Year: 1861

shown, as defense, in not taking the CHARGE of
property, but the agreement is not defective on its
lace, and all that either party can claim, as be-
tween themselves, Is that the agreement shall be
carried out as written. Unless third parties have
legally interfered to disturb the possession the de-
fendant will be liable for one half the moneys re-
ceived for the use of such wharf and premises
| do not regard it rs q legal cause Of demurrer
whatever force it may have by an answer for there
may be state of facts which would vary the re-
sponsibility of the defendant, and render survey
OF the premises actually occupied by him neces-
tary; but this does not appear on the face of the
Bill.


My opinion uTon the whole is, that the demur-
rers are not well taken. and therefore must be
oyerruled, with the exception of the fifth, and as
this objection is well l-tOunded, the demurrer must
be allowed, unless the plaintiff moves to amend
the Bill. 1t is true that the Bill is not carefully
drawn, still its averments are clear and l think
may he understood SO that the defendant will have
no difficulty in framing dsfnite and complete
answer.


C. @. Harris and r. G. Davis for complainant


A. B. Bates and j. Montgomery for defendant.
tlnctly the extent of the premises by the deserip-
ton, and they shall not dispute it. any more than


The complainant's counsel, C.. G. Harris, amend
ed his BILL but the counsel for the defendant took
an appeal generally to the full Court on the re-
manning points of the demurrer, which was argued
on the 22d March last. and on the 18th of August
instant the Court delivered Judgment on the de-
murrer follows:


CHIEF JUSTICE ALLEN The Court have carefully
considered the several causes of demurrer assigned
by the respondent to the bill, and are of opinion
thai the bill upon princiI les of equity pleading
Is deficient in not alleging that the respondent en-
tered into the possession of the premises In pursu
ance of the contract and occupied the same at the
time Of filing the bill, deriving profits therefrOm,
and that it is further deficient in not setting forth
distinctly the deriyative title of the complainant,
by virtue whereof she claims TO have inherited the
premises described in the contract. The remaining
causes of demurrer are overruled.


The demurrer therefore is sustained for the fore
going causes, with leave to the party to amend the
bill. The Court will only remark that they
gard it as a settled principle of law that party
cannot controvert the title under which he holds
estate, and this principle applies also to the IT,
tie of the heir, when the lessor dies during the
term. There are exceptions to this general rule,
as when the tenant was induced to accept posses
sion from his lessee, say from a mistake, or when
he has been deprived of possession derived frum his
lessor by one who has paramount title, and some
others. The question of heirship to the premises
remains open. The Court are of opinion that the
counsel have misapplied the general doctrine that
a demurrer to bill is sustainable when it is for





lege, electmeDt at common law.


This assumes the ground that there is o title TO
settle, ut in this the party is not permitted
to question the title under which he holds by yir-
tue of the contract. by the bil the rights of the
parties under the contract IN question, and not
q title adverse to the complainant.


JUSTICE ROBERTSON On udemurrer.-After care
fui examination and reflection, / concur in the
opinion of the Chief Justice, that the demurrer
must be sustained upon the two points indicated
by him. was at first inclined to give great weight
to another point raised by the respondent, as to
this being what is denominatsd in the books an
ejectment bill, and therefore not sustainable. But
upon reflection. regard that objection as nnsound.
Ii does not appear from the face OF the bill that
the title to the property is in dispute in this case.


But eomplainant's bill is clearly defective upon
the two points. which sustained by our present
ruling. The title set up by the complainant is
dervative title, and it is not set forth with sufi
cient clearness and fullness to compel an answer
from the respondent While it is true that neither
the respondent, If he took possession OF the prem
ises under the grant, nor any one claiming under
him, could he permitted to dispute the title of the
original grantOr, Kalaimoku, yet the respondent
may well dispute the right of any other party,
claiming an account of profits under the contract,
as upon title derived from Kalaimoku. The
seeks no discovery as to her title.
She knows what title she has got, and she should
have alleged il distinctly and fully, showing the
Derivation Of her title from Kalaimoku, through
w. p. LeleiOhOku and John Pitt Kinau In success
sion, stating in each instance whether the party
inherited by will. or otherwise, the premises de-
scribed in the original deed. The complainant has
not alleged in her bill that either of the parties
through whom she claims to have derived her title
inherited the particular property In question, out
IF which she seeks account of profits, and tho
Court cannot presume it.


The other objection is. that the complainant
1oes not alege that the respondent ever took pos
session of, or improved and derived profit from the
premises, that he was in possession at the time
The bill was filed. Unless it is alleged, and admitted
Ir proven. that the respondent took possession OF
the premises in pursuance of his contract with ka-
and that he used the premises, deriving
profits from their use. the complainant cannot have
. decree for account of profits. And unless It
s alleged. and admitted or proven, that respond
mt is now in possession Of the premises, how can
he complainant have decree requiring the res
oondent to surrender the possession to her!


IL seems to me that if the Court should 0yerruie
he demurrer, and compel the respondent~to an
'wer the bill as it now stands. he might answer 1t
n such a manner, keeping strictly within the rules
If pleading. that had the cause gone TO hearing
lp0n the bill and answer, the Court would have
ound it impossible to make decree in favor OF
he complainant, BY reason of the defectiyeness
# the pleadings, and would have been under the
necessity of dismissing the bill.


There were two other points raised by counsel
or the respondent, in support of the demurrer,
lpon which the Court does not find it necessary to
i've any opinion at present. Those points were,
irst. that Leeinhoku could not have inherited the
PREMISES in question from Kalaimoku, who is said
o have died in the year 1929, because by the law
# this Kingdom, at that time, Kalsimoku himself
ould not have had title transmissible by Inherit
nee. Secondly. that every person now claiming
tile to land in this Kingdom should set up title
ounded upon either a Land Commission award, a
Royal Patent, or the 1faheIe hook of le4S. Should
he complainant amend her bill so as to conform to
he present ruling of the Court, the respondent
will then have opportunity, If he deems it prop
r. to press those two points upon the attention OF