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

would seem, will the covenant i'm
piled in the creation of leasehold
endure longer than during the con-
tinuance of the estate out of which
it is granted"
Thus in an old case (Ssoan VS..
.SearIes Dyer, 257a) tenant for life
having made lease by the word
demise, the lessee was after the death
of the tenant for life and before the
effiuxion of the term, evicted by the
remainderman and brought cove
nant against the executors of
the lessor, but it was held that
the covenant in law ends and de-
termines with the estate and interest
of the lessor"
In Adams VS.. Gibney, 6 Bing.,
CSC, Tindall, G. j., referring to Swan
VS.. Searles approvingly and also to
Bragg VS.. Wiseman ian old case and
not accessible to us) where covenant
is brought against the executor of
the husband upon lease by hus-
band and wife, it was laid down,
"That covenant in law shall not be
extended to make one do more than
he can, which was to warrant it as
long as he lived and no longer" In
adams VS.. Gi6ney, the question was;
tenant Tor life, remainder over, de-
misses to the lease, his executors, ETC.,
for the term of fifteen years, without
any express covenant for quiet en-
joyment; the lessee is evicted by the
remainderman, after the death of
the tenant for life, but before the
expiration of the fifteen years: whe-
Their the lessee can maintain an
action of covenant against the exc
cutor of tenant for life in respect of
such eviction" The learned Chief
Justice held that he could not and
adds, mo injustice can be occasion
ed to the lessee by this decision,
who must have learned from the
form of the reservation in the lease
that his lessor was no more than a
tenant for life. but was contented to
accept a lease without an express
covenant for quiet enjoyment"
In the case before US the law
gave the right to Bolster to lease
his wife's land for the term of his
own life. Why was he not so far
as the lessee was concerned a ten
ant for life? That was certainly
the quality and duration of his es-
tate, of which the lessee had notice
by the indenture itself. The law
implied covenant by the use of
words of demise on the part of
Bolster that the lessee should have
quiet enjoyment of the premises so
long as he (Bolster) lived and no
longer. Such is our opinion of this
case, upon reason and authority.
It does rot become necessary to
pass upon the other points in the
case, except to say that they were
properly overruled below. The es-
tate of Bolster not being bound in
law on the implied covenant, the adj
ministrator's promise does not
bind it.
The Judgment below is reversed,
and judgment may be had for the
defendant.
w. r. Castle for plaintiff; G..
Creighton for defendant.
Honolulu, April 14th, 1891.
In the Supreme Court Of the Ha-
Waiian Islands.
SPECIAL TERM, MARCH 80, 1891.
KANIkU vs.. j. III. MoNsARRAT.
BEFORE JUDD, c. j., M'cULLY, BIcKERToN
AND DOLE, j. j.
On exception to an order declining
to dismiss motion for a new
trial.
a bond by Defendant to Plaintiff for costs,
on a motion for a new trial, is a suffi-
cient compliance with the Statute. Sec
ll56 of the Civil Code.
OPINION OF THE COURT BY JUDD, c. ].
Having fully considered this case,
we hereby affirm and adopt the rea-
soning of Mr.. Justice McCully in
his decision rendered on the 10th
February last.
The plaintiff having recovered ac-
cording to his claim for land, but
without award of damages the de-