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https://www.courtlistener.com/api/rest/v3/opinions/8484993/ | OPINION AND JUDGMENT
On this 26th day of August 1935 before me came Afoa, Faagata and Lauvale all of the Village of Fagatogo, in accordance with an agreement made by all of them with me on the 19th day of August 1935 that between the two dates an agreement should endeavor to be reached between the three of them as to the holder of the name Lutu.
By the decision of the High Court rendered in the case tried in the year 1905 Afoa was given the pule of the name Lutu.
It appears at the hearing held on this day that the three parties heretofore mentioned have not been able to agree on a candidate and it is therefor my opinion that Aofa may choose whomsoever he sees fit as the holder of the matai name Lutu.
Afoa in the absence of agreement with the other two parties has decided to take the name Lutu himself.
It is however my opinion that as the names Lutu and Afoa are both high names they should not both be held by the same person and accordingly and in accordance with the ruling of the Attorney General it will be necessary for *525Afoa to resign his matai name Afoa before he takes the name Lutu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484994/ | DECISION
At a term of the High Court of American Samoa held at the Courthouse in Fagatogo on the 10th day of February, 1936.
Presiding: Chief Justice HARRY P. WOOD, Associate Judge PULETU.
The Plaintiff, Poi of Pago Pago, and his counsel, Asuega, and the Defendant, Talo of Pago Pago, and his counsel, Crossfield Hunkin, were present.
This is a land case to determine the title of the land Sauio’o, located on the land side of the public road just north of the old L.M.S. Church in Pago Pago.
Talo, a matai, filed the land for registration, and Poi, also a matai, objected.
Talo’s witnesses, in addition to himself, were a former Talo and Tali.
*526Poi’s witnesses, [sic] in addition to himself, was a former Tali.
It appears from the testimony that for some years both Talo and Poi and their families have lived on this land. Talo and his family occupy a house back from the road on the southerly end of the land and Poi and his family occupy several houses extending from the road inland on the northerly end of the land. Both families have planted taro and bananas and used the fruits of their respective plantations, and both families have used at will the breadfruit and coconuts growing on the land. There are two cemeteries on the land. It is admitted that many of the Poi family are buried in these cemeteries, but it is disputed that there are members of the Talo family buried here. Tali, a witness for Talo, said that he knew of but one Talo buried here and that was Talo-Siolo.
Poi was born on this land fifty-two years ago. The present Talo has apparently lived on the land not longer than about four years, but there is testimony, which is disputed, that other Talos have lived there.
Poi and his witnesses offered evidence of many acts of pule of the land, such as leases made, permission given to build houses, etc. Talo offered the testimony of Tali that permission to him was given to live on the land by a former Talo, but a former Tali testified that this permission was given to the Tali family by a Poi.
Talo put in evidence a long history in an endeavor to show his pule of the land, but weighed in the balance with Poi’s testimony that he was born on the land and that his predecessor in title also lived there for many years, Talo’s testimony is not convincing, especially as it appears that the Talo family’s home is Sailele.
This case would probably not have arisen had there not been recent ill feeling between Talo and Poi, which led to the survey of the land by Talo. Prior to that time both *527families lived on the land peacefully and enjoyed the fruits thereof, and this state of affairs might have continued except for a petty quarrel.
Under the well known principle of law (if it were necessary to invoke it here) a title ripens after twenty years of open, notorious possession under a claim of right. Poi, under this rule, would have the title to that part of the land used and occupied by him and his family as against Talo, and Talo would have the same right against Poi had he been able to show an adverse possession for twenty years, but this adverse possession by Talo was not shown. It appears more likely that Talo is, and his family has been for some years, a tenant by the sufference of Poi.
On all the evidence it is the opinion of the Court that the title of the land Sauio’o is in the matai name Poi, and that this land, as surveyed and filed for registration by Talo, will be registered in Poi’s name. Whether or not Poi is satisfied with this registration made by Talo does not appear. If he claims more land than the survey plat calls for he will have to come to court for it in a separate proceedings.
If Poi will continue to suffer Talo and his family to continue to use that part of the land now occupied by him it would be a generous act on his part, and he would be commended for it, but he is not compelled legally to do so.
It is accordingly ordered, adjudged and decreed that .the title of land Sauio’o shall be registered, according to the survey heretofore filed in this Court, in the matai name of Poi, and that the costs of this action, in the amount of $25.00 be assessed to Talo.
SO ORDERED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484996/ | JUDGMENT
The land Asa Mauga, the title to which has been contested in this case, is residential property, located in the heart of the Village of Leone, in the Western District.
