The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-05-12

the plaintiff was sued in ejectment
by third parties, to-wit, Opiopio, W.,
and others, for the possession of the
premises he held by virtue of the
said lease and extension. In the
meantime L. T. Valentine had been
appointed administrator of Bolster's
estate, and he requested plaintiff,
through his attorney, to defend the
suit and promised to make up to him
whatever expenses he should incur
IN so doing. The plaintiff in accord
ance with such request, assumed the
the defense of the case, which was
decided against him, and paid out
500 for counsel and S20S.70 upon
execution of the Judgment therein.
The administrator left the country
In April and defendant was APP
pointed administrator October Sd,
1890"
The case comes to US on the follow
ing points of law:
LIST. That the suit should have
been brought in the name of Wong
Leong & Company, they being the
lessees under the extension of the
lease, and not il the name of Wong
Leong.
I'd. That the estate of the de-
ceased A. S. Bolster is not liable, be-
cause the land leased belonged to
the wife and the husbands interest
therein ceased at his death, and be-
cause the custer upon which this
claim is based did not take place IN
til after the death of Bolster.
Sd. That if the husbands estate
is liable for any portion of the
amount claimed, the wife, Caroline
L. Bolster, should have been joined
in the suit as co-defendant.
4th. That this claim against the
estate of deceased is barred by law,
the same not having been presented
and made in time.
9Th. That Valentine as admins
traitor had no authority in law to
bind the estate to pay counsePs fee
or any other amount to Wong
Leopg.
The crucial question IN this case
is whether the estate Of A. S. Bolster
is liable-the land leased belonging
to his wife and the custer of the les
see not occurring until after Bolster's
death. At the time the lease and the
extension thereof were executed, the
law gave Bolster the right to rent
with her written consent, his
wife's land for any term not ex-
ceeding the term of his natural
life" The lease is between
A. S. Bolster of the one part and
Aho of the other part, whereby Boil
ster demises and leases, ETC., the land
to the said Aho. 1t concludes with
these words, land l, Caroline K.
Bolster, wife Of the said A. S. Boil
ster, holding the above leased prem
Uses in my own right as the heir at
law of Kekoahaleole, deceased, the
patentee, hereby consent to the
terms and conditions of the above
lease. Witness our hands and seals,
etc" The extension is made to
Wong Leong & Co. "the assignee Of
the within lease" The lease, then,
was made in strict accord with the
statute and appraised the lessee of
the extent of Mr.. Bolster's title.
1t is fundamental law that cove
nant for quiet enjoyment may be
implied from words of grant in a
deed and of demise in a lease. The
action is brought not in covenant
against the administrator, but in
assumpsit upon his request to the
lessee to defend the suit (which re-
suited in his eyiction) and his lad
ministrator's) promise to pay the
damages, costs and counsel fees IN
case the suit was lost. But it is
admitted that the administrator
could not bind the estate by his
promise unless the estate was in
law Liable. We therefore come back
to the primary question, Is the es-
tate of the husband bound after
the husbands death by an implied
covenant in a lease made by the
husband, of his wife's land?
There is no doubt that cove
nant for quiet enjoyment runs with
the land, whether any estate re-
mains in the covenantors or not"
Quoted in the decision appealed
from, Campbell VS.. Lewis, B. & A.,
1872. But in this case there was an
express covenant by A. and the
Court held A (who had possession
of the premises for period Of
years. liable on his covenant to b,
at the suit of c, to whom B had
assigned the lease, G was evlcted
by J. S., the lessor, for breach
committed by a previous to the
assignment to B. The Court sus-
tanned the action against A
upon the covenant for quiet enjoy
ment on the ground of privity of
estate between A and G. The policy
of the law is not to extend implied
covenants.
T. Do-.lo on Cioxaao,,{o Eos. Tell.