The Hawaiian gazette., 1884-12-03
Daluaiialt 6azette.
wFDNEspAY. DECEMBER 3. 1854
Supreme Court Of the Hawaiian IslAnds---
In Banco. October Term 1884.
u Woke, ADM; VS.. KAN Gu, KAASAASA
AND WIFE.

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y Woke, ADM; VS.. KAN GU, KAASAASA
AND WIFE.
Jrda, -. NecslyJ. AHsfis ). opiaios Of the
Court By Judd, c. J.,
This is an action of ejectment by the Adj
ministrator Of the Estate of Pauoa deceased,
to recover possession of certain premises on
Hotel street, Honolulu, and claimed by plain
tiff under an unexpired lease from Kaanaana.
defendant.
The case was tried at the July Term, 1854.
Of this Court and resulted in a verdict for
plaintiff for one undivided half of the land.
It appears BY the evidence that defendants
were not in actual possession Of the premises
but that the defendant, Kan Chu, as the lessee
of Kaanaana, had su5let the rooms in the
house on the land by the month to various
tenants, who are not parties to this suit. At
the close Of the plaintiffs evidence the defend
ants Counsel moved for a nOnsuit on the ground
that defendants were shown not to be in pos
session of the premises. This was refused.
The question raised by the bill Of exception is
whether this ruling was erroneous
Ii is urged by defendants counsel that as
ejectment is possessory action, the suit must
be brought against the person in the actual
occupation or enjoyment Of the land. Many
authorities are cited to sustain this view.
Sedgwick and Wait, Trial of Title to land,
Section 23l. Tyler on Ejectment p. Al and ?
and cases cited.
By our statute law Ejectment is not merely
a possessory action. 1t tries the title as well.
The language Of Section Ills Of the Civil
Code in giving form of the complaint is; "In
actions TO recover at law any specific share or
interest, or right to property, real or personal
in kind, as in cases of rep!evin or of eject
ment" and the form Of declaration is given.
This form requires the plaintiff TO give the
meies, bounds, quantity and locality Of the
land, and to state de kind Of title claimed by
him. Ejectment, then, may he used to recover
real property or any share, interest or right
therein.
We think it sufficient for the plaintiff to
show that the persons in actual occupancy OF
the premises are holding nnder the defendants,
who are the adverse claimants. Such is this
case. See Sedgwick and Wait Section 236,
Hind and futile 2 D. Chip, Vt. 10, Smith
and Walker is Miss. 5si.
The defendant produced the lease to him
self from Kaanaana and wife, dated LIST March,
1884, and plaintiff showed that the premises
were occupied by sub-tenants holding by the
month, paying rent to Kan Chu.
We notice that the New York statute pre-
scribes that it shall be sufficient for the plain
tiff to aver in his declaration in actions of
ejectment, that on some day therein specified,
and which shall be after his title accrued, he
was possessed of the premises in question, etc.,
etc, and that the defendant afterwards, en-
tered into such premises and that he unlaw-
fully withholds from the plaintiff the possess
sion thereof, etc. The statute further requires
that "if the premises for which the action is
brought, are actually occupied by any person,
such actual occupant shall be named in the
declaration. 2 Revised Statutes n. Y, .. 3I2.
We appreheud that in most jurisdictions the
matter we are discussing is settled by statute.
Of course the judgment can only be operative
against such persons as are made parties to
tue suit. But we do not think that we could
sustain an action of ejectment merely TO settle
the title against an adverse claimant out Of
possession, the possession of the premises be-
ing shown to be in third persons holding ad-
yersely to the defendant.
In the case before US the writ of possession
on the verdict Of the jury for one undivided
half Of the land, will let the plaintiff in to the
enjoyment Of half the rents paid by the sub
tenants as a co-tenant of Kan Chu, and TO pos
session of an undivided half of the premises,
when these tenaucies expire. We think the
Court was right in refusing a non-suit.