At the present time there are two large houses on the property, a cook house and the westerly line of the survey runs through the middle of another house. In addition to these houses, there is the foundation of a house which has been removed and in front of this, a grave.
The foundation and grave are in the southwest corner of the surveyed property.
The main dispute in the case is between Taeleifi and Leoso, both claiming the pule of the entire surveyed property.
The difference between Taeleifi and Uo is the boundary on the south side of the property where it adjoins Uo’s land. Aumavae’s claim is a strip of land lying on the *531western side of the surveyed land between his land and that claimed by Taeleifi.
It appears from the testimony that Taeleifi and his predecessors have lived on this property for many years, building and rebuilding houses and guest houses. There is no evidence of any action by Leoso to stop them and if they were built with the consent of Leoso, there is no adequate proof of it.
It is undoubtedly true that members of the family of Leoso have lived in the house now destroyed in the southwest corner of the property, and there is no evidence of any objection by Taeleifi or his predecessors. If this occupancy was with the consent of a Taeleifi, there is no adequate proof of it.
As to the house built by Telemete on the eastern line of the surveyed property, there is evidence that Taeleifi did object to its being built (about one year ago) but there is also evidence that this new house was built on the foundation of a house built at an earlier period.
The Uo controversy has been amicably settled between the parties pending a final confirmation and decision by the Court.
As to the claim of Aumavae it appears that the strip of land in question is a narrow one which is used as a public pathway in the Village of Leone-Aumavae claims to the extreme easterly side of the pathway and Taeleifi to its extreme westerly side.
There are no structures or plantations on the pathway, only two breadfruit trees. If the westerly line of the survey should run along the median line of the pathway, both Aumavae and Taeleifi will each have the benefit of a right of way along their property and neither will have to sacrifice over a few feet of land claimed respectively by them.
*532IT IS ACCORDINGLY ADJUDGED AND DECREED that the land offered by Taeleifi for registration, be registered in the name of Taeleifi as matai of their family, except
1. The tracts hereinafter described, which shall be the property of Leoso.
(a) Beginning at the southwest corner of the land surveyed by B. F. Kneubuhl for Taeleifi, and running thence sixty (60) feet in a generally northeast direction along the westerly line of said survey; thence forty eight (48) feet in a generally southeast direction parallel to the southerly boundary of the said survey; thence sixty (60) feet in a generally southwesterly direction parallel to said westerly line of said survey to said southerly line of said survey; thence forty eight (48) feet in a generally northwesterly direction, along the line of said southerly line of survey to the point or place of beginning. The said tract containing 2,880 square feet.
(b) Beginning at the northeast corner of the land surveyed by B. F. Kneubuhl for Taeleifi, and running thence twenty five (25) feet in a generally southwesterly direction along the northerly line of said survey; thence thirty six (36) feet in a generally southwesterly direction parallel to the easterly boundary of said survey; thence twenty five (25) feet in a generally northeasterly direction parallel to the northern boundary of said survey to the easterly line of said survey; thence northeasterly along the westerly line of said survey to the point or place of beginning. Said tract containing 960 square feet.
2. The tract hereinafter described shall be the property of Uo.
(a) Beginning at the southwesterly corner of the land surveyed by B. F. Kneubuhl for Taeleifi, and running thence twelve (12) feet in a generally northeasterly direction along the easterly line of said survey; thence 53 feet in a generally southeasterly direction to a point twenty six (26) feet distant north from the southerly boundary of said survey; thence twenty six (26) feet in a generally southeasterly direction to the southerly line of said survey.
3. Beginning at a point sixty (60) feet northerly from the southeasterly corner of the land surveyed by B. F. Kneubuhl for Taeleifi, and extending thence in a generally *533northeasterly direction between the land surveyed for Taeleifi and the land owned by Aumavae, — Taeleifi and Aumavae shall each respectively be entitled to use the foot path running between their respective houses and the line between the lands of said Taeleifi and Aumavae is determined to be a line drawn in along the median line of said path. Taeleifi’s land to the east and Aumavae’s land to the west of said line.
The court costs in this action amounting to $25.00 shall be paid as follows — $6.25 by Taeleifi; $6.25 by Leoso; $6.25 by Uo and $6.25 by Aumavae. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485030/ | DECISION
MORROW, Chief Justice.
