The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1905-02-03

Uses owned by plaintiff, but leased
e Mendonca. The full text of the
IN, as involving questions of great
community, is here presented:
by the grantee. After such notice he
is released from obligation to the gran
tor created by the lease In respect of
the payment of rent, while the grantor
Is released from obligation under the
lease to the tenant, excepting such La
bilty as may have been incurred by
him in consequence of a breach of an
express or implied covenant of title.
Such being the law, conveyances of
land would be subject to its provisions
and requirements, whether therein ex-
pressed to be so or not, although n
conveyance which does not mention
that 1t is made subject to existing leas-
es would be regarded as giving the
grantor the right to take immediate
possession of the land and as implying
that at the time of delivery of the deed
the grantor was himself in possession.
having the right to place his grantor
on the land. If conveyance of land in
fee contain an express covenant or
words which imply covenant on the
part of the grantor that he is in pos
session and has right to give pos
session to the grantee the expression in
the conveyance that 1t Is made subject
to certain leases would modify such
expressed or implied covenant, and
would mean nothing more than to re-
4, lease the grantor from an obligation
IN civ mi IN
grantee.
RULES OF LEASES.
! AS between grantor and grantee the
same thing could be effectively shown
and accomplished by written state
ment by the latter to the former, or by
a separate written agreement between
the two to the effect that the grantee
took the conveyance Subject TO" EXIT
, ing leases. 1t might he question per-
haps whether the using or a separate
! Instrument to accomplish this object
would properly be regarded as showing
an intention on the part of the grantor
and grantee to accomplish any more
than this object. The above rules ap-
ply as well to a grant by lessor of a
| longer term of lease than one which is
already made and which is still unex-
pired. The new lessee would have the
same reiation as a grantee would have
to the earlier lessee.
| In the present case the lessor, the
| plaintiff Silveira, made to ]. p. Mem
, donca lease for longer term than
| his outstanding leases to the defend
ant Ahlo, and at the date of Mendon-
cas- acknowledgement of the lease to
himself he gave to the plaintiff his
written statement to the effect that he
knew of the hhlo leases and took his
| own lease subject to. them. Neither
Mendonca nor Silveira informed Ahlo
of the transaction or notified him that
| Mendonca would claim or be regarded
by himself or by Silveira as entitled to
subsequently accruing rent. After the
execution of the lease to Mendonca,
Silveira, by his agent, Bolte, who was
also agent of Mendonca, continued to
demand of Ahlo the rent on the Sill
veira leases. The lease to Mendonca
was placed on record. but his written
declaration was not recorded. Boltes
| continuing to demand of Ahlo rent
upon the Silveira leases to him may
trary, be presumed to have been done
In conformity with the understanding
between Silveira and Mendonca as to
the meaning of the written declaration
of the latter. AS the claim of rent
from Ahlo was a matter solely between
Silveira and Mendonca, they had a
right as between themselves to place
this meaning, If they wished to do so,
upon Mendonca's declaration, although
II may not be the meaning which in the
absence of construction of il by the
parties the law would place upon 1t.
PAYMENT A PROTECTION.
Payment of rent by Ahlo to Silveira
would have protected him from a claim
by Mendonca, and a payment now
made in the absence of any claim by
Mendonca would seem to protect him
against the latter On the other hand,
payment of the rent to Mendonca
made by Ahlo would protect him from
claim by Silveira, on the theory that
unless otherwise notified by Silveira
Ahlo would have had the right to treat
the declaration as merely a statement
of the general rule of law applying
to conveyances made subject to exist
ing leases. The law and the facts in
this case were before the court
as far as l can say and were
fully recognized and considered in its
decision of which the defendant asks
rehearing. 1t is true that the ques-
ton argued by the defendant concern
ing Mendonca's written declaration
was confined to its admissibility, and
that the conclusion of the court nec-
essarily went to the extent. not only
of declaring 1t to be admissible, but
of passing upon its effect in law as
equivalent under the circumstances of
the case to an agreement between Sill
veira and Mendonca that the latter.
until he got possession of the land
leased to Ahlo. would not claim the
rent from Ahlo. AS far as / know or
can infer. this construction was placed
uron the written declaration deliber-
ately and without ignoring or failing
to give full consideration to the law
upon the subject.