The Hawaiian gazette., 1884-03-05
3auaiialr 6azette.
WEDNESDAY, MARCH S. 1884.
supreue Court Of the Hawaiian Islands--
January Terrain Banco
GEO. S. KENwAY, by HIS SExT TnI';Nn AND
GUARDIAN, MARY ASN kESvAY,
VS.. EEN az
CHARLES MOTLEY.


AHAhLts -NNAAaLhs
No., r.5s r =. recrlIy mad ahsfR J. .J.-0siH-
ioa ~ ne Court by AHsfin. =.
This case is here on exceptions TO thu d.
rection of Mr.. Justice McCully to tine jury, at
the January Term, to find verdict for the
defendant |fttAt
The action was eicctment. By Royal Pat
ent No 232I, dated Sept. 18th 1856 the land
IN dispute was granted to George 5. henway
and Mary Ann Kenway, his wife. He died in
1872 and she, by deed dated Sept -, 81,
conveyed said land to her infant son the plum
tiff, who now holds the fee. II further ap-
peared that, on the second day Of Sept. 1867,
lease was executed Of said land expressed in
the body Of it, to he from the said George 5.
and Mary ann Keuwsy of the first part for
themselves, and on behalf Of thoir three daugh-
ters named therein, to 5. Kipi Of tie second
part, for the term OF twenty years at the an
nual rent Of fifty dollars. And the said KIP
covenants to pay to the said Kenways the said
rent, and further covenants with them that
he will put into good liabitable condition and
80 maintain a: his own expense during the
term Of the lease, all the buildings now on
or that may hereafter, during the term OF this
lease. lie DUH on LllE kdlu lal4 AllA
and that he shall and will allow the said
George s. Kenway and Mary Ann Kenway
and their family or any part theTot, free access
TO-, and freely to dwell on the said leased pre-
misses, and freely to cultivate and use 50 much
of the said land as they may require for their
own purposes, and to have the freedom Of
pasture on the said land for their own animals
during the full term Of the said Least" This
lease was executed and acknowledged by
George 5. Kenway alone, with ;. klpi the les +
see.
1t further appeared that on the sixth day Of
August 1875 the said KIP assigned said lease
to the defendant Charles Motley, who now
claims, subject 10 the performance by him Of
all its conditions, the possession under IT,
1t further appeared that Mrs Kenway sign
cd eight receipts for rent to Motley which are
on file. The first receipt in evidence was da-
led Dec. IL, 1875 and the last receipt was da-
ted Aug. n, 1883, and she admitted that the
rent was paid to her in full from She time OF
her husbands death to Sept. 2, 1888
The land is referred to in the lease as stu
ated in the Iii or Ahupuaa Of Paauilo, Hama
kua, Hawaii.
The receipt dated Hilo, Dec, 49, 1875 is as
follows; Received Of Mr.. Chas. Motley tile
sum of S2T the same being for rent OF land
called Paauilo in district Of lIamakua, Hawaii,
viz for twelve months rent 10 Sept the first,
1875" MARY Ann Kenway."
The other receipts are similarly worded.
The receipt dated 0nomea. Hilo, Sept 0, 1875
is as follows, manifestly written in her own
hand: "Mr c. Motley, Sir:-I have this day
received the sum of $50 in full, the same be-
ing for the rent of my land on Paauilo, CON-
mencing on the 2nd Of Sept 1917, and ending
on the first Of Sept. 1878. Yours truly,
"NIary Ann Kenway."
She testified that she had never seen the
lease presented 10 her, and on file, but had
often heard of it from her husband, and knew
that it included the land in suit,
By the decd to Geo. S. and Mary Ann Ken
way, they became owners of the land therein
described by entireties, tsee Paahana VS..
