The Hawaiian gazette., 1888-06-12

Opinion OF the Court per Judd, c. j.
This is an action of covenant tried
at the last October term of this Court.
The exceptions went over and were
finally presented TO the Court on
briefs in May, 1855.
1t appears that after the proofs had
closed and counsel on both sides had
addressed the jury, Mr.. W. R. Castle
for the defendant moved the Court to
dismiss the complaint for variance
between the pleading and the proof,
urging that the evidence showed mere
trespass by the covenantOr, and not
an eviction, which an action for
breach of the covenant for quiet en-
joyment would remedy.
The demised premises were the
property of defendants wife, and de-
PENDANT alone signed the lease. The
rent, $50 for three years, was paid in
advance. During the term for which
the rent was paid, defendant arrested
and impounded plaintiffs cattle, and
to release them plaintiff had to de-
post $3.50 pound fees, which were
finally, on appeal before the Circuit
Court in June, 1886, ordered TO be paid
by the defendant.
The evidence of the plaintiff sent
up in the bill of exceptions relevant
to this question is as follows: II first
had trouble in April, 1884. Defend
ants wife sent for me and went to
their house, and they said they
wanted me to surrender the lease. l
then received letter from Akaliilii,
ordering me to give up the lease at
once aud remove my animals. A few
days after they began to take up my
animals. No offer to return my rent
paid. The defendant said the lease
was to be broken because | was putting
other animals on the land for share
of the increase. When he took up
my animals and put them in the
pound | gave bond and they we're
released. A few days after and they
were again taken up. Noa said they
were taken up on the leased land
On the second seizure | paid for the
alleged trespass SIS for sixty animals,
and then took them to another land.
l advanced for pound fees at
first $3.50, and for bondS5. got back
this money at the trial before Judge
Judd at Wailuku."
The text book cited by defendant
counsel TO sustain his position is
Wood on Landlord and Tenant, sec.
357: ssIf the tenant enters into pos
session the covenant for quiet enjoy
ment is not broken by mere trespass
of the lessor" The text cites one
case, Mayor OF the City of \. Y. V.
Mabie, Is y. Y, Isl; ''It is not, how
ever, every mere trespass by the
lessor upon the demised premises
which will amount to breach of this
covenant. Although the cOvenaRtOr
cannot avail himself of the subterfuge
that his entry was unlawful, and be
therefore a trespasser to avoid the
consequences of his own wrong, still,
to support the action of covenant the
entry must be made under the as
sumption of title. It need not be
averred in the pleading that the
grantor acted under claim Of title
but II the character Of the act be such
as reasonably TO show that the de
PENDANT acted upon such an assump.
ton, the action will be sustained"
In the case at bar the evidence Ii
! overwhelming that the covenantol
| (defendantl went on to the demiseC
| land, asserted title, denied the validity
/ of his lease to the plaintiff, and re
peatediy arrested and impOunded hi
cattle, thus doing all in his power t.
accomplish an eviction, and by tn,
authority quoted by the DEFENDANT
counsel this is amply sufficient TO sus
| tain the action for breach of the i'm
/ piled covenant for quiet enjoyment.
For these reasons the exception
/ must be oyerruled-
We would add that a motion TO dis
miss case at law after issue Joined
for variance between Pleading AM
proof, or for any cause, eannet be en-
terGained; if the contention Of counse
/ for defendant had been correct, tn
proper motion at that stage wOull
have been for instructions to the jur,
to find verdict for the defendant.
W. A. Kinney for plaintiff; w. r
Castle for defendant.
Dated Honolulu. June 4, 1883.