The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-05-14

as to existing rights rather than as condition precedent to
the existence of the right ITSELF regarded by the parties
in the present We know of authority for the
exercise of jurisdiction by of equity like the
present The remedy naturally law and has always been
pursued in the law
The decree appealed FROM dsmssing the bill, is affirmed
with
Kinney d Ballou for plaintiffs
Geo. A. Darts, for defendants
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS,
MARCH TERM, 1897.
JONATHAN sPOONER a. JULIA S. RICE and WILL
LIAM B. RICE her husband
EXCEPTIONS CIRCUIT CouRT, FIRST CIRCUIT.
SUBMITTED APRIL l. 1897 DECIDED APRIL 80 1897.
FREAR AND WHITING, j., j. T. De Bolt, ESQ.,,
BAR IN PLACE JUDD, CD,
grantor from portion of the premises
conveyed by poll action assumpsit
promise implied
acceptance of and condition
therein that the grantee should certain sum weekly to the
during his life.
OPINION OF THE COURT BY FREAR J.
The plaintiff executed and delivered consideration of love
a deed dated October 15 1884 of
tain parcel of land to his daughter the principal defendant
for her e remainder her heirs pon the express cond
ton that the said Julia Spooner Rice shall well and truly pay
to he granor the of Five 90 Dollars each and
week during the of my natural life" The said defend
ant accepted the deed and paid the plaintiff the weekly
October 1887 since which date no such payments have
been made The plaintiff brings this action of assumpst
the weekly payable since that date and interest The Cir
cult Court having heard the jury waived ordered udg
ent for the plaintiff against the principal defendant for the
of 1880 being the of the amounts that became pay
able within six years preceding the of
this action and for interest and COSTS and ordered Judgment
for the other defendant The here defend
ants exceptions.
The principal question by these exceptions whether
the trial Judge erred in refusing admit evidence offered
by the defendants tending show that 1889 the
tiff had been exclusive unlawful possession of part of the
land and had by force elected and kept the from
the 1t is agreed that lawful entry made upon
the land by the plaintiff for the with the effect of
determining the for breach of the condition The
defendants rely solely the rule applicable to the relation
of landlord and that eviction of the by the
landlord from portion of the demied premises the
from the payment of portion of the rent during the
continuance of the eviction That rule however
where the relation of landlord and tenant exists and
then extends only the for not to other
Morrison Chadoick 7 G. B. 266. In the pres
the relation of landlord and created
There words the deed tending to show that that ea
ton intended be created The deed ordinary deed
of conveyance the operative words of which gve grant,
bargain sell and convey The consideration love and afec
ton The habendn the grantee for her fe remain
der her heirs Nor the provision for weekly payments
the nature of reservation profit issuing of
the land for the of the land 1t rather
the of provision for additional consideration for
the conveyancen the form of condition. If the granor
has ousted the grantee from portion OF the premises or tres
passed thereon her remedy by of defense to
action for the weekly but by other action, such
eectment trespass
An exception taken the allowance of interest
each weekly from the day became DUE Counsel did
touch upon this point in this either argument
brief We know of sufficient for sustaining the
exception.
Before argument the exceptions plaintiffs counsel moved
this strike the from the Calendar the grounds
that the bill of exceptions did appear have been presented
by counsel the trial Judge for allowance to have been
lowed be ter witt
be prescribed by and rule of The court reserved
-. Dea