Bila 3rd Hawn. 725l and upon his death in
1872 his wife became the sole owner thereof
as his survivor. The defendant claims that,
by virtue Of the receipts for rent as shown,
Mrs. Kcnway has ratified the lease he holds
by assignment, and that he can thereby hold
the possession Of the land as lessee. The
plaintiff claims that this is not SO. That at
the best the rule OF ratification claimed by the
defendant is in doubt on the authorities, and
that the more reasonable rule, in strict law, is
that the lease which the widow did not exc
cute, was void at her husbands death, and
can in no way be revived or ratified.
By law in this country up 10 the time Of his
death George S. Kenway had the right to the
rents and profits Of the land in question and
the right to lease the same, and his wife had
no power to make a contract to lease It with
out his consent. Had she signed and not &C
knowledgcd it,in England, and in many Of the
fcI harg frrs ,,.oft1I la- I4ar
of no effect, and she might have refused to be
bound by it either before or after her lius-
bands death II is admitted by the counsel
for the plaintiff that had she so signed this
lease either in England or the United States.
her subsequent acceptance Of rent as shown,
would have been a valid ratification Of it.
The text books and authorities cited amply
prove this to be So Also, the text books cit
ed by the defendants counsel say, chat
lease made by the husband of his wile's land
for term that extends beyond his own life is
not void as TO the wife, but on his dUcease she
may elect whether to affirm or defeat it, and
if she accepts rent accruing thereon after her
husbands deCease she will thereby be estop-
ped from denying the validity Of the lease for
the balance Of the term"
This is substantially maintained by Wood's
Landlord aud Tenant, p. 1853, Taylor on Land
lord and Tenant sec. l02, Bright on Husband
aud Wife p. 1917, Bishop on the Law Of Mar
red Women vol. /, sec. ji7; and Bright also
cites Mr.. Jarnan on COnveyanccs as sustain
ing this view Of the law.
On examining the authorities cited b. these
text writers, however, several Of them are
found to he Of cases where the lease was exc
cuted by the wife, effectively, which the
plaintiff claims is fatal difference tor the
defendant Other cases cited however, sus-
tain the doctrine Of the text books, and the
defendant claims that they contain the better
rule and that the other rule is technical and
unreasonable.
The strongest statement that VIC have found
for the plaintiffs position appears in jackson
VS. Holloway John. X. Size n which case a
lease had been made by the husband alone but
thereafter a lease was made and properly ac-
kuowlcdged by both the husband and wife,
and the husband died. The wife had accept
ed rent Of tho first lessee after her husbands
death, and the court held that by the lease
subsequently made which was valid, the right
Of the widow 10 confirm or ratify the first lease
was taken away.
The Court, Thompson J. said: at would
seem little homogeneous, to speak Of n decd
as voidable by person who was not party
or privy to it, nor had any agency IN its exc
cution. The very term implies some agency
in the act which Ii TO be avoided. But it is
to give any opinion on this point.
Although this is Obie,' didHBi its reasoning
must be considered, and in bald case Of exc
cuiion by a husband alone, with covenants run
ming 10 him alone, it may be it ought to pre-
vail.
1t seems however a narrow construction
which terms that signature which is Of no
legal effect whatever when made.
A case throwing light on the matter is Good
right VS.. Strathsn, Cowper, PIP. 20l-l.
In that case the instrument executed though
in form OF lease for 90 years, by husband
aud wife, was in substance mortgage; it was
therefore held absolutely void and not voidable |
Is though lease, which was held voidabe |
by the ancient rulo in favor of agriculture and |
iillage. But Lord Mansfield said: ''In con- |
science she has confirmed ills security, which |
was entered into for the maintenance and sup /
port Of herself and family
And it was held that her acts after her hus-
Jaud's death of surrendering possession in
writing TO the mortgage Of tie land, and in an
recount stated, allowing interest on the mort
;age, and also in directing the tenant Of the
and TO dRorH to the mortgage Of lie prop
'rty were equivalent TO a confirmation of the
mortgage "gp0R he 9romd Of thar being eur
dent 10 a re-delirey,y If he ICED"
See also Doe VS.. Rowland, Cow 27T where
n acknowledgment by widow after her
death Of an unacknowledged sigma
ure made before his death was held TO take