JOSEPH WILLIS, PAUL WILLIS, ROBERT, DORA, ALEC
WILLIS, DAISY WILLIS TUILE'EPA, TONY WILLIS,
of Fagatogo, Plaintiffs
LAUGUTU and PA'U, Husband and Wife, Defendants
High Court of American Samoa
Civil Jurisdiction, Trial Division
September 19, 1961
Petition for eviction. High Court, Morrow, Chief Justice presiding, ordered eviction subject to defendant's right to remove their house, finding plaintiffs, as co-tenants, had superior title.
Real Property-Tenants in Common-Possession as Against Third Parties
A tenant in common is entitled to possession of common property as against all others save his co-tenants.
OPINION AND ORDER
Heard at Fagatogo on August 29, 1961, before MORROW, Chief Judge, and TAUALA and LETULIGASENOA, Associate Judges.
Joseph Willis pro se and the other plaintiffs.
Laugutu pro se and the other defendant.
OPINION OF THE COURT
MORROW, Chief Judge.
The defendants are occupying a small Samoan house on the land Siona in Fagatogo. The plaintiffs filed their petition praying that the Court order the defendants to evacuate said land. Falesau, the mother of the plaintiffs, was originally a party-plaintiff. When the case came on for [4ASR217] hearing, she moved the Court to dismiss her as a party plaintiff, which it did.
The land Siona is a part of a larger parcel of land called Tuamauga in Fagatogo. On September 22, 1947, the High Court of American Samoa decreed in case No.49-1947, "That, as against all persons who cannot show a better title, Joseph Willis, Robert Willis, Tony Willis, Paul Willis, Dora Willis, Daisy Willis Aifili, Alexander Willis, Jr., and Falesau Willis Asi are tenants in common of the lands Tuamauga and Faioa, each having an undivided one-eighth interest in such lands, and that they, subject to the rights of Toa as against Falesau, resulting from the lease hereinbefore referred to, are jointly entitled to the possession of such lands."
The plaintiffs are the sons and daughters of Falesau. The defendants are her friends and aiga. Falesau invited the defendants to come to Siona and make their home there. They put up the Samoan house on Siona and have made their home there since 1958. There is a large palagi house on the land which at various times has been occupied by members of the Willis Family including Falesau. A number of the plaintiffs decided that the defendants should vacate the land Siona and so informed them prior to the filing of the petition in this case.
The plaintiffs are tenants in common along with their mother Falesau of the land Siona as a result of the Court decision above referred to in No. 49-1947.
The editors of Corpus Juris Secundum state the law applicable in this case as follows:
"A tenant in common is entitled to possession of the common property as against all the world save his co-tenants." 86 C.J.S. 384.
The Supreme Court of Michigan in the case of DesRoches against McCrary, 315 Mich. 611, 24 N.W.2d 511, 513, said that: [4ASR218]
"The plaintiff, as one of two tenants in common, is a person entitled to possession as against everyone but his co-tenant."
In the Michigan case the plaintiff was one of two tenants in common who alone brought an action to recover possession of property which he owned in common with his brother. The court held that as against the defendant, a stranger to the title, the plaintiff was entitled to possession.
It follows, therefore, from the facts in this case and the law applicable thereto that the plaintiffs are entitled to the possession of Siona as against the defendants, each of the plaintiffs being a tenant-in-common of the land Siona. However, the defendants, since they built the small Samoan house hereinbefore referred to, are entitled to remove the same from the land prior to their departure therefrom.
Accordingly, the defendants Laugutu and Pa'u are hereby ordered to vacate the land Siona, a part of Tuamaua, within 40 days from the date of this order, which is September 19, 1961. If they desire to do so, they may, within the 40 days, remove the Samoan house which they built on Siona.
Costs in the sum of $9.75 are hereby assessed against defendants Laugutu and Pa'u, the same to be paid within 30 days.
ORDER OF EVICTION
TO: LAUGUTU AND PA'U
YOU AND EACH OF YOU ARE HEREBY ORDERED to vacate the land Siona, a part of the land Tuamauga, in Fagatogo by October 29,1961. You may remove the Samoan fale built by you on the land Siona by October 29, 1961.