HC TULIFUA TINI P. LAM YUEN,
Senior Matai of the Tulifua
Family for himself
and on behalf of the TULIFUA FAMILY, Plaintiff,
v.
TALAE TUITELE and HEIRS OF UAINE TUITELE,
TOM HO CHING, and PATRICIA HO CHING, Defendants.
High
Court of
Land
and Titles Division
LT No. 10-93
July 13, 1998
Before
Counsel: For Plaintiffs, Afoa L. Su`esu`e Lutu
For
Defendants, Gata E. Gurr
[1] When certain land has a valid title registration,
the law conclusively presumes either that the procedures for alienation of
communal land were followed or that the land was not communal.
[2] When the title to land is properly
registered, all other claims of ownership are forever precluded.
[3] The court will engage in a de novo
review of the Territorial Register’s compliance with statutory requirements
only when there is a facially defective record of the registration, proof of a
fraudulent registration, or other compelling grounds.
[4] The proponent of a title registration must
submit a properly performed survey with the offer of registration.
[5] When litigation arises out of an objection
to an offer for registration of title to land, lapse of time between the survey
and the registration offer raises a question of fact whether rival claimants to
the particular and adjacent lands received fair notice of the intended survey.
[6] A concluded registration proceeding carries
a presumption of finality.
[7] Where certificate of registration of title
was not facially invalid, Court could conclusively presume that notice of
intended survey was properly [2ASR3d206]
given and that the survey was performed contemporaneously and in accordance
with A.S.C.A. § 37.0102.
[8] Where affidavit of posting mentioned
“Administration building” instead of courthouse, described only one public
place posting in village nearest the land, was attested to at beginning of
posting period, not end, and where jurat was never
signed by Territorial Registrar, it was facially defective.
[9] Because Territorial Registrar
is obligated to register a land title only when all the statutory requirements
are met, Court could not conclude that required notices were not properly given
where evidence consisted of witnesses simply testifying that they had never
seen the notices.
[10] Once land is registered as individually
owned land, the court cannot treat the land as communal land simply because the
family group associated with the land occupies the land communally.
[11] Heirs of individually owned
land, own the land as tenants in common.
[12] A tenant in common possesses
an undivided possessory interest in the entire area
of the land and an equal say in the uses of the land.
[13] A lease of land held by
tenants in common is not valid unless each of the owners either consented to,
gave the lessor express or apparent authority to
enter, or ratified the lease transactions.
OPINION
AND ORDER
Plaintiff HC Tulifua
Tini P. Lam Yuen (“Tulifua”)
brought this action to determine whether certain land is communal land of the Tulifua family or is individually owned land of defendant
Heirs of Uaine Tuitele
(“the heirs”). Both Tulifua
and defendant Talae Tuitele
(“Talae”), on behalf of the heirs, base their claims
on original and continuous occupancy. Tulifua also
objected to registration of a proposed lease of a portion of the land by Talae to defendants Tom Ho Ching
and Patricia Ho Ching (“the Ho Chings”). The case was tried on December 18 and 19,
1997. Tulifua
and Talae were present with their counsel throughout
the trial.
Discussion
The land at issue (“the land”) is
located in the
[1-3] The evidence in the record could support either a
claim of communal land or a claim of individually owned land at the time of the
title registration. However, if the
title registration is valid, there is no need to reach this issue. When certain land has a valid title
registration, “the law . . . conclusively presumes either that the procedures
for alienation of communal land were met or that the
land was not communal.” Ifopo v. Siatu`u, 21 A.S.R.2d 24, 27
(Appellate Div. 1989). Therefore,
we will first resolve the issue of whether the title registration was valid. The overriding policy of the statutory
registration process is to permanently secure titles to land.
[4] Tulifua challenges the Territorial Registrar’s record of the
registration in two facial respects.
First, Tulifua cites the 18-year delay after
the land was surveyed before Talae offered the land
for registration on May 10, 1989. The
proponent of a title registration must submit a properly performed survey with
the offer of registration. A.S.C.A. § 37.0102(a), (b). The surveyor and pulenu`u (or “the mayor”) of the village
where the land is located, or nearest to where the land is located, must
verify, by a certificate accompanying the survey, that the pulenu`u
gave public oral notice in the village at a meeting of the chiefs of the
village of the time and place of the intended survey. A.S.C.A. § 37.0102(c). The purpose of this notice is to give
interested landowners opportunity to be present at the survey.
The record of the registration
shows that the surveyor certified in June 1971, and that the American Samoa
Government’s lands and survey manager certified on June 18, 1974, that the
survey of the land was conducted in conformance with the laws and regulations
pertaining to surveys. On May 18, 1987,
the same surveyor and the pulenu`u at
the time of the survey in 1971 certified that on June 5, 1971, the pulenu`u gave public oral notice of the time
and place of the intended survey at a meeting of the Taputimu
village chiefs.