Ilaoa had the land Avalúa in the Village of Leone surveyed and thereafter, pursuant to Section 74 of the Codification, made application to the Registrar of Titles to have the land as surveyed registered in his name. Salavea filed an objection to the proposed registration; hence this litigation. At the hearing the Court was advised by both Ilaoa and Salavea that each claimed the property as the matai of his family. It should also be stated that there is a public highway across the land; that the same is shown on the survey; and that the rights of the public in the highway are not in dispute.
It appeared from the evidence that at the time of the establishment of the government in 1900 this piece of land was occupied and used by the Salavea family; that the Salavea family had occupied and used it during the mataiship of at least four Salaveas prior to 1900; and that such use and occupation was accompanied by a claim of ownership. On this evidence we can come to but one conclusion, and that is that at the time of the establishment of the government the land under Samoan custom was the property of the Salavea family. The cession of the American Samoan Islands to the United States in 1900 did not affect private land titles. Talo v. Poi, No. 16-1937. The land Avalúa is still the property of the Salavea family unless it has parted with its title voluntarily, lost it through the operation of the doctrine of adverse possession, or unless the property has been taken through condemnation proceedings. Toilolo v. Ilaoa, No. 5-1937; Talo v. Poi, No. 16-1937. Being matai land it would upon *17the death of the matai descend according to Samoan custom to his successor to be held for the benefit of his family. Section 11(25) of the Codification. And it could not be taken on execution. Section 95(11) of the Codification.
There was no evidence to show that the Salavea family parted with its title to the land voluntarily or that it had ever been condemned. This leaves only the possibility of loss of title to Ilaoa through adverse possession to be considered. It was decided in the case of Talo v. Poi, No. 16-1937 that the Statute of 21 James I, Chap. 16, passed by the English Parliament in 1623 is a part of the law of American Samoa. That Statute operates to transfer title to land held adversely for the statutory period of twenty years to the wrongful possessor. This was laid down in the above case of Talo v. Poi, No. 16-1937.
“Adverse possession, generally speaking, is a possession of another’s land which, when accompanied by certain acts and circumstances, will vest title in the possessor. No matter in what jurisdiction the determination of what constitutes adverse possession may arise, the decisions and text books are unanimous in declaring that the possession must be actual, visible, exclusive, hostile, and continued during the time necessary to create a bar under the statute of limitations. Whenever any of these elements, or any other element required by statute is lacking, no title by adverse possession can ripen.” 2 Corpus Juris 50.
In Cook v. Clinton, 64 Mich. 309, 8 American State Reports 816, an instruction defining adverse possession in the following language was approved: “. . . All adverse possession must be open, notorious, continuous, exclusive, visible, and distinct, as well as adverse. Now what is meant by this is, that there must be an actual occupancy as distinguished from a constructive possession of the property; that is, some one must be in actual possession of the property . . . .” See Sunberg v. Cunningham, 96 Mich. 378, 35 American State Reports 613 and Elliot v. Lane, 82 Iowa *18484, 31 American State Reports 504. There are a multitude of decisions by courts of last resort in the United States that possession to be adverse must at least be actual, visible, exclusive and hostile to the owner. See 2 Corpus Juris 50, N. 7 and cases cited. From what has been said it is obvious that if Ilaoa under the circumstances of this case is to establish title to the land Avalúa in himself as the matai of the Ilaoa family he must, first of all, show that his family has been in the actual possession of the land for the statutory period of twenty years.
The evidence (and we have gone over the transcript very carefully) fails to show that the Ilaoa family was ever in actual possession of the land. Ilaoa was on the stand himself but he made no claim that his family had ever been in actual possession. When the Salaveas were putting up a fale on the land in 1906 the then Ilaoa made an objection to its construction claiming that the land belonged to his family and not to .the Salavea. After some discussions by the representatives of the two families the fale was completed. It was occupied by the Salavea family until it was destroyed by the 1926 hurricane. While there was some testimony that Olo, a high talking chief speaking for Salavea, admitted in the above mentioned discussions that the land belonged to Ilaoa, and that the fale was to be finished with the consent of Ilaoa, the evidence very clearly preponderates in favor of the view that Olo made no such admissions but at all times claimed that the land was Salavea’s. The Salavea family completed the fale regardless of any consent from the Ilaoa and lived in it and occupied the land in dispute under the claim that the land was theirs. Under these circumstances it makes no difference whether the Ilaoa gave any such consent or not, since the completion of the fale and the continued occupation of the land by the Salaveas was under a claim of ownership and not pursuant to any consent or permission which Ilaoa *19may, or may not, have given. In 1916 the then Ilaoa deeded land contiguous to the land in question to the government for a site for the Leone Naval Dispensary. The deed was in evidence. It contains a recital that both Ilaoa and Salavea claimed the land Avalúa. In 1936 when Salavea began to erect a new fale on the land, Ilaoa wrote him a letter in which he claimed the land as Ilaoa property and ordered him to stop the erection of the fale. Ilaoa introduced evidence that some members of the Ilaoa family are buried on the land. However, taking the evidence on burials as a whole it is quite clear that any such persons had also become members of the Salavea family through marriage into the family. Their burial on the land did not divest the Salavea family of possession, when the evidence shows that that family continued to occupy the land and to take its fruits. There was some evidence that Salavea Muagutu was an Ilaoa man. Conceding for the sake of argument that he was, he was also a member of the Salavea family through marriage, and if he was selected as the matai of the Salavea family that fact would not divest the Salavea family of ownership of Salavea matai land and invest the Ilaoa family and its matai with .the ownership. Under the Samoan custom that matai does not have the beneficial ownership in the family lands. He holds the title for the benefit of the family of which he is the matai.