The next question raised by the exceptions
is whether the Court erred in refusing to
charge that "no verdict can be given for an
undivided half because no demand was shown. /"
The defendant admitted at the trial that plain
tiff had demanded that possession of the prem
be delivered up to him. The plaintiff claims
IN his declaration the possession of the entire
premises. He recovered by the verdict an
undivided half. That such a verdict can be
sustained was decided by this Court in Nahi-
mai VS.. Lai, , Haw'n, 3l7. In that case the
plaintiffs claimed the entire estate, but the evil
dence showed that they and defendant were
coheirs, and asked for and recovered verdict
for moiety only. The Court ordered iudg-
ment on the verdict.
The remaining question requires for its COM
plete understanding, full statement of the
facts Of the case.
Kaanaana leased, by an instrument recorded
9th August, 1879, but dated the LIST Septem-
Der, 1879, house on the premises in dispute,
to Pauoa, for term of ten years, and by an
instrument dated 27th August, 1879, and re-
corded same day, Pauoa sold and assigned to
Moon Hop (who is also known as Man Hop,
and also as Yee MANI half of his interest IN
the lease Of Kaanaana, and the instrument de-
clares that "henceforth Moon Hop has become
partner with me, and the rents and profits
received are to be divided equally, one half to
me and one half TO Moon Hop, and SO also the
expenses laid out on the buildings and appur-
tenances, one half is TO be borne by me, and
one half by Moon Hop,
Further, Kaanaana, by an instrument dated
a Eat IL A..
l4th February, 1850, leased TO Pauoa, for ten
years, what was left Unbiased of the premises,
and merged therein the house included in the
former lease. By an instrument dated the 18th
january, 1880, Pauoa sells and assigns "a
Man Hop one half of his right in the lease Of
kaanaana to himself, and declares that 'Man
Hop has come in as partner of mine and has
an interest in my rights in the house lot, for
which the lease was made, on the sth Febru-
AIRY, 1880, and hereby Man Hop has authority
to manage all the personal property of us
two"
Pauoa went to China, and died in 1881
Plaintiff, ing Wong, is his administrator De-
mand was made in February, 1884, by Kama
ana's attorney of Man Hop (Yee MANI fol
rent. A settlement of this and other matters
IN controversy was arrived at, which was
signed by Kaanaana and Yee Man, Exhibit
FL II recites that whereas, Kaauaana has
brought suit against Yee Man for 81 ,763. 6s
for money loaned, and for rent of the premises
IN dispute, and zee Man claims to be allowed
Ss9s.O5 for goods, board and lodging, etc., for
kaanaana and family; the parties settle the
matter In controversy as follows:
LIST. "Said Yee Man hereby surrenders all
claim to said premises, on Hotel street. being
the same more particularly mentioned and in
tended to be demised in two certain leases OF
said Kaanaana 10 Pauoa pa Wong) dated res
pectively September LIST, 1879, recorded liber
81 page i55 and February sth, 1880, recorded
liber 81 page 81 and further releases all claim
OF or under or by virtue of said claim Of
S993.O5 and hereby admits that he is indebted
to said Kaanaana in the sum Of one thousand
dollars" for which he gives bis note, etc.
IND. haanaana withdTaws his suit and PAYS
costs, and also mortgage of zee Mau's to one
Hung Chung, of $500, etc.
1t is claimed by defendants counsel that al
Pauoa and Yee Man were partners in the
leaseholds, this property became, on the death
OF Pauoa, vested in zee Man as the surviving
partners: That Yee Man held the leasebolds
Tor the purpose of winding up the firm and he
did SO by the instrument above referred TO
That Zee Man surrendered the interest of hin
deceased partner as well as his own to Kaa-
mama That the administrator cannot bring
this action.
1t is in evidence that the parties to the sur
render knew Of the existence Of the claims Of
Pauoa's relatives but that It was executed IN
defiance OF them. Also that the sum Of SpP3. O5
r.~Ns III ~