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Muliufi; Puluti v.

KOMITI PULUTI and LEULU MALAGA, Objectors

 

v.

 

MULIUFI, LUSIA AND HEIRS, Applicants

 

[Land: "Vaitafe" in Pago Pago]

 

High Court of American Samoa

Civil Jurisdiction, Trial Division

 

No. 206-1964

 

May 6, 1965

 

__________

 

            Application to register land in village of Pago Pago. Two parties objected claiming ownership. Trial Division of the High Court, Chief Justice Morrow, held for first objector and her nine children as widow and heirs of deceased land owner, holding that weight of evidence indicated that disputed land was not included in land given to applicant and that objectors possession created presumption of ownership.

              Registration allowed by objector. [4ASR673]

1. Real Property-Registration of Title-Objection To Registration-Must Object Within 60 Days

Objection to application to register land must be filed within 60 days after application was filed, and objection not filed in time cannot be considered. (CAS 10.0112.)

2. Real Property-Quieting Title-Possession as Evidence of Ownership-Presumption of Ownership
Possession of real property creates presumption of ownership.

3. Inheritance-Dower-Right of Widow to Dower
Widow of land owner has undivided one third interest in land by way of dower. (CAS 8.0103.)

__________

 

Heard at Fagatogo on May 5 and 6, 1965, before MORROW, Chief Justice and TAUALA and LETULIGASENOA, Associate Judges.

 

Komiti Puluti pro se.
Molaga, Counsel for Leulu Malaga.
Tago, Counsel for Muliufi, Lusia and Heirs.

 

 OPINION OF THE COURT

 

MORROW, Chief Justice.

 

            On October 8, 1964, Muliufi filed his application with the Registrar of Titles to have the land described as Vaitafe in the village of Pago Pago registered as the individually owned land of "Muliufi, Lusia and Heirs." The application was accompanied by a survey of the land offered for registration.

            On October 13, 1964, Komiti Puluti of Pago Pago filed an objection to the proposed registration claiming that the land Vaitafe was the individually owned land of Pisa's children. Komiti is the widow of Puluti Pisa who died in 1959, leaving Komiti and their nine children surviving him. The records of the Probate Court show that Pisa, Puluti Pisa's father, left a will (recorded in Vol. 4, Miscellaneous, page 166) by which he devised all of his property to his son Puluti. Pisa died on October 18, 1950. [4ASR674]

            On December 7, 1964, Leulu Malaga filed an objection to the proposed registration claiming the land offered for registration was "the communal land of Tua'olo So'o and his sister" and stating that she was a member of the Tua'olo family.

            [1] By letter dated December 15, 1964, Robert F. Porter, as counsel for Mrs. Katelina Ilaoa of San Francisco, wrote the Chief Justice claiming that the land Vaitafe was Katelina's, having been inherited by her from her father Tua'olo (deceased). This letter was filed with the Clerk of the High Court on December 22, 1964. Katelina's objection not having been filed within 60 days from October 8, 1964, the date the application to register was filed, cannot be considered, such objection having been made too late. See Section 10.0112 of the A. S. Code, 1961 Edition.

            The evidence in this case is in serious conflict. However, we believe that the weight of evidence is clearly to the effect that the land in dispute is not the property of Muliufi, Lusia. and heirs. Certain property adjoining the land in dispute and lying on the southwest side of it was registered in the name of Muliufi and Lusia in July, 1947 in Vol. 1, Native Titles, Pages 410-411. Muliufi claims that the land so registered together with the land in dispute was given to him and Lusia, his wife, by Tua'olo So'o in return for service by them to Tua'olo So'o. We believe from the evidence that the land so registered was given to Muliufi and Lusia by Tua'olo So'o in return for service but that the land given did not include the land in dispute.

            [2] Komiti claims that the land in dispute has been occupied by herself and her children for many years and that during that time they have cleaned it. We believe from the evidence that this is true. Possession of real property creates a presumption of ownership. I Jones on Evidence (4th Ed.) 133.

            We also believe that the weight of evidence is to the effect that Siautau, who was So'o's brother, sold the dis[4ASR675]puted land to Fa'atuiese for a cow and that Pisa who was married to Molitiu, derived ownership thereof from Fa’atuiese, who was his mother-in-law. We think that the testimony of witnesses Leulu Malaga and Sesepasara indicates that. As we have already stated Pisa died in 1950 leaving all of his property to Puluti Pisa who died in 1959, leaving objector Komiti, his wife, and nine children surviving him.

            [3] It is our conclusion that the weight of evidence is to the effect that the land in dispute is the property of Komiti and her nine children, she having an undivided one third interest therein by way of dower (see section 8.0103 of the A. S. Code, 1961 Edition) and each of her nine children having an undivided 2/27ths interest therein.

 

DECREE

 

            Accordingly it is ORDERED, ADJUDGED AND DECREED that the application to register the land Vaitafe as the individually owned land of Muliufi, Lusia and Heirs be and the same is hereby denied. And it is further ORDERED, ADJUDGED AND DECREED that the land Vaitafe, as shown on the survey accompanying such application and described as follows:

 

"Beginning at a concrete monument having coordinates X=251,021.36 and Y=307,464.73, American Samoa Datum of 1962, thence leaving said point of beginning on azimuth 220̊43'56" a distance of 73.16 feet to a concrete monument flush with the ground having coordinates X=250,973,64 and Y=307,409.30, leaving said monument on azimuth 132̊25'15" a distance of 116.50 feet to an iron pin 2 feet from edge of the existing Fagasa Road, thence on azimuth 246̊34'10" a distance of 17.40 feet to a concrete monument having coordinates X=251,943.67 and Y=307,323.79, leaving said monument on azimuth 318̊24'25" a distance of 171.32 feet to a concrete monument having coordinates X=250,942.94 and Y =307,451.92 thence continuing along the said azimuth a distance of 6 feet to a point in the center of the stream, thence leaving said point [4ASR676] on azimuth 55̊49'26" a distance of 16.68 feet to a point center of the stream thence leaving said point on azimuth 89̊00'04" a distance of 28.68 feet to a point center of the stream thence leaving said point on azimuth 70̊20'15" a distance of 18.01 feet to a point center of stream, thence leaving said point on azimuth 112̊21 '20" a distance of 25.16 feet to a point center of the stream, thence on azimuth 88̊09'09" a distance of 16.44 feet to a point center of the stream, thence leaving said point in the center of the stream on azimuth 220̊43'56" a distance of 9.00 feet to the concrete monument, point of beginning.

 

containing 9.116 acres more or less, shall be registered as follows: one undivided one third interest in such land as the individually owned land of Komiti Puluti and an undivided 2/27th interest in such land as the individually owned land of each of Komiti Puliti's nine children, viz. Molitui, Simau, Julie, Annie, Puluti Jr., Magalo, Aukuso, Tinolepaia, and Sai'aemoe.

            Costs in the sum of $20.00 are hereby assessed against Muliufi, the same to be paid within 20 days.

 

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