The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-20
OPINION OF THE COURT BY FREAR.

OPINION OF THE COURT By FREAR, J.
Eiectment to recover possession OF
certain land In the Ahupuaa of Hama
pepe, Kauiloa, Waimea, Kauai, the
plaintiffs claiming title under lease
from Queen Dowager Kapiolani.
The Circuit Court, Fifth Circuit,
Jury being waived, found the follow
ing facts, which are supported by the
evidence: The Queen Dowager
Kapiolani has been for twenty years
and now is, by admission of the part
les for the purposes of this case,
owner of the premises IN dispute; on
September 10, 1888, she executed
lease Of these premises to the plain
tiffs for ten years beginning january
/, 1892, at an annual rental OF S6OO
payable semi annually; this lease
was acknowledged and recorded;
about the time of it's execution, the
plaintiffs paid $500 as six months
rent hereunder, and on July IL,
1892, paid $500 rent to the lessons
agent and on January 1O, 1893, S3OO
rent; at the time of the execution of
this lease, the defendant was In
possession of the premises under an
alleged lease from the then agent
of the lessor, dated June 81, 1881,
for ten years, and had possession
and paid rent Hereunder for the
term, and at its expiration continued,
and still Is, IN possession; on January
is. 1893, he obtained another lease OF
the same premises from the lessons
agent and paid rent Hereunder;
Kapiolani long before the date of the
first lease, was married to the late
King Kalakaua and continued IN
coverture until his death, January
20, 1891.
The Circuit Court held that under
our statutes "a married woman dur
ing her coverture cannot lease her
real property for a term OF years
without the written consent of her
husband, and that the lease by Queen
Dowager Kapiolani to the plaintiffs
Is void" and rendered judgment for
the defendant
The main question raised by the
exceptions is whether woman who
married and acquired land before
the passage OF the Act Relating to
the Property and Rights of Married
Women och. NJ, Laws of 1889
could after its passage execute with
ont the consent of her husband a
valid lease OF such land, so as to
entitle the lessee to possession after
the death of the husband
Prior to the passage Of this Act.
the husband ''by virtue OF his mar
rage" was ''the virtual owner, except
otherwise stipulated by express
marriage contract, of all movable
properly" and had during the cover
ture 1.-The custody, use and usufruct,
rents, issues and profits of all pro-
perty of a fixed and immovable
nature, belonging to his wife before
marriage, or accruing to her after
marriage Civ. Code, Sec. 1886.
The wife was deemed for all civil
purposes, to be merged In her hus-
band, and civilly dead" She did not
@witbout his consent, unless other
wise stipulated by anterior contract,
have legal power to make contracts,
or to ALLEVIATE or dispose of property,
with certain exceptions not applicable
to the present case. Id. Sec. 1871
Under these Sections Of the Code
husband had an estate by marital
right for the joint lives of himself
and his wife in the lands Of his wife
and a married woman was incapable
of contracting; her lease was absolute
ly void, as at common law.
The Act of 1888 provides, among
other things, as follows:
Section /. The real and personal
property of woman shall, upon her
marriage, remain her separate prop
erty. free from the management
control, debts and obligations OF her
husband: and married woman may
receive, receipt for, hold, manage
and dispose of property, real and
personal, In the same manner as II
she were sole: provided, however
that no sale or mortgage OF her real
estate shall be valid without the
written consent of her husband"
Section 2. A married woman may
make contracts, oral and written
sealed and unsealed, In the same
manner as If she were sole, excep'
thai sIe shall not be authorized
hereby TO make contracts for persona
service without the written consent
of her husband. nor to contract viii
her husband"
Section 13. Nothing In this Ac
contained shall affect any rights o
property which have already accrued
under any law heretofore in exist
ence."
Counsel for the defendant contend
that the lease in question is voiC
Notwithstanding this Act for tn
reasons that a lease for term o
years Is a sale within the meaning o
the proviso of Section L, and that tn
Act applies only to woman married
or at least only to property acquired
after its passage.
The term sale may we'll be held t
include a lease under some statutes