The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-03-10

the condition. The tried jury waived and Judgment
rendered for the plaintiffs for the land and Sl6292 damages
Defendant brings the case to this exceptions
As found by the trial Judge breach OF condition does not
of itself work forfeiture 1t merely gives the ganor m
right to enforce forfeiture. This right he may waive
he desires enforce it reentry upon the land ordinarily
necessary in he is of possession 1T he Is already In
he make entry but enforce forfeiture
by what deemed equivalent namely, by continuing IN pos
with the intention of taking advantage OF the breach
and enforcing forfeiture In the present case the grato
already in possession of portion of the land lie had
entered and had held possession for at least several years. as
admitted without intention TO take advantage OF the
But he claims that subsequently he changed ms
intention and henceforh continued in possession for the pur
pose of enforcing forfeiture Whether there presumption
that possession by the ganor for the purpose of enforcing
forfeiture when there has been breach such purpose must
be manifested in by the gantor is question which
we need not decide If there is such presumption 1t IS
REPUTABLE and in this the trial Judge found that such pre-
sumption, if existed, rebutted by the evidence
The trial Judge found substantially follows The deed was
made in 1884. Plaintiffs afterwards took possession and paid
the weekly required by the condition until October 1887
and continued in possession until July 1891, when defendant
compelled them to leave the portion of the land dispute
few months later however, plaintiffs let part of this land and
collected rent from the tenant for perhaps the tenant
being in possession Defendant then resumed possession. In
July 1896 defendant brought assumpt for the weekly
and in January 1897 recovered Judgment for such
and interest for years back which Judgment
unsatsfed In May 1897 the present action of ejecmen
brought by plaintiffs for the portion of the land in possession of
defendant Defendant has any time the execution
OF the deed in any manner or form had possession of or made
entry upon the portion of the land in dispute Up to
the time of the Judgment IN the action admitted,
ne had not entered held of the portion in
dispute. the purpose of enforcing forfeiture He took
possession of that portion of the premises and held possession
thereof that time oey for the purpose of better securing
he thought the of the then due him. thus
recognizing the continued existence of obligation the
part OF the grantee to said sums Since then nothing
has been said done by him tending the slightest degree
indicate change of purpose intention his part and
continues the trial Judge believe upon all the evidence and
hnddeendans statement this trial the contrary nowith
andnghat the character of his possession has changed
and not with the intention of taking advantage of any
breach In regard to the presumption any, that
with the intention of enforcing forfeiture Judge says:
Assuming but deciding that there such legal presmp
ton find in this that rebutted by the proof that
defendant must be regarded having waived the forfeiture
there any"
The question whether the Judges findings fact are sup
ported by the evidence before although raised the
bill of exceptions its face For account of special crcum
stances necessary be forth stipulation was filed
whereby the parties waived any record transcript of the
evidence accepted the findings of fact by the trial Judge as
conclusive and limited the consideration of this court to the
single question whether upon those findings there had been
forfeiture In view of the findings of fact above we
cannot find matter of law that there had been for
feiture How far the Judge in making his more general
findings of fact influenced if ALL by his of the law
or how far those general findings conclusions
from his specific findings conclusions from
specific findings and other evidence say We
conceive that the evidence might have been such
his findings and in the absence of any showing the contrary
we must that SUCH We may add that the
submitted to briefs and that have had the
assistance which oral would be likely
of this kind.
The trial judge found of law and independent
ground for his decision that demand for performance the
condition, namely payment of the instruments necessary
prerequisite to the enforcement of forfeiture He found also
matter of fact that such demand had been made Whether
opinion the Judges view this question
of law need view of set forth
upon the first ground upon which was based
The exceptions overrued.
Kinney te Balou for plaintiffs
A. s. Humphreys for defendant.