The most that the evidence in favor of Ilaoa shows is that he and former Ilaoas have at various times made claims that the land was Ilaoa property. However, under the law governing acquisition of title by adverse possession, claims of title no difference how frequently made, when unaccompanied by actual possession, can never ripen into title. An examination of the cases from the United States previously cited in this opinion will demonstrate the correctness of that proposition.
*20There being no evidence of actual possession by the Ilaoa family at any time, it follows that the Salavea family did not lose its title to the Ilaoa family through operation of the doctrine of adverse possession.
It follows from what has been said that the land Avalúa is the matai land of the present Salavea, subject to the undisputed rights of the public in the highway across it.
While it is not necessary to a decision of this case it may be stated that since the evidence clearly shows that the Salavea family was in the actual, open, notorious, visible, continuous, exclusive and hostile possession of the land claiming it as their own from a time antedating by many years the establishment of the government in 1900, up to the date of the trial in 1938, it follows as a matter of law that the land is theirs free of any claims of the Ilaoa family. This is so obvious that citation of authorities is unnecessary.
Counsel for Ilaoa took the view, since Salavea was not actually living on the land from the year 1926, when his fale was blown down, until 1937, when his new fale begun in 1936 was completed, that Salavea did not have possession during that period. That is an error. Salavea continued to use the land and take the fruits from it. It continued to be a Salavea burying ground as it had been for many years before. A man may have possession of land without actually living on it. If that were not true there would be few plantations in American Samoa in possession of any one.
There is no need for further discussion.
It is accordingly ADJUDGED, DECREED AND ORDERED that the land Avalúa as shown on the survey filed by the proponent Ilaoa be registered by the Registrar of Titles as the matai land of Salavea subject to the rights of the public in the highway across said land. Since the *21Salavea family is already in possession it is not necessary to issue a writ of possession.
Court costs in the sum of $25.00 are hereby assessed against Ilaoa, the same to be paid within sixty days.
The other Judges concur. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485031/ | DECISION
MORROW, Chief Justice.
Sioeli of Fagatogo had the land Asiapa in Fagatogo surveyed and pursuant to section 74 of the Codification, made application to the Registrar of Titles to have the land as surveyed registered as his individual property.
Faaafe and Una’i, both of Fagatogo, filed an objection to the proposed registration, claiming that the land was their individual property. Hence this litigation.
It appeared from the statements of the parties at the trial, and from the evidence, that the land was not matai land.
The Court listened with great care to the testimony adduced and has read very carefully a transcript of the testimony.
To establish his claim Sioeli introduced evidence that the land at one time belonged to Mailo; that Mailo about sixty years ago sold it to Taeu Patea, the father of Sioeli; that when Taeu Patea left Tutuila some 45 to 50 years ago for Upolu he left the land in possession of Mataafa and Taeloua, his wife, with a statement to them that it was the property of Sioeli; that Mataafa died when Sioeli was a small boy about eight years of age, and that Taeloua continued in possession for sometime after Mataafa’s death and finally willed it to Sioeli.
