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

This is an appeal by the defendant to the
Supreme Court in Banco, on point of law,
from Judgment in the Police Court Of Ho-
nolulu.
The action purports to be brought in pursu-
ance of the Statute entitled "Of summary pro-
ceedings to recover possession Of land in GER
tain cases." Civil Code, Art 40, and amend
ment in 1864.
There is in evidence mortgage upon certain
premises or Liliha street, in Honolulu, dated
10Th July, 1881, executed by Naukana, (w.)
and David Kanae her husband, to one Maria
Lowrey, securing the payment of $500 and
interest, in two years from date.
Also a lease Of the same premises from the
said mortgagors to Wong Quing, (defendant)
dated March goth, 1882, for ten years from
date, at the annual rental Of S65, by which the
lessee covenants to pay the rent at Mr.. W. r..
Castles office until the mortgage is paid, The
inference would be that Mr.. Castle represented
the MORTGAGE. There is also the following
covenant: "This lease is made subject to the
aforesaid mortgage, and if the land should be
sold upon foreclosure of the mortgage, then
this lease can be annulled."
There is in evidence further, deed dated
2ith Sept, 1883, from +. G. Lowrey, describ-
ing himself as heir of Maria Lowrey the mort
garor first mentioned, to John Robello, fplain-
| tiff) conveying to him upon foreclosure all the
interest which he possessed by the mortgage.
The defendant urges that there is no rela-
tion of landlord and tenant existing between
him and the plaintiff and that therefore the
statutory proceeding to disposess tenant does
not apply. He claims that if the plaintiff as
the mortgagor's assignee adopts the lease, then
he is bound by it and as the lease has not eI-
pired the defendant is entitled to judgment
| And if the plaintiff claims the lease to be void
as being subsequent to the mortgage, then
there is no relation or tenancy between the
parties and the defendant is trespasser.
This Court held in Kaaihue vs.. Cratbe,
Hawn. r. 776, that the statute we are now
considering applies "Only where the relation
of landlord and tenant confessedly exists. y
| This was affirmed in Coney vs.. Manele
Hawn. r. Isl.
In Taylor's Landlord and Tenant, Sec 100
the author says, in discussing a similar statut,
in New York State: "This statute applies t.
cases where the conventional relation Of land
lord and tenant subsists and not where it il
created by operation of law. Therefore
mortgagor cannot be turned out Of possession
of the mortgaged premises under this statute
In Everston VS.. Sutton, ) Wend., 2sl, Saw.
age C. ]. says: "This statute is spplicabl,
between landlord and tenant only. No sucl
relation existed between J. and T., the whole
proceedings therefore from beginning to end
have been without jurisdiction and void.
seThe statute was clearly designed to afforC
a speedy remedy where the conventional rela-
ton of landlord and tenant existed and no
where that relation is created by operation o
law. The legislature never intended that tn
mortgage should have a right to proceed IN
der this statute 10 obtain possession Of th'
mortgaged premises after forfeiture"
This is undoubtedly good law. But the re-
lation Of landlord and tenant in the matte
before Us is not created by operation Of law
as in the case of mortgagor and mortgages
1t is created by the lease itself and the lessee
is estopped to deny this. The tenant agrees
in his lease that it should be forfeited if tn
premises were sold under foreclosure Of tb
mortgage.
Our statute, as amended, differs from that Q
New York in that il confers Jurisdiction apo