[5-7] When litigation arises out of an objection to an offer
for registration of title to land, lapse of time between the survey and the
registration offer raises a question of fact whether rival claimants to the
particular and adjacent lands received fair notice of the intended survey. Lualemaga v. Asifoa, 9 A.S.R.2d 85, 87 (Land
& Titles Div. 1988). [2ASR3d208] Lualemaga
was an ongoing disputed registration proceeding.[1] This case, however, concerns a concluded
registration proceeding which carries a presumption of finality. Ifopo v. Siatu`u, 10 A.S.R.2d 66, 73 (Land
& Titles Div. 1989). The
present certificate is not facially invalid.
Thus, we conclusively presume that in 1971 notice of the intended survey
was given and that the actual survey was performed contemporaneously and in
accordance with A.S.C.A. § 37.0102.
Next, Tulifua claims that the Territorial Registrar’s record
shows that the notice given for the proposed title registration of the land was
defective. On May 10, 1989, when Talae offered the
land for registration, the law required that notice of the proposed
registration be posted for 60 days on the bulletin board at the courthouse in Fagatogo and at two public places in the village in which
or nearest to which the land is situated.
A.S.C.A. § 37.0103(a) (1981) (amended May 22, 1989). The purpose of this notice is to afford
persons claiming interests in the land adverse to the applicant opportunity to
object to the title registration. A.S.C.A. § 37.0103(b). If no adverse claims are filed in this 60-day
period, and all other requirements are met, the Registrar is mandated to
register the title in the applicant’s name.
A.S.C.A. § 37.0103(c) (1981) (amended May 22, 1989; current version at
A.S.C.A. § 37.0103(d)). After legally
proper registration, all other claims of ownership are barred forever. Ifopo, 12
A.S.R.2d at 26.
[8] The notice for the proposed registration affirmatively
states that the notice was posted from May 10, 1989 to July 10, 1989, a period
of 62 days. The affidavit of posting in
the record only confirms the posting for the same period on the bulletin board
at the “Administration building” in Fagatogo[2]
and on one telephone pole in Taputimu. The affidavit fails to [2ASR3d209] record any posting of the notice at a second public
place in Taputimu. The affiant also signed the
affidavit on May 10, 1989, when he could not actually have verified posting for
60 days. Finally, the jurat on the affidavit calls for the Territorial
Registrar’s signature on May 10, 1989 but was not executed on that or any other
date.
[9] Clearly, the affidavit of posting is facially defective. However, on May 10, 1989, A.S.C.A. § 37.0103
(1981) (amended May 22, 1989) did not require that the posting of the notice at
the two public places in the appropriate village be evidenced by an affidavit
or any other particular form of evidence.
See Vaimoana v. Tuitasi, 13
A.S.R.2d 76, 82 (Land & Titles Div. 1989). The notice of the proposed registration
itself shows that the notice was posted for 62 days. Moreover, the Territorial
Registrar is obligated to register a land title only when all the statutory
requirements are met, and the court should not assume that the Registrar did
not carry out this responsibility. Ifopo, 12
A.S.R.2d at 28. The court cannot
conclude that the required notices were not properly given simply because
witnesses testify that they never saw the notices.
In 1989, the notice requirements in
the land registration laws were supplemented, effective on May 22, 1989. P.L.
No. 21-1 (codified as amended at A.S.C.A. § 37.0103). One amendment adds the element of publication
in a local newspaper at least once each 30 days during the 60-day notice
period. A.S.C.A. § 37.0103(a). The other
substantive change requires the registration applicant to submit notarized
statements from the pulenu`u, newspaper,
and clerk of the court that the required notices [2ASR3d210] have been given before the Territorial Registrar can
register the land title. A.S.C.A. §
37.0103(c).
The notice of the proposed
registration of the land was not published in a local newspaper. An affidavit from a newspaper was thus not
filed with the Registrar. Moreover, the
evidence of the courthouse posting comes not from the Clerk of the Court but
only in the unsworn statement by the Registrar’s
staff member. Talae’s
application for registration of the land was, however, filed 12 days before the
effective date of the 1989 amendments requiring proof of the required notice by
various affidavits. The 1989 amendments do not have retroactive effect, and
this registration is therefore governed by the registration laws as they
existed on May 10, 1989, not as they were amended on May 22, 1989. Ambrosino v. Rodman & Renshaw, Inc., 635 F. Supp. 965, 974
(N.D.
Lastly, Tulifua
alleges that the heirs procured the title registration as their individually
owned land by fraud. Uaine
Tuitele was a member of the Tuitele
family of Leone. He was also a member of
the Tulifua family of Taputimu. He occupied the land at least as far back as
1929. After his death, the heirs continued to occupy and use the land,
virtually exclusive of occupancy and use by any other member of the Tulifua family.
