The complainant’s counsel, G. C. Harris, amended his bill, but the counsel for the defendant took an appeal generally to the full Court on the remaining points of the demurrer, which was argued on the 22d March last, and on the 13th of August instant the Court delivered judgment on the demurrer as follows:
Allen, C. J.The Court have carefully considered the several causes of demurrer assigned by the respondent to the bill, and are of opinion that the bill upon principles of equity pleading is deficient in not alleging that the respondent entered into the possession of the premises in pursuance 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 derivative 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 foregoing causes, with leave to the party to amend the bill. The Court will only remark that they regard it as a settled principle of law that a party cannot controvert the title under which he holds an estate, and this principle applies also to the title 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 possession from his lessee, say from a mistake, or when he has been deprived of possession derived from his lessor by one who has a 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 a bill is sustainable when it is for possession of land, the remedy being, as they allege, ejectment at common law.
*442This assumes the ground that there is a title to settle, but in this case the party is not permitted to question the title under which he holds by virtue of the contract. By the bill, the rights of the parties under the contract are in question, and not a title adverse to the complainant.
Robertson, Justice.On Demurrer. — After careful examination and reflection, 1 concur in the opinion of the Chief Justice, that the demurrer must be sustained upon the two points indicated by him. I was at first inclined to give great weight to another point, raised by the respondent, as to this being what is denominated in the books an ejectment bill, and therefore not sustainable. But' upon reflection, I regard that objection as unsound. It does not appear from the face of the bill that the title to the property is in dispute in this case.
But complainant’s bill' is clearly defective upon the two points, which are sustained by our present ruling. The title set up by the complainant is a derivative title, and it is not set forth with sufficient clearness and fullness to compel an answer from the respondent. While it is true that neither the respondent, if he took possession of the premises under the grant, nor any one claiming under him, could be 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 a title derived from Kalaimoku. The complainant seeks no discovery as to her title. She knows what title she has got, and she should have alleged it distinctly and fully, showing the derivation of her title from Kalaimoku, through W. P: Leleiohoku and John Pitt Kinau in succession, stating in each instance whether the party inherited by will, or otherwise, the premises described 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 of which she seeks an account of profits, and the Court cannot presume it.
The other objection is, that the complainant does not allege that the respondent ever took possession of, or improved and *443derived profit from the premises, or that he was in possession at the time the bill was filed. Unless it is alleged, and admitted or proven, that the respondent took possession of the premises in pursuance of his contract with Kalaimoku, and that he used the premises, deriving profits from their use, the complainant cannot have a decree for an account of profits. And unless it is alleged, and admitted or proven, that respondent is now in possession of the premises, how can the complainant have a decree requiring the respondent to surrender the possession to her ?
August 13th, 1861.It seems to me that if the Court should overrule the demurrer,- and compel the respondent to answer the bill as it now stands, he might answer it in such a manner, keeping strictly within the rules of pleading, that had the cause gone to a hearing upon the bill and answer, the Court would have found it impossible to make a decree in favor of the complainant, by reason of the defectiveness of the pleadings, and would have been under the necessity of dismissing the bill.
There were two other points raised by counsel for the re- • spondent, in support of the demurrer, upon which the Court does not find it necessary to give any opinion at present. Those points were, first, that Leleiohoku could not have inherited the premises in question from Kalaimoku, who is said to have died in the year 1829, because by the law of this Kingdom, at that time, Kalaimoku himself could not have had a title transmissible by inheritance. Secondly, that every person now claiming title to land in this Kingdom should set up a title founded upon either a Land Commission award, a Royal Patent, or the Mahele book of 1848. Should the complainant amend her bill so as to conform to the present ruling of the Court, the respondent will then have an opportunity, if he deems it proper, to press those two points upon the attention of the Court, in such way as counsel may'think expedient.