The Hawaiian gazette., 1894-02-20


certain land in the Ahupuse OF Hama
pepe. hauilos. Wsimes, hsusi. the
plaintiffs claiming title under lease
from Queen DowsSer hspiolsni.
The Circuit Court, Fifth Circuit,
iury being waived. found the follow
ing facts. which are supported by the
evidence: The Queen Dowsser
Kspiolsnl aas been for twenty years
and now is. by admission Of the part
les for the purposes Of this csse,
owner OF the premises in dispute: on
September 10. 1855. she executed 8
lease Of these premises TO the plsln-
tifs for ten years beginning January
l. 1892. 81 SD annual rental OF $500
PAYABLE ni-snnuslly; this lessee
was acknowledged and recorded:
about the time of Its execution, the
plaintiff paid $500 SIS six months
rent Hereunder. and on July II,
1892. paid $500 rent to the lessons
sgent and on January 10, 1893, $500
rent: at the time of the execution OF
this lessee. the defendant wss in
possession Of the premises under an
alleged lease from the then sgent
of the lessor, dated June %, 1881.
for ten years. and hsd possession
and paid rent hereunder for the
term. and ST Its expiration continued.
and still Is. in possession; on January
Is. 1898. he obtsined another Jesse Of
the same premises from the lessons
agent and psid rent Hereunder:
kspiolsni long before the date of the
first lease. was married 10 the late
King hslaksus snd continued in
coverture until his desth. January
-. 1921.
The Circuit Court held that under
our statutes "a married woman dur
ing her coyerture cannot Jesse her
resi- property for s term Of years
without the written consent of her
husband. snd that the Jesse by Queen
Dowsger hspiolsni TO the plaintiffs
is void" snd rendered Judgment for
the defendant.
The main question raised by the
exceptions is whether s woman who
married and scQuired lsnd before
the passage Of the Act "Relsting to
the Property snd Rights of Married
Women" (Ch. N. LsSs OF 1SSS)
could after It's passage execute with
out the consent Of her husband
valid Jesse Of such land. SO as 30
entitle the lessee 70 possession after
the death OF the husband
Prior to the passage Of this Act.
the husband ~bv virtue OF his msr-
risge" wss sthe virtual owner. except
otherwise stipulated by express
marriage conirsct. Of 81 movable
properly" and had during the cover
ture the custody. use snd usufruct.
rents. issues snd profits Of al pro-
perfy Of s fixed and immoysble
nature. belonging 70 his vile before
marriage, OF GocruIng 10 her after
msrrisge.n Civ. Code. Sec 12S6.
The wife was deemed for sll civil
purposes. 70 be merged in her hus-
band. and eiyilly desd" She did not
without his consent. unless other
wise stipulated by anterior contract,
hsve legal power 10 make contracts.
or ID alienste OF dispose Of property.
with certain exceptions not applicable
to the present case Ii See 12S1-
Under these Sections Of the Code
husband hsd 81 estate by marital
right for the Joint lives OF himself
snd his wife IN the lands OF his wife.
and s married woman was incapable
of contracting: her Jesse was absolute
IL void. as ST common lsE-
The Act Of 1855 provides. among
other things, IS follows:
Section / The real snd personal
property Of wonan shall, upon her
marriage. remain her separate prop
erty. free from the management
control. debts and obligations Of her
husband. and s married woman nsy
receive. receipt for, hold. manage
and dispose Of property, real and
personal. ID the same manner IS If
She were sole: provided. however.
that no sale OF mortgage OF her real
estate shall be valid without the
written consent of her husband
Section 2 4 married woman may
make contracts. oral and written,
sesled snd unsesled. IN the same
manner IS II she we're sole, except
thsf she snail Lot be authorized
hereby TO make contracts for personal
service without the written consent
of her husband. nor TO contract with
her husband
Section l3. Nothing in this Act
contained shall sfect any rights OF
property which have slresdy accrued
under any law heretofore N exist
ence"
Counsel for the defendant contends
that the lesse in question Is Eoio
notwithstanding this Act for the
ressoas thst 8 lease for term Of
wears Is s sale within the meaning OF
the proTiso Of Section l, and that the
Act applies only TO woman married.
or az least only 70 property acquired,
after its passage
The term sale may vel Dc held 10
incluie 5 Jesse under some ststuses,