Tulifua believes that Uaine Tuitele and the heirs after his death were on the land as Tulifua family members and representatives of the Tulifua family’s communal interests. Based on the evidence, however, we find that Uaine Tuitele and the heirs
openly asserted that the land was their individually owned land.
Memories among other members of the Tulifua family may have faded over time during the
successive reigns of the Tulifua titleholders. It is also true that the Tulifua
title was vacant when the land was surveyed in 1971 and was registered in
1989. Nonetheless, members of the Tulifua family were aware of both the survey and
registration processes and failed to timely object to the registration
process. We do not find any evidence of
fraud by Talae or others among the heirs in offering
the land for registration as the heirs’ individually owned land.
Since the registration of the title
to the land was properly carried out of record, and since there is no evidence
of fraud or other grounds to set aside the title registration, we conclude that
the heirs own the land as their individually owned land. We cannot, however, direct the Territorial
Registrar to record the lease to the Ho Chings. [2ASR3d211]
Talae is regarded as the head of the heirs. In this capacity, he has undertaken a primary
role in transactions concerning the land. The transactions in evidence include
the Ho Chings’ lease.
Patricia Ho Ching is one of the heirs. The other transactions in evidence are
agreements purportedly separating residential structures from the land to Silimusa M. and Taifita S. Solomona and to Edmund and Mary Pereira. Silimusa Solomona and Mary Pereira are also members of the heirs.
[10] Talae has
acted in the manner of the sa`o (or
“senior chief”) of a Samoan family exercising pule
(or “power”) over the family’s communal land. He has achieved an apparent
consensus among the heirs in support of his actions regarding the land. Indeed, the separation agreements describe
the land as communal land of the Uaine Tuitele family or of Uaine Tuitele.
Traditionally, however, the Tuitele family is
a Leone, not a Taputimu, family. No evidence was presented that Uaine Tuitele is a traditional
family of either village. Moreover, once
land is registered as individually owned land, the court cannot treat the land
as communal land simply because the family group associated with the land
occupies the land communally. See
Roberts
v. Sesepasara, 7 A.S.R.2d 139, 141-42 (Land
& Titles Div. 1988).
[11-13] As owners of individually owned land, the heirs own
the land as tenants in common. Uaine Tuitele’s children
inherited the land in this manner. A.S.C.A. § 40.0202(a). His children received equal undivided
interests in the land, and the issue of each deceased child succeeded to those
interests, per stirpes. A.S.C.A. § 40.0204. The successors are also tenants in common. Coulson v. Hillmer, 612 S.W.2d 124, 126 (
Order
1. The title registration of the land in the name of
the Heirs of Uaine Tuitele
as their individually owned land is valid.
2. The lease to the Ho Chings
is invalid and shall not be registered by the Territorial Registrar.
3. The Clerk of the Court shall submit certified
copies of this opinion and order and the judgment entered in this action to the
Territorial Registrar. [2ASR3d212]
It is so
Ordered.
**********
[1] Tulifua also cites Maugututia v. Savea, 4 A.S.R. 483 (Trial Div.
1964). Maugututia was likewise a
contested registration proceeding and also involved a facially defective
certificate by the surveyor and pulenu`u. The
survey was first conducted in 1946 by one surveyor and was retraced in 1963, 17
years later, by another surveyor. The
court stated that the certificate executed in 1963 was invalid because it
related to the 1946 survey, not the 1963 survey. The court noted the 17 year
time lag between the survey and the notice, not because of the length of this
time, but because the survey predated the notice. In the current case, the time lag is between
the survey and the offer of registration, not between the notice and the
survey. Further, in the current case, neither the survey nor the proposed title
registration predates the requisite notice.
[2] Tulifua argues, at least
collaterally, that posting the notice on the administration building in Fagatogo should vitiate the registration. Designation of
the “Administration building” in the affidavit of posting is not grounds for
invalidating a land title registration because A.S.C.A. § 37.0103(a) (in effect
on May 10, 1989, and as amended, effective May 22, 1989) was amended in 1979 to
describe the location as the “courthouse.” Vaimaona
v. Tuitasi,
13 A.S.R.2d 76, 82-83 (Land & Titles Div. 1989). The Territorial Registrar merely neglected to
change the affidavit form.
[3] Tulifua presented witnesses
who testified that they did not see any second notice posted in Taputimu. One of them also stated that he removed one
notice in the village near the land and took it to the Territorial Registrar’s
Office. This witness also declared that
the village chiefs met at some point in June 1971 but that the pulenu`u did not give any oral notice of the
intended survey at that time.
Talae provided
witnesses, including the Territorial Registrar in office in 1989 and his staff
member who signed the affidavit of posting. They affirmed that two notices were
posted in the village. They also admitted that despite the Registrar’s
direction to replace the notice torn down, a new notice was not posted at the
same or another location during the 62-day period.