Apparently from the record of the testimony Sioeli had no personal knowledge of his father having given possession of the land to Mataafa with a statement that it was Sioeli’s, and no other witness than Sioeli himself testified as to this matter. It appears to us that Sioeli’s testimony is based on hearsay. He testified that his father in later years upon returning from Upolu had told him *23(Sioeli) about giving possession to Mataafa and Taeloua with a statement that the land was Sioeli’s. He testified also that Taeloua had told him the same thing. Sioeli did not claim to have personal knowledge as to the disposal of the land by his father. If the land was his (Sioeli’s) already, Taeloua’s reputed will would have no effect. The testimony of Sioeli being based on hearsay cannot be considered. Since Taeu Patea left for Upolu before Mataafa died and since he died when Sioeli, who is now 56, was about 8 years of age, the gift of the land to Sioeli, if there was such a gift, must have occurred prior to the establishment of the government in 1900. Prior to 1900 the transfer of land titles was governed by Samoan custom. But proof in 1938 of a gift of the land according to Samoan custom prior to 1900 requires testimony that is the proper kind according to the law, and testimony based on hearsay is not.
According to Sioeli’s testimony, the land was not the property of Taeloua although she may have been in possession. Taking his testimony on this point at its face value any will she may have made .to him of the property, either before, or after the establishment of the government would have no effect. A person cannot will what he doesn’t have.
To establish their claim the objectors, Faaafe and Una’i, introduced evidence that the land at one time was the property of Mataafa and Taeloua, his wife; that Mataafa died leaving his interest to his wife; that she gave it to Taamu Maalona, the adopted son of Mataafa and Taeloua and a nephew by blood of Taeloua, and that Taamu Maalona died leaving the two objectors as his sole heirs.
Aleaga, who is related to neither of the parties to this action, has lived on land adjacent to Asiapa for the last 24 years. He testified .that he had never seen Sioeli taking fruits from the land, and that he had no knowledge of Sioeli having lived on the land. Sioeli himself testified that *24he left the land 31 years ago. Aleaga also testified that while he had been familiar with the disputed tract, it was Faaafe who had kept it clean; that as far back as 38 years ago he had seen Taamu Maalona, the father of Faaafe and Una’i, coming to the land and taking the fruits; that 30 years ago, when he had his own adjacent land surveyed, he had some argument with Taamu Maalona about the ownership of a coconut tree included by him in the survey; that Taamu Maalona at that time made the claim to the witness that Asiapa was his land; that Taamu Maalona and his children continued to take the fruits of the land until Taamu Maalona’s death about seven years ago; and that Faaafe and her children have taken the fruits since; that Faaafe had made the claim to him that the land was hers. It appeared quite clearly from the testimony that Faaafe had given permission for the burial of a child on the land a few years ago and that the Taamu Maalona children had built a fale on the land, and expressly permitted others to do likewise. There was testimony that Sioeli had never had a fale on the land. Faaafe has given permission to others to put plantations on Asiapa. Yalaile testified that he and his wife have lived in a fale on the land since 1934 with Faaafe’s permission and without objection from Sioeli. It appears that Faaafe at one time instructed Yalaile to clean up part of the land. Faaafe lived on the land for 15 years, having moved to another location some five years ago. The evidence shows that Taamu Maalona, through whom the objectors claim to have inherited the land, built a house on it which stood for about 10 years and .that the house was taken down or destroyed about 17 years ago. It is clear to us from the evidence that Taamu Maalona and his true daughters, the objectors, have exercised exclusive dominion over the land for many more than 20 years and during all of that time have taken the fruits, and that Taamu Maalona claimed the land as his during that period up to *25his death and that the objectors have continued to make the same claim since his death. There was no evidence that Taamu Maalona made a will. His two children, the objectors and his sole heirs, consequently inherited whatever rights he had in the land.
Taking the testimony as a whole we are convinced that Taamu Maalona and after him, his heirs, the objectors, have been in actual, open, notorious, continuous, visible, exclusive and hostile possession of the land for more than 20' years under claim of ownership. Under these circumstances the land belongs to the objectors. They have by the acts of their father and by their own acts acquired any outstanding title through adverse possession for 20 years. The possession of the ancestor may be tacked to that of the heirs so as to make up the 20 years required statutory period. McNeely v. Langan, 22 Ohio St. 32; Sawyer v. Kendall, 10 Cush. (Mass.) 241; Fugate v. Pierce, 49 Mo. 441; Rowland v. Williams, 23 Or. 515. Also see Tiffany on Real Property, Section 438.
In view of our ruling to the effect that Faaafe and Una’i have acquired any outstanding title through the operation of the doctrine of adverse possession for 20 years, it is not necessary to discuss the validity of any gifts and wills of the land that may have occurred regardless of who was the beneficiary of any supposed gift or will.
