Coelho v. Fernandez
Decision Date | 19 June 1963 |
Docket Number | No. 4218,4218 |
Citation | 46 Haw. 578,384 P.2d 527 |
Parties | Belinda COELHO v. Adam FERNANDEZ. |
Court | Hawaii Supreme Court |
Syllabus by the Court
1. When, in an ejectment action, each party claims title to the whole, and the court finds that plaintiff and defendant are cotenants, the court should not enter judgment dismissing the complaint as plaintiff is entitled to judgment to the extent of the title proved by him.
2. An appellee may uphold a judgment on grounds other than those of the trial court.
3. One who is a cotenant of record has no duty to speak out against improvements authorized by her husband, the other cotenant, and in an action in which her son-in-law claims the whole of the property alleging that the husband made a parol gift of the land, she is not estopped because she knew of the improvements and did not assert her title at the time they were made.
4. A defense of equitable estoppel in an ejectment action, based on an alleged parol gift of the land involved, in reality is an assertion of a right to specific performance.
5. One who in an ejectment suit sets up equitable estoppel based on an alleged parol gift of the land must establish his right by clear, definite and unequivocal evidence.
6. If, during the lifetime of a husband holding real property in joint tenancy with his wife, there arose a right to specific performance based on a parol gift of the property made by him, this effected a severance in equity and the gift may be enforced after the husband's death as to his interest in the property.
7. When the trial court held in favor of one alleging a parol gift of land on which to erect a home, but this court finds error in that the claimant did not show by clear, definite and unequivocal evidence essential particulars as to the arrangements between the parties, this court upon further finding that a complete new trial is not justified, nevertheless in a proper case will give defendant an opportunity to establish an equitable lien for unjust enrichment.
8. If during the lifetime of joint tenants, husband and wife, the acts of the husband were such as to give rise to an equitable lien for unjust enrichment in favor of one performing work and labor on the premises in reliance on an unenforceable parol gift of the land, the equitable lien will survive the death of the husband.
Frank D. Padgett, Honolulu, (Enos Vincent, Burnham H. Greeley, Honolulu, on the brief; Robertson, Castle & Anthony, Honolulu, of counsel), for appellant.
Thomas S. Ogata, Wailuku (Ogata & Ueoka, Wailuku, of counsel), for respondent.
Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZURA, JJ.
Plaintiff-appellant, alleging her ownership of a lot together with a dwelling house thereon occupied by defendant-appellee, brought this action to oust defendant, to obtain a determination against defendant's adverse claim, and to recover the reasonable value of use and occupancy from and after December 1, 1959 pursuant to a notice to vacate given October 27, 1959, which required that defendant vacate on or before November 30, 1959.
The property involved is situate at Wailuku, County of Maui, and the suit was brought in that county.
It is undisputed that the lot was deeded on November 4, 1948 to plaintiff and her husband, Joseph Coelho, as joint tenants, pursuant to an agreement of sale dated March 11, 1947. According to the evidence plaintiff's husband joined with her in giving the notice to vacate on October 27, 1959. He died November 14, 1959 before the action was brought. Plaintiff asserts title as the surviving joint tenant.
In defendant's answer he denied plaintiff's title and as an affirmative defense set up equitable estoppel. He alleged that in January, 1953 and prior thereto the deceased, Joseph Coelho, 'with the knowledge and acquiescence of the plaintiff,' invited defendant and his wife to build their home upon the land and promised to convey 'the said land' to defendant and his wife; that so induced, defendant caused the erection of a dwelling house and certain other improvements, and with his family took up residence on the land in August, 1953.
Defendant is the son-in-law of plaintiff. He married Katherine Fernandez, the daughter of plaintiff and Joseph Coelho, on June 20, 1931. Defendant and his wife have six living children of whom three are minors. Two sons and a married daughter were living with defendant on the property at the time of the trial.
Katherine Fernandez testified that she had not lived in the house since October 25, 1959. At the time of the trial she had a divorce action pending. She disclaimed any interest in the property, testifying that her father 'was trying to help us out, we don't have to pay rent,' and that they were to live in the house until her parents needed it. She was not a party to the action.
