The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-03-04
An IMPORTANT DECISION.
Receivers of the Union iron Works
vs.. Widemaln.
DEFENDANT GETS Il EE e
DICT

A decision was u1eQ yesterday
BY Judd. c. j.. in the ACTION of
replevin brought by A. j Cart
wright, w. +. Allen and w O.
Smith, receivers, against FL A.
Widemann. The facts in this case
are briefly as follows
The Union Iron Works were in
corporated on the 1st day Of
March, 1890. On the same day
they leased for fifteen years the
premises subsequently, occupied by
them from the defendant. On the
18th dav of November Of the same
wear another lease was executed
bv the parties which included the
same premises and some addl-
tional land. This lease was
to 20 into effect January [,
1891, until which day the old
lease remained In force. On
the 29th Of December, 1890,
the Iron Works Co. executed a
mortgage to A. J. Cartwright, W.
Z. Alien and w. 0. Smith, as
trustees for the bondholders, Of all
It's property. The part stating the
trust contained a clause providing
that the company should retain
the use and occupation OF the
property and take the profits until
default, the company binding IT.
self to pay the rents On October
9Th, 81. another mortgage was
executed to the same trustees, TO
secure the payment Of q new issue
Of bonds. This mortgage reelted
IN its schedule Of property, the
lease Of November IL, 80, under
which the company was then hold
ing. On the 18th Of last January,
the defendant, Mr.. Wldemahn,
having made repeated demand for
the rent. notified the manager OF
his Intention to take action, and
on the 18th he entered and began
to distrain and remove certain
chattels. VIZ, four lathes, 3 brass
lathe, an emery wheel, 3 drill
press, q milling machine, q shap-
ing machine, q grinding machine,
and two cases Of tools. The dis
traint was completed on the morn
ing Of the 18th. On the afternoon
Of the 18th defendant was notified
20 desist, and on the 10Th, or the
day after the distralnt was COM
pIeted, receivers were appointed,
The Court holds, after an ex-
tended discussion, that the chattels
seized were not fixtures, and were
therefore such as may be legally
sIistrained for rent. Our statutes
do not create q lien ror rent from T
the beginning Of the tenancy, and /
if the mortgage takes .
possession before an actual dis /
traint by the landlord, the latter
loses his lien In this particular
case this was not done, the land T
lord having made his seizure before
the trustees took possession, and
So ID any case, the SEIZURE was
valid. Even though the above
contention were not correct, the
Court hold that the trustees, having
title to the property, though
not IN actual possession, wee IN
reality the tenants, so far as this
defendant is concerned. Being the
real tenants, they were liable for
rent, and so the distraint COM
planned Of was legal and proper
''The plaintiffs claim that the dis
tress was illegal because the title
to the property seized was in the
trustees and not in the Union Iron
Works, but by the same instru-
ment they were assignees of the
lease. They cannot claim the
property without the burdens Incl
deat thereto, one Of these is the
liability for rent"
The goods so far as defendant
was concerned, were those of a de-
faulting tenant"
Judgment for defendant.