The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-09-23

siffiHg; 10 harfRg hcrH ~ Counsel ~ re case
Ophior BY Mecsliv }.
This was an action OF ejec,ment to recover
part Of the premises conveyed by the plaiuti
hy deed 10 one hela Chinaman.
The material parts Of this deed, upon Il
construction Of which the exceptions taken Dc
mend. translated from the Hawaiian language
which the deed is written are as follows;
Know all men by these presents that /, he
kuke and my wife Kamokoi IN con
alteration OF one dollar, TO us in hand paid, !
witness Of this sale and conveyance, and i
pursuance Of our own wish and good purpose
and on account Of the consent Of kela TO tax
good care Of US in respect to all things as Ion
as we live, do hereby convey unto the sal
Kela, our son-in-law, and his heirs, executors
administrators and assigns forever, all tina
niece Of land with its appurten
Gnces to kela aud his successors (hope,l th
said Kela to psaceably hold the land, aud W
relinauish all our rights therein and all lease
/ which We, or either OF US have made Of am
part thereof, are hereby cancelled by this deed
and the said Kela is hereby empowered 10 ex'
tincuish such leases and to lease the land.
In witness whereof,
Signed by the grantors.
The plaintiffs case was that he had not re-
oeived support from the grantee, and the ex-
ceptions are 10 the refusal Of The Court 10 ad-
NIT evidence 20 this effect, and directing YER
dict tor the defendant.
The question for our consideration is whether
the deed creates an estate upon condition, with
forfeiture and night Of re-entry for a breach
thereof.
The doctrine Of conditional estates is dis
cussed on principle in RG,rsoA RS. LaLabitDas
q .Sel91l DiStrici &c. Allen l25. Bigelow c.
J. citing authorities SAYS: ''The usual aud
proper technical words 10y which an estate
(condiiional) is granted by deed, arc pro
vided, $50 as, or ''ou condition" So a con
dition in deed may be created by the use Of
the words "si. or "gH1i 81 co >fiagdi." and the
like. il clause of forfeiture or re- entry be ad-
ded. Co. Lit 2O4, A. etc. Dnke OF NorfOlk's
case, etc, Wood on Conveyancing, 200. In
grants from the Crown and IN dsvises 4 oondi-
tional estate may he granted " hen it is given
or devised for a certain purpose or with par
tiCular intention, or on payment of certain
sum But such words do not make
a condition when used IN deeds If private PET
sons. Ii one make q fOetlment in fee ca in
{ hfyD', al sfCc,uHi, 0d prOp9Si'fH and the like,
the estate is not conditional but absolute, not
These words must be conjoiugd
in deed with others giving right 10 re-en-
ter or declaring forfeiture in q specified con-
tiueency, OF the grant will not be deemed to
be conditional.
There is says the same authority difference
between a deed made in consideration Of an
act TO be done, or a service rendered, when the
subject matter Of the grant is in its nature ex-
ecutory, as an 1nnuity 10 lie paid for services
to be rendered, in which case the failure 10
perform the service relieves from the further
payment Of the annuity, and deed where the
estate granted has passed. The above case is
an exception.
Ordinarily the failure Of the consideration
Of grant Of land or the nOn-fuldlluent of the
purpose for which conveyance 10y deed is
made, will not OF itself defeat an estate, the
reason as given by Coke, being that 'the state
# the land is executed and the annuity execu-
DRY" A deed for the use Of land on condi-
ion Of support might be an instance of an ex-
scutory grant, reyocable on failure TO support.
