The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-05-26


ing asserted title in themselves, this
estoppel now enures to the benefit of
defendants under their lease from the
true owners; also they do not seek TO
deny the plaintiffs title. but to show
an affirmative title in themselves, from
which any title the plaintiffs had was
derived; also they claim that the title
that kaaiulaula had. as tenant at
will, was terminated by the lease of the
true owners to defendants. The inter-
esting question as to whether this evil
denee was properly excluded is raised
for the first time in cur courts.
II is general and well settled rule
of law that tenant cannot dispute his
landlords title. Disputing the land
lords title means the setting up OF an
incompatible and paramount title to
defeat il. But there are exceptions TO
this rule, and cases arise where the
rule would seem 10 apply on first sight.
but which have circumstances which
defeat its operation. Taylor, l. & T.,
Sec. res. In Mays v Dwight. 50 Pa. ST.,
462, il was held that where fraud or de-
eeption is practiced by the landlord in
inducing the tenant to accept the lease,
or where the lease was made in ignor-
anee of a material fact, the tenant is
not estopped.
In People V. Hewlett, 20 n. Y, 574,
tenant successfully plead that his
lease was made to cover usury. "A ten
ant is not estopped to set up that his
landlords title is legally extinguished
or terminated so that it no longer ex-
lists" Ryder V Marshall. 90 Me-, 10.
Lamson V. Clarkson. 11S Mass. S4S.
is authority that a tenant is not estop-
ped TO show that his landlords title
was only an estate for the life of an
other, which expired during the term.
and thereby TO justify his not paying
rent to the landlord subsequently &C
erued.
Hillbourn V. Fogg ct al. 90 Mass. IL,
is TO a similar effect. 1t is there held
that a tenant is not estopped to deny
that since his own entry into posses
sion his lessons title has expired. either
by its own limitation. by the act of the
lessor or by eviction by title paramount,
and that when the estoppel is set up
by one claiming as assignee of the les
| sor, the tenant may show that such as
! singnment was Intellectual to pass the
| lessons title. In this case Mrs. Hillbourn
| occupied her room as a tenant at will
of Mrs. McGrath. McGrath made a
written lease of the room to Fogg, who
expelled Mrs. Hillbourn from the room.
/ But Mrs McGrath did not own the es-
tate and was herself tenant at will of
the owner, and the court, per Gray, j.,
held that she Mrs. McGrath) could not
make valid alienation which would
give Fogg a better title than she had
previously given to Mrs. Hillbourn.
Mrs. Hillbourn was held not estopped
to deny the validity of Mrs. McGrath' 5
derivatiye title. This is followed in
Palmer V Bowker, loo Mass, 81, Bige-
low on Estoppel. p. 4O3, maintains the
doctrine that 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 ".
Ager, Huston & Coltman, 279. Here
the defendants did not seek to dispute
the plaintiffs title, but to show an af-
firmative title in themselves from which
any title plaintiff had was derived
To apply these principles to our case.
On the defendants statement Kaaiu
laula was a tenant at will of the heirs
of Kaanaana (the 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
ancy at will of kaaiulaula, and defend
ants may be permitted to show an af-
firmative title in themselves from the
persons from whom their lessor, Kaaiu
laula. derived his title. See also Doe
i'd, Higginbotham " Barton, IL Ad &
E, 307, and Holbrook v Young, los
Mass, So.
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 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 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
q title paramount to that of the lessee
and his lessor, and also right to the
immediate possession, and this is good
defense to an action for rent brought by
the lessor. Morse v Goddard, 10 Met,
III. In such case, says Shaw, O. j.,
where a tenant thus relies upon an
custer in pals, without judgment, he
has the burden OF proving the validity
Of the elder title, the actual entry under
it and that he acted in good faith and
without cOllusion with the party en-
tering. OF course, a mere voluntary at
TORMENT may not be pleaded And in
general the tenant should yield the
possession. 10 his landlord before taking
a new lease from the real owner and