Kauhane v. Kalu

• Decision Date: 15 August 1878
• Citation: 4 Haw. 144
• Parties: KAUHANE AND HUSBAND v. KALU.
• Court: Hawaii Supreme Court

4 Haw. 144

KAUHANE AND HUSBAND v. KALU.

Supreme Court of Kingdom of Hawai'i.

August 15, 1878

July Term, 1878.

ON EXCEPTIONS FROM CHIEF JUSTICE HARRIS-JURY BEING WAIVED.

Syllabus by the Court

THE DEFENDANT IN EJECTMENT disclaimed as to one undivided half of the land, and plaintiff admitted defendant to be entitled to the other half. An ouster was proved. The declaration averred that " the possession of defendant was in contravention of plaintiffs' legal right and to their damage of $1 000; "

HELD that the declaration was sufficient upon which to recover mesne profits from defendant.

J. M Davidson for plaintiff.

A. S Hartwell for defendant.

Harris C. J., Judd and McCully, J.J.

OPINION

JUDD, J.

It appears that although in the declaration the plaintiffs claimed the entire premises in fee, the fact was that they were only entitled to one-half, and were tenants in common with the defendant's wife, whose infant son held the widow's assignment of dower.

The title was admitted by the parties to stand thus, and the plaintiffs asked to be heard on their claim for damages.

The defendant then moved to dismiss the cause, on the ground that the declaration showed no cause of action for damages as against a co-tenant.

The declaration, as we have seen, claimed the whole land.

In Nahinai vs. Lai, 3d Haw. Rep., 317, this Court held that, on a declaration to recover the entire estate, the verdict being for a moiety only, judgment could be pronounced on the verdict for the moiety, although there was a variance between the allegations and proof. The Court there says that our statute would allow an amendment even after verdict, to make the declaration correspond with the verdict.

In the case at bar there was clear evidence of an actual ouster of the plaintiffs by the defendant, which is requisite in order to enable a co-tenant to bring ejectment.

The declaration avers that the possession of defendant is in contravention of plaintiffs' legal rights and to their damage of $1, 000.

This, coupled with defendant's disclaimer as to an undivided half, and plaintiffs' admission at the trial that defendant was entitled to one undivided half, would certainly be sufficient to charge the defendant with damages for the ouster, an actual ouster having been proved. But counsel for defendant argued at length the further question, that the allegation of damage is not sufficient to charge defendant with mesne profits, whereas the damages found by the verdict were mesne profits.

Silloway vs. Brown, 12 Allen 30, is cited by defendant. Here the Court say: " There is no reason why a tenant in common, rather than any other person put or kept out of possession of his estate, should be denied the election of suing in trespass and limited to a writ of entry, in which he could recover no damages for the injury to him by the expulsion or ouster. We are therefore satisfied that upon principle and according to the weight of authority, he may under such circumstances maintain trespass quare clausum fregit."

But in this case the Court held that the tenant was not liable in an action of replevin for taking all the crops.

In Badger vs. Holmes, 6 Gray 118, the Court said that " the facts do not show that the defendant has occupied the premises to the exclusion of the plaintiff, " and therefore held that the plaintiff could not recover for use and occupation.

In Livingston vs. Tanner, 12 Barb. 451, it was held that the New York Code, while it allows damages for the ouster and the rents and profits to be recovered in the same action, recognizes the distinction between them; and also in Larned vs. Hudson, 57 N.Y. 151 (1874), it was decided that a claim for damages for withholding possession of real estate does not include the rents and profits thereof during the time the possession has been wrongfully withheld; that is a separate and distinct cause of action.

We have a similar provision in our Code, Section 1144, which allows the uniting in one action " claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same." These last authorities (N. Y.) seem strong in favor of the defendant's position, that as the proofs must correspond with the allegations, and as there is no specific claim for rents and profits, the plaintiff cannot recover them as damages for withholding the possession of the real estate.

But in Massachusetts, in Raymond vs. Andrews, 6 Cush. 265,...