1 Haw. 61 (Haw.Super. 1852), Wirt v. Philips
|Citation:||1 Haw. 61|
|Opinion Judge:||LEE, CHIEF JUSTICE|
|Party Name:||P.A. WIRT AND KALAKAWAHA, EXECUTORS OF J. W. J. DAWSON v. THOMAS PHILIPS.|
|Attorney:||Mr. Burbank and Mr. Harris for the motion. Mr. Montgomery contra.|
|Case Date:||April 03, 1852|
|Court:||Superior Court of Hawai'i|
Syllabus by the Court
Lessor for a term of years cannot re-enter on the demised premises, for non-payment of rent, unless the lease contains a proviso for forfeiture and re-entry, upon non-payment.
This is a motion for a new trial based on the following case:
J. W. J. Dawson and the defendant Philips entered into a lease for a piece of land on the 12th day of November, 1849, which lease is in the following terms:
" THIS INDENTURE, made the 12th day of November, one thousand eight hundred and forty-nine, between Thomas Philips, of the Island of Maui, of the one part, and J. W. J. Dawson, of the Island of Oahu, on the other part, witnesseth, that the said Thomas Philips, for and in consideration of the rents, covenants, and agreements hereinafter mentioned and reserved on the part and behalf of the said J. W. J. Dawson to be paid, done and performed, hath granted, demised and leased, and by these presents doth grant, demise and lease unto the said J. W. J. Dawson, his executors and assigns, all that piece of land situated in Nuuanu Valley, Island of Oahu, and known by the name of Kaimuohena, with all and singular its appurtenances and privileges as set forth in the original grant.
" To have and to hold the said piece of land with its appurtenances and privileges whatsoever unto the said J. W. J. Dawson, his executors or assigns, from the date hereof, for, during, and until the full end and term of seven years, fully to be complete and ended; yielding and paying therefor, yearly and every year, during the said term, unto the said Thomas Philips, his executors or assigns, the yearly rental of one hundred dollars, in one payment, annually, the first thereof to be made on delivery of this indenture, and so on in advance for each successive year, to the termination of the said term or lease. Furthermore, the aforesaid J. W. J. Dawson, on his part hereby agrees to take the said piece of land as it now is, and at the expiration of the said term of seven years to leave all buildings and improvements whatsoever made and performed by him, the said J. W. J. Dawson, upon the aforesaid piece of land in reasonably good condition...
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