The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-06-16

declarations above made" ii keia
mau olelo maluna'') that is, the con-
veyance of the land. 1t is in effect
a warranty, and the title Afterwards
acquired by those succeeding to the
title in Kaakopua will enure to the
benefit of the grantee Kalaikuew
and those claiming under her.
Rawle Gov. for Title, 9th ed, :
sec. 255 and notes, 2 Hermann on
estoppel, secs. 642, 646, 647; Van
Rensselaer, VS.. Kearney, IL How
ard 297. The defendant was not a
purchaser without notice, for he
took this conveyance while the liti-
CATION in regard to this land was in
progress, it being in fact dated
April 10th, 1891, the first day of
the trial. Having held that the
prior record of the deed of Keeliko-
lani to Kalahoolewa did not give it
priority over her deed to Kalaikue-
wa, it is difficult to see how the
deed of the successors to the title of
Keelikolani through Kalahoolewa
could have any effect as against Ka-
laikuewa.
The last point to be considered is
the refusal of the court to charge
the jury that the plaintiffs cannot
maintain joint action in ejectment
or recover any damages herein be-
cause their rights are several, they
being tenants in common.
BY the rules of common law they
could not join in ejectment, because
the interest of each is separate and
distinct, and as the subject of the
action is the whole estate, it cannot
be said that either party plaintiff is
interested In the whole estate. But,
says Freeman in his work on Co
Tenancy and Partition, sec. 34l
"the rules of the common law in re.
gard to tenants in common suing
for possession of the lands of the CO.
tenancy have been so modified in
most of the States of the American
Union as to permit the tenants In
common to sue jointly wheneve
they choose so to do. This modifi
cation has generally resulted from
statutory enactments. This, how
ever, has not been universally thu
case, for there are decisions in
which, independent of statutor.
} considerations, the right of tenant
} in common to make joint demise
and the consequent right of thei
lessor to maintain ejectment, hav
been vigorously sustained The au
J thorities cited are Jackson VS.
: Bradt, 2 Gaines 173; Nixon VS.
Potts, l Hawks 40; Hoyle VS.
Stow, 2 Devereaux 32l; Barrow'
l Lessee VS.. Nave, 2 Yerger 22S; A
, ford VS.. Dewin, l New. I'll, an
Hillhouse VS.. Mix, Root Conn
/. GAG. Unfortunately none of thes
; cases are accessible to us. But GU
/, records will show that the practic
: of tenants in common suing II
t gether in ejectment is universe
t In fact up to Nahinai VS.. Lai,
e Haw. 317, a tenant in common WI
# liable to nonsuit if he did not joi
e all his co-tenats as parties plainti
with himself. BY that decision
e followed by I'm Wong VS.. Kan Oh
! Haw. 225, and other cases, tel
# ant in common may recover
! ejectment according to the extel
e of his title. In Holelua VS.. Kap
= Haw. 800, the plaintiffs, sever
of them, had claimed the land
It tenants in common, and the cou
held that one of the plaintiffs w
$ estopped by the judgment in the
e faqor to deny the title of the 0tht
S in subsequent action.
q We think that to avoid multi
If plicity of suits, tenants in commo
j. should be allowed to sue jointly
:, ejectment if they wish so to do.
a judgment in such an action wou
8 be bar to a separate action by OF
It of them. We therefore overru
+ this exception and the verdict mu
e stand.
e Thurston & Frear and A. Ro:
e for plaintiffs; Ashford & AshfoI
!. for defendants.
. Honolulu, Feb. 81, 1892.