The Chief Justice in the case from which We
rave cited, with some condensation aud change
II words, says an estate cannot be made de-
easible on a condition subsequent by con-
truction founded on an argument a5 iRooH-
'eRis1id only, or on consideration Of supposed
hardship or want Of equity. The Court in
his case held that grant Of land to 4 town
for buryiug place forever" in consideration
f love and affection, etc. is not grant upon
condition subsequent
In Ayer IS. Emery, II Allen, 81, deed
which was intended to provide for the support
( an elderly couple, drawn in much more full !
nd explicit terms than in the case at bar, was
eld not to create defeasible estate. The |
Tarranty deed Of the demandant's husband to |
be tenant was in consideration Of - dol |
ars paid, and in consideration of the fulfilmeut
certain agreements herein mentioned to be |
and fulfilled by the tenant, and fol- |
owing the description of the premises "and |
his conveyance is upon the consideration that |
and Emery, his heirs, executors and admin |
,trators, shall well aud truly perform all the |
greements, etc" Yet the Court, referring to |
be case above cited from Allen, by the same
hief Justice Bigelow, held that there being
o apt and proper words to create a condition,
0 clause Of re-entry or forfeiture, no provis-
N that the deed shall be void in 4 certain
aud failure to indicate any clear
tent to cause the estate to be defeated by
Jason Of any act or omission Of the grantee,
le deed could not be held as conditional, and
though in this case the Court thought it
light be said that the deed was Of equivocal
lpCrt, yet sit is perfectly well settled that an
tate on condition cannot be created by deed
lcert when the terms of the grant will admit
no ether reasonable construction" and fur
er say in conclusion: "a Court Of law can
u vary the rules Of construction to meet
ses Of hardship and injustice however rene
less they may be"
LdJdns IS. CARLTON. SO Ne, 2ll, was decided |
'on' reference to the reasoning and authorities
Allen, FIRST cited.
We should give favorable construction to
ords and phrases in the Hawaiian language, ]
lich may be claimed to be the equivalent Of ,
oessary technical words in English or Latin, ]
{ by no literally Of construction can we
d IN the deed before Us anything equivalent
the words OF condition required by the au-
orlties cited above. Such phrases as 'on
ndiion, provided If It shall so happen :
e found in constant use, and if resorted to !
Il remove any doubt as to the estate being
condition" Tiedman on Real Property. |
elton 2'Z: Nashburu, r. P, Oh. XIV, Sec
q 3. Z
words not in terms creating a con-
lou may create one if followed by clause !
erTing right Of re-entry in favor of the
lntoT IN case OF failure to carry out the in
ton thus expressed.
y ashburn, r. P. Bk. l, Oh. XIV, Sec. ). I,
r. P. Sec. 2TS.
JabdH rs. Carleton, 50 Ne. 2I3.
-he words Of this deed are ''in pursuance :.
our own wish and good purpose (manao
kali and because Of the consent of Kela to +,
c good care Of US IN respect TO all thing as
3 as We live, and they are followed by no q
use OF ENTRY. This must be treated as part X
he consideration. To hold It as a condition :,
I'D be supported by no authority and would
contrary to the well settled principles Of q,
Ie further observe that this deed has DO T
suage imposing the execution Of any sup
ed condition upon heirs and assigns. In o.
case the estate cannot be forfeited for NJ
breach Of the condition, after the grautor n
parted With the estate. N
iedman r P. Sec. 27s. =
/ Page rs. Palmer, Is y. H, 3s5 held that a.
rider to bind heirs or assigns to the per- M
lance Of conditions subsequent they must n
expressly mentioned in the condition. See "
7'ersgH Is. Simps07, As y. Il. as. an
sI7-lreid rs, Co5ioigh, Cush. LIS. M,
el'olrs RS. Bro,rH, - y. H. 364. 81
Kent's Com. $50. "a
syeriing to the language Of the deed in this 50,
, It viii be seen that the grantors made :,
support 4 matter Of personal confidence 81
.eir son-in-law. Their deed contains no -
is which can be construed to create a con- al
nal estate, by any even liberal and equit- HI.
construction, if that were allowable. but A.,
aw BY all the authorities, is that oondi- IL
annexed to estates going to defeasance in-
!. odious in The Law must lie construed
tly ~;
kent's Com. l29. ~ ~,