The trial court held that the case was governed by Motonaga v. Ishimaru, 38 Haw. 158, and found in favor of defendant 'that Mr. Coelho promised that defendant and his wife were to have this land; that in reliance on such promise the defendant expended much work and labor and some sums of money in clearing the land, building a home and making improvements thereto, that it would be inequitable now to allow plaintiff to eject him from these premises.' After finding that a one-half interest in the land was 'subject to the right or interest of the defendant and his wife,' the court further found that there was 'not sufficient evidence to establish any estoppel against the interest in said land which the plaintiff has in her own right,' but that she 'has no interest in such house and improvements.' 1
There was evidence of the rental value of the premises as improved, but no evidence of the rental value of the land itself and plaintiff declined to offer any. The omission from the judgment of any award for use and occupancy thus is explained. Nevertheless the form of judgment clearly was erroneous, apart from the correctness of the underlying findings and conclusions. The judgment dismissed the complaint and failed to set out the extent of the respective interests. Defendant's answer had denied plaintiff's title, and plaintiff was entitled to judgment to the extent of the title proved by her even if the action be viewed purely as an ejectment action. Moranho v. De Aguiar, 25 Haw. 271, 272, and cases there cited; Medeiros v. Koloa Sugar Co., 29 Haw. 43, 46; Fong Hing v. Yamaoka, 31 Haw. 436, 442. Moreover, plaintiff's second count specifically sought a determination of the title, while the first count sought ouster of defendant and recovery for use and occupancy.
In defense of the judgment defendant contends that plaintiff is estopped to assert any interest in the property, even the one-half interest in the land as to which the court below ruled in her favor. There was no cross-appeal by defendant, but we will consider the point since defendant was not aggrieved by the judgment and could not appeal. It is an instance of appellee seeking to uphold a judgment on grounds other than those of the trial court. See Inter-Island Resorts v. Akahane, 44 Haw. 93, 352 P.2d 856; Id., 46 Haw. 140, 377 P.2d 715; but see Ulrich v. Hite, 35 Haw. 158, 188.
As seen, the trial judge found that 'there is not sufficient evidence to to establish any estoppel against the interest in said land which the plaintiff has in her own right.' This finding is supported by the record. Defendant's argument is based principally on one statement by plaintiff on the stand that 'the house was given to them, both of them if they agreed to stay together.' At other points she made it clear that she was talking about occupancy until the place was needed by the owners, not conveyance of title. Though defendant testified he told plaintiff that Mr. Coelho was giving the property to him and his wife, and plaintiff told him 'that is nice,' plaintiff denied this and in an earlier suit in the district magistrate's court defendant himself testified plaintiff made no promise at all.
As to defendant's further contention that plaintiff is estopped because she knew of the improvements and did not assert her title, none of the cases cited is applicable. Plaintiff's interest in the property was of record. Cf., De Freitas v. Coke, 46 Haw. 425, 380 P.2d 762. Plaintiff, as a cotenant with her husband, had no duty to speak out against the improvements, which beyond question were authorized by her husband and were not the work of one who in her eyes was a trespasser. Whether plaintiff takes her half of the improvements without any duty of contribution is a different matter, which on the view we take of the case does not concern us at this time. See 14 Am.Jur., Cotenancy, § 49; 48 C.J.S. Joint Tenancy § 8.
Plaintiff, while objecting to the form of the judgment, further contends, first, that there was no severance of the joint tenancy during the lifetime of Joseph Coelho and defendant is in the same position as a judgment creditor of a deceased joint tenant who has taken no steps under the judgment before his death; second, that in any event defendant did not meet the burden of establishing his equitable right with the requisite 'clear, definite and unequivocal evidence,' citing Poka v. Holi, 44 Haw. 464, 472, 357 P.2d 100.
As to this last contention, defendant counters with the proposition that Poka was a specific performance suit. Conceding that defendant has the burden of proof under his affirmative defense of equitable estoppel, he nevertheless contends that such burden may be met by a mere preponderance of the evidence. He further contends there was a severance of the joint tenancy.
We hold that defendant's burden of proof was the same as it would have been in a specific performance action brought by him. Defendant's affirmative defense of equitable estoppel in reality is an assertion of a right to specific performance. In point are Kidwell v. Godfrey, 14 Haw. 138, and Kamohai v. Kahele, 3 Haw. 530, holding...
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