Akiona v. Kohala Sugar Co.

5 Haw. 359, 1885 Haw. LEXIS 51

• Court: Hawaii Supreme Court
• Decided: May 26, 1885
• Status: Published

Opinions

Opinion op the Majority op the Court,

pee Judd, C. J.

We refer to the opinion of Mr. Justice Austin, below, for a statement of the essential facts of this case.

For reasons which will appear later we do not think it necessary to decide whether the defendant corporation was bound by the lease made by manager Johnson, or whether a ratification has been proved.

We think the rights of the parties in this case are to be determined by the instrument dated May 6, 1882, and called a “ surrender.” It was an agreement made in settlement of an action of ejectment brought by defendant against plaintiff for the possession of the premises in controversy. It recites that “ whereas the said party of the second part has commenced a suit in ejectment against the said party of the-first part to eject him from certain premises at said Kohala, the property of said party of the first part, which said premises are claimed by said party of the first part by virtue of a lease made to him by Henry Johnson, as manager of the Ko-hala Plantation, the validity of which lease is denied by said party of the second part; now, therefore, the said party of the first part, in consideration of the discontinuance and withdrawal of said suit, doth hereby surrender the said lease and relinquish all claim to said premises or any part thereof by reason of the said lease or by reason of any right or claim arising thereout or therefrom, and doth hereby admit all of the claim of the plaintiff, the Kohala Sugar Company, in and to the premises, and that he, said party of the first part, is tenant at will only of the same, and at any and all times, on ten days’ notice to quit, shall and will quit and surrender possession thereof to the said party of the second part, and will on demand pay up all arrears of rent and thereafter make payment of rent from time to time as demanded.”

It seems to us that the above instrument released the Kohala Sugar Company from its obligation to pay for the building erected by Akiona. That right arose, if at all, from the Johnson lease, for it was the only contract existing between them. The suit in “ejectment was brought since the corporation maintained that it was not bound by the Johnson lease. If it was brought because the rent had not been paid, as Mr. Chapin says, it is unlikely they would have allowed Akiona to remain on the land as a tenant at will paying the same rent. We think the effect of the whole testimony is that the object of the suit was to test the liability of the corporation on the Johnson lease.

Now, Akiona, in consideration of the withdrawal of the suit, not only “surrenders the lease” but relinquishes all claim to the premises on which stood the house which he had built, and therefore the house itself, “ by reason of the lease or by reason of any right or claim arising thereout or therefrom.” The right he claiméd, that the company should pay for this house, was a .right arising from the lease, and he relinquished it to the company as effectually as he relinquished his claim to possession of the land for the three months remaining of the unexpired term. • We gather this intent of Akiona from the whole instrument.

We think that the effect of this instrument was to create new relations between the parties and cancel all claims which Akiona might have had by reason of the Johnson lease. Otherwise, why should the corporation have discontinued its suit ? The Johnson lease had nearly expired, and it could hardly be that the only consideration moving to the corporation was the recognition by Aki-ona that his tenancy for the next three months was at will, paying the same rent. We think it is a fair inference from the surrender that Akiona thought he could not hold the company bound by the Johnson lease or he would not have consented to relinquish his rights under it. It is unphilosophical to say in the face of the surrender of the lease signed by Akiona, which recites that the company disputed the validity of that lease, that it left in force and effect an important and valuable covenant moving to Akiona from the company.

We think that Akiona should be held to be where his written deed places him — a tenant at will of the company subject to ten days’ notice.

But it is clear from the testimony that the company gave him the privilege of removing his building.

He had abundant time in which to do this. By all the authorities a tenant who has a right to remove his fixtures must do so before he quits possession.

Akiona cannot claim that he had not a reasonable time, for he stipulated that he would vacate the premises in ten days after notice to quit. We find no evidence that he attempted to move his building. Failing to exercise this privilege before his interest in the land expired, he could not do so afterward, because the right to possess the land and the fixtures as a part of the realty vested immediately in the landlord.

A. Hartwell, for plaintiff. W. R. Castle, for defendant. Honolulu, May 26, 1885.

Taylor’s Landlord and Tenant, Sec. 551.

The judgment below should be reversed and judgment no*W entered for the defendant.