The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-02-06

he Caart per- Ind c..
This is an appeal by the defendant to The
Supreme Court in Blnco, on point Of law
from a Judgment in the Police Court Of Ho.
u0lul1.
Tie action purPorts to be brought in pursu-
ance q the Statute entitled ''Of summary pro-
cecdiEEs 70 recover possessiG', Of land in GER
tain cases Civil Code, Art. 40, and amend
ment in Is6i.
There Is in evidence 4 mortgage upon certain
premises OF Lilihl street, in Honolulu, dated
29th July, ISL, executed by Naukans, (w.)
and David kanse her husband, to one Maria
L0wrey, securing the payment Of $500 and
interest, IN two years from date.
Also 4 lease Of the same premises from the
said m1rtEagors to Wong Quing, (defeudsni)
dated March goth, lss3, for ten years from
date, at the annual rental OF SIS, BY which the
lessee covenants to pay the rent at Mr.. ". r.
Castles cffce until the mortgage IS paid, The
inference would be that Mr.. Castle represented
the mcrtSaECs There is also the following
covenant: This lease is made subject to the
Aforesaid mortgage, ami if the land Should be
sold upon foreclosure Of the mortgage, then
this lease can Be- annulled-'
There Is in evidence further, deed dated
zfth sept, lss3, from z. c. Lovrey, descTib-
inc himself as heir Of Maria Lovrey the mort
Easor first mentioned, to John Rcbello, tplain-
ar conveying to him upon foreclosure all the
interest which be possessed By the mortgage
The defendant urges that there is no rela-
tion Of landlord and tenant existing between
hiU and The plaintiff and that therefore the
statutory proceeding to disposess a tenant does
not apply. he claims that if the plaintiff as
the rort-z-1r's assignee adopts the lease. then
be Is hound By 1t and as the lease has not er-
pircd the defendant IS entitled to Judgment.
And if the plaintiff claims the lease to Be weld
as beinz subsequent to the mortgage, then
ther5 Is 10 relation or tenancy between the
parties and the defendant is trespasser.
This Cozrt held IN kaaihle vs.. Cratbe. J
Hawu Z. TT6, that the statute we are now
considering applies ''ouiy where the relation
Ct landlord and tenant ronfsssedly exists. y
This was affirmed N Csuey rs. Maaele
Havu. K. ISL.
In Taylgr's Landlord and Tenant, Sec. 40,
tha author says. in discussing similar statute
n New York State 'sThis statute applies to
cases where the conventional relation Of land
lord and tenant sEbsists and net where it Is
created By operation ct law Therefore
uurtEaEcr eannat be tRrzed szt Of possession
Of the moTtE1ged premises under this statute
In EvsrsIcn - Sgttou- ) Wend., Isl, Saw
az e. J. says This statute is applicable
between landlord and tenant only. No such
rgiariaG existed between J. and T., the Whole
proceedings therefore fFcu beginning to end,
have been without Jurisdiction and void
The statute vas clearly designed to Afford
> speeiy remedy where the eouventio1zl rela-
sioz OF landlord and tenant existed and nos
where that relation Is created By operation Of
Inw The lee-islaturs ueTsr intended that ths |
mortgages should have right to pressed N |
der this statute 70 obtain possession CT the |
premises after forfeiture"
This IS individually gcud law. But the re-
ztioa Of landlord and tenant IN the natter |
7af1re Us Is not created BY operztiou ct Law, |
Is IN the case Of = morfE7gor and mortgage |
& q created BY the lease itself and the lessee
5 stopped to deny this. Ina tenant agreed |
4 bis lease ilzt it should Be forfeited If the |
lrsnises we're sold gud=r foreclosure Of the
0ar statute, as asssaded, difFsrs frou that Of
seE York II that il cnafsrs Jurisdiction span