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


an action to recover rent for prem
over the head of defendant to on
decision and the dissenting opinio
interest to lawyers and the entire
In the Supreme Court of the Terri
tory of Hawaii. October Term, 1904.
M. ". Silveira VS.. l.. Ahlo. Petition
for Rehearing
Submitted January O. 1905. Decided
January 81, 1905.
FREAR, CD, HARTWELL AND
HATCH. il.
Rehearing-A rehearing is granted
upon ground duly presented by
counsel and not duly considered by
the court.
Opinion of the Court by Frear, CD.
Hartwell, j., dissenting.
The defendant asks for a rehearing
in this case decided ante D. y upon
the ground that questions decisive
of the case were duly submitted by
counsel and overlooked by the court"
and specifies the particular matters
on which he relies as follows:
First. That one of the questions in
the case On which he relied and which
he duly presented was that no rent
could be recovered after the first day
of June, A. d. 1900 because that the
plaintiff on that date granted a rever-
sion in the premises leased to one ).
p. Mendonca by lease in present., and
that by operation of law the right to
recover the rents thereupon passed to
said Mendonca and that the plaintin
could not recover from said date;
Second In case the rent did not
pass with he reversion still no recoV-
cry could be had because the landlord
having re-rented the premises the
amount received on the Mendonca rent,
being larger than the amount sued
upon. should be applied on the amount
due from the defendant, and no re-
covery could be had after that date;
Third. That the instruction of the
court that the issue in the case was
whether the lease had been surrend-
cred and cancelled, was misleading,
the witness Bolte having testified that
the lease was to be cancelled before
it was surrendered, but the case which
was submitted to the jury under the
instructions of both parties was case
of a surrender by operation of law and
not the surrender testified to by Bolte,
and that the instruction given by the
court Oh It's OWn lnOliOD, uuiy VANSPs-
ed to, stating to the jury that the is
sue was whether the lease was sur
rendered and cancelled was mislead-
ing, and that whist duly presented by
counsel it has been overlooked by the
court"
There appears no reason for granting
a rehearing upon the second and third
grounds, but We think there should be
a rehearing upon the first ground.
TWO EXCEPTIONS.
The action is one for rent, and one
question is whether the plaintiff can
recover rent from the defendant after
having made an overlease to one Men
donca Two exceptions are brought
here bearing upon this point. One Is
an exception to refusing to give an in
struction to the jury, and the other Is
an exception to the admission in evil
dence of a paper signed by Mendonca,
in which he certfies that he is aware
of the fact that the pieces of land COW
cred by his lease are now under the
leases describing them) to the de-
PENDANT; and further certifies that the
said lease to him was granted sub
ject to the aforementioned three
!, leases" to the defendant.
iarly to the second of these exceptions.
and the opinion of the court, so far
as it bears upon this document, relates
to the question of it's admissibility and
of it's bearing upon the question of sur
render which also was involved in the
case. The question raised by the ex-
ception to the refusal to give the in
struction received little or no atten-
ton by us and is not referred to in the
opinion. Defendants brief was per-
maps little blind upon these questions,
but on the whole, after further exam
nation, we are of the opinion that
both questions were duly presented
and that the question of the effect or
the document mentioned was not given
due attention. Accordingly rehear-
ing is granted upon the grounds as
stated in the petition, which may be
| stated in the form of the following
! questions: %. Would the words
Subject to the aforementioned three
4 leases" in a grant of a reversion
q (either by a deed which does or by a
deed which does not. expressly or by
Implication, contain a warranty of title
or right to convey prevent the subse-
quently accruing rent from going with
the grant? (2). II so, are there any
facts in the present case which would
Hprevent the new lessee, Mendonca,
from being entitled to such rent?
Robertson & Wilder for plaintiff.
Castle & wilmington for defendant.
DISSENTING OPINION OF HART
WELL, ].
BY the law of real property the grant
OF reversion which does not reserve to |
the grantor the subsequently accruing |
rent from existing leases OF the land |
carries with 1t the rent as one of the |
incidents of ownership of the land, |
something in the nature of rights, ease |
.nents. privileges and appurtenances |
belonging to and going with the land. |
The grantee in such case becomes the |
landlord OF the tenants holding such |
Outstanding leases and upon notice of |
he transfer of the title given to the /
enant either by the grantor or by the /