, 1852,
1t is claimed by plaintiffs counsel that this
instrument being made by married woman is
void db iniio; that, it being void it cannot be
revived by the husband after the death of the
wife, for the property descended to her heirs
| on her death.
The defendants counsel on the other hand
L. al. Al.
void because it was executed by a married
woman as her husband expressly ratified it,
| The law in force in respect 10 married wo-
mans control of her lands in 1854 when this
instrument was made, was the same as at pres
| ent:
"The wife shall be deemed for all civil pur-
poses TO be merged in her husband and civilly
dead. She shall not without his consent,
have legal power 10 make contracts, or
to alienato and dispose of prosperity"
Laws of 1916 p. 50 and Civil Code Section
1887.
Various Justices of this court have held
that a deed of n married woman, her husband
not joining or asserting thereto, is void. But
the paper in this case is in the nature of
lease upon which the husband has endorsed
his express consent and ratification.
see nothing in the statute to indicate that
1 AuS VI COucClt thuol bN
contemporaneous with his wife's contract.
The meaning is clear that she may make con-
tracts and ALLEVIATE or dispose of her property
with her husbands consent.
The common law method by which a wife
could ALLEVIATE her land was by fine and re-
covery by matter of record in open court.
Chancellor Kent in his Commentaries, 2nd
Book p. 1853, says: The substitute of a
deed for a conveyance by fine, has prevailed
throughout tie United States, as the more
simple, cheap and convenient mode Of convey
ance. The reason why the husband was re-
quired to join with his wife in the convey
anoe was, that his assent might appear upon
the face Of it, and to show he was present to
protect her from imposition etc." There is
some evidence that Luau the husband Of
Mainae sometimes received the rent during
her lifetime but / find no receipt of such a
date.
Having found that the instrument under
which defendants hold possession is not
void, ] now consider its purport. 1t creates
valid tenancy in ]. Austin for the first ten
years, from LIST April 1855 to LIST April 1865,
and his holding over as tenant and continu-
ing to pay the rent, on the authority Of Camp
bell and Turton vs. Akana Haw 57l, bound
him for a full term of ten years more, under
the clause for renewal. This additional term
expired LIST April 1875. But the instrument
gives the party of the second part the privi-
lege of renewing for another term of ten years
or $50 long as he or his representatives may
desire the same upon said conditions"
This is claimed by the defendants counsel
to create fee, determinable at the pleasure
of the grantee, or base fee. If a base fec
was not created, the instrument is lease
J providing for extensions of terms of ten years,
each new term beginning by actual occupancy
and holding over from the previous terms
Defendants Counsel cited cases which are re-
ferred TO in the opinion of the Court"
In Washburn r. P. p. so we read, ''thC
term determiuable fee seems to be more gen.
eric in its meaning, embracing all fees which
are liable to be determined by some act OIL
event expressed on their Limitation TO circun
scribe their continuance, or inferred by Law
as bounding their extent"
! Plowden uses the following language
"Such perpetuity of an estate which may con-
: tinue forever, though at the same time there
! is contingency which, when it happens
will determine the estate. which contingency
, cannot properly be termed a condition, but
, limitation, may be termed a fee-simple de
J terminable."
, Although in the instrument the word "heirs'
twice occurs, in the demising clause and ii
the habendum clause, there is clause tina
the premises shall at the expiration of til,
! lease be restored to the said Mainae or he
representatives with all the buildings and i'm.
j provements, which would be inconsisten
] with the idea of creating fee of any charac
ter in the land. 1t seems to me also that b,
the event or act which is to determine thu
estate in base fee is meant something differ.
! ent than the mere election of the grantee o.
his wish to terminate the estate. | canno
I reconcile the definitions above given with tn
! language of the instrument before me. Look
r ing at the whole instrument am of the opin
ion that no estate in fee was intended by tn
parties, but lease-hold estate.
Counsel for plaintiff contend that after thu
, LIST April 1875, there was tenancy at will
: between the parties and which would be ter
. minated by the death OF either party.
. ssylor's Landlord and Tenant Sec. 1913 say
: "a covenant to let the premises to the lessee
Z at the expiration Of the term, without mention
: ing any price for which they are to be let; o
{ to renew, upon such terms as may lie agreet
D on, in neither case amounts to covenant 70
: renewal, hut is altogether void for uncertainty
: Nor will general covenant for renewal b
{ construed to imply perpetual renewal unles
: the words are expressly TO that effect; tn
t most lessor is bound to give on such
Q covenant is, to renew for one term only