The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-05-26

80 deny the validity OF Mrs. McGrath' 5
| derfvative title This is followed in
/ Palmer V. BOwker, 100 Mass, 81. Bige-
/ low on EstOppel. y. 4O3, maintains the
doctrine that a tenant is not estOpped
| to allege that he was let into posses
sion under title from which the land
lords title was derived. The case from
which this doctrine is taken is Ford V.
Ager. > Huston &, COltman, 279. Here
the defendants did not seek to dispute
Inc plaintiffs title, but TO show an al
firmatiye title in themselves from which
any title plaintiff had was derived.
TO apply these principles to our case.
On the defendants statement Kaaiu-
Iaula was a tenant al will OF the heirs
OF Kaanaana lthe true owners of the
Land) when he made the lease TO the
defendants. The lease of the true own
ers to defendants terminated the ten
aucy at viii Of Kaaiulaula, and defend
ants may be permitted to show an af-
firmaive title in themselves from the
persons from whom their lessor, Kaaiu-
laUla, derived his title. Sc also Doe
i'd, Higginbotham ". Barton, II Ad. &
T., 3O7, and HolbTOOk Y. Young los
Mass, 50.
We think the defendants should have
been allowed to prove the facts ten
dered
The defendants also claimed that
they notified the plaintiffs that they
had ascertained that plaintiffs had no
title, and offered the possession of the
land TO them and abandoned the pos
session, exercising no act of ownership
thereon until they resumed possession
under their new lease from the real
owners. This was held by the court to
be insufficient to show a surrender, the
court holding that "a surrender must
be by mutual agreement"
This is not accurate. An eviction to
justify attOrnment may be actual or
constructive. And a constructive eVic-
ton is when a lessee in order to pre-
vent being actually expelled from the |
demised premises yields the possession |
thereof, in good faith, to one who has |
a title paramount TO that of the lessee |
and his lessor, and also a right to the |
possession, and this is a good /
defense to an action for rent brought by |
the lessor. Morse V. Goddard, 13 Met,
III. In such case, says Shaw, G. j.,
where tenant thus relies upon an
custer in pals, without judgment, he
has the burden of proving the validity
it and that he acted in good faith and
without collision with the party en-
-ering. Of course, a mere voluntary at
comment may not be pleaded. And in
general the tenant should yield the
possession to his landlord before taking
4 new lease from the real owner and
hereunder adversely to his
ormer landlord.
Herman, EstOppel, Secs. S69-871.
On this misdirection we think the de-
endants are entitled to new trial.
At the close of plaintiffs case the de-
endants moved for non suit on the
ground that it was not shown who were
he partners in Chin Wo Company
This motion was denied and exception
aiken. The action was brought upon
written lease against Chin Wo Com
any and others under the very names
n which the lease was made, executed
nd acknowledged, and the defendants,
Including Chin Wo Company, answered
nder the same names. The lease was
4 evidence. Under these circumstances
he motion was properly refused.
New trial ordered.
A. G.. NJ. Robertson for plaintiffs
Kinney & Ballou for defendants.
Honolulu, May 10, 1896.