It was laid down in a case just recently decided by the High Court that actual, open, notorious, visible, continuous, exclusive and hostile possession of land for the statutory period of 20 years under a claim of ownership will operate to establish title in the possessor. Salavea L. of Leone v. Ilaoa of Leone, No. 2-1938. See also Talo v. Poi, No. 16-1937.
At the trial Faaafe stated that she and her sister Una’i were claiming the land as the property of both of them.
*26It is ADJUDGED, ORDERED AND DECREED that the land Asiapa as surveyed be registered as the property of Faaafe and Una’i as tenants in common, and as their individual property.
Costs in the sum of $25.00 are assessed against Sioeli, the same to be paid within 60 days.
The other Judges concur. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485032/ | DECISION
MORROW, Chief Justice.
This case involves the title to the land Tornea near Leone. Faga of Leone made application to the Registrar of Titles on March 4, 1938 to have the land registered as his. Satele of Vailoa filed an objection on April 14, 1938 claiming the land to be his. At the trial which was held on August 23,1938, Satele stated to the court that he claimed the land as matai land, the property of the Satele family. Faga in his testimony admitted that he did not own the land as an individual, but claimed it as the property of his branch of the Satele family.
For better understanding of the present case it should be stated that the present Satele and Faga were candidates for the name Satele in a High Court case decided in the early part of 1937. The name Satele was awarded to Satele Teutusi, the objector. It is apparent from the evidence in the present case that some forty years ago there were two Sateles who reigned together, Satele Uga, the father of the present Satele Teutusi and Satele Pili, the father of Faga, the proponent. It is clear to us considering the evidence as a whole that the land Tornea was the matai property of Satele Pili, there has been but one Satele, Satele Pili having been dead for about forty years. Consequently all of the matai lands of the former two Sateles who reigned together are now the matai lands of the present Satele, unless such lands, or part of them, have passed from the family, of which there is no evidence.
It should be stated, and very definitely so, that the matai does not own the family lands for his own benefit. He is a sort of trustee in whose name the family lands are held for the benefit of family members. The beneficial interest in the lands and the fruits therefrom belong to the family, and not to the matai as an individual. Since the land Tornea was formerly the matai land of Satele Pili it *28would follow, there being no evidence that the family parted with the title, that the beneficial interest in the land and the fruits thereof belong to those members of the Satele family who are the descendants of Satele Pili and the members of the Satele family who were under the mataiship of Satele Pili, and their descendants. We shall define these people as the Faga branch of the Satele family, since Faga is the son of Satele Pili.
When Satele Pili was living his branch of the family had the beneficial interest in and the right to the usé of the fruits of lands held by Satele Pili as a matai. When Satele Pili died their rights still remained in them. His death did not deprive them of their rights in family lands.
The survey of the land which was delivered to the Registrar of Titles with the application for registration is not sufficient to identify clearly the boundaries of the land. The land is described in the survey as having a tree at one corner and it further appears from the survey that the northern boundary of the land is along the main highway leading to Leone. There are thousands of trees which would fit the description in the survey and the main highway leading to Leone is miles in length. No doubt many sections of that highway will fit the description. There are no other fixed points or monuments shown on the survey. Clearly the survey does not meet the requirements of Section 74(3) of the Codification for registering land, and until a survey is delivered to the Registrar of Titles which is “sufficient to identify clearly the boundaries of the land” the land cannot be registered as the property either of Faga or of Satele. At the trial the Court pointed out to Faga and Satele the fact that the survey was inadequate, and suggested that two cement posts be procured from the Department of Public Works and that such cement posts be set, one at each of two corners of the *29land so that it may be clearly identified and that after the posts are so set the survey be corrected so as to show thereon the posts and that a certificate of a surveyor be procured and filed showing that the posts have been so set and their location shown on the survey.
Upon a survey being filed “sufficient to identify clearly the boundaries of the land” Tornea, the Registrar of Titles will upon receipt of a direction from the High Court register the land Tornea as the matai land of Satele held under Samoan customs by the Satele for the use and benefit of the Faga branch (as hereinbefore defined) of the Satele family. Faga not being the matai of the Satele family and as an individual had no right to have the land Tornea registered as his, but his branch of the Satele family has the right, according to Samoan customs, to the use and fruits of the land.
Court costs in the sum of $25.00 are to be paid by Faga within sixty days.
The other Judge concurs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485033/ | DECISION
This is an action to determine who shall be registered for the matai name Asuega. Si’itupe of Pago Pago filed for the name on June 9, 1938. On June 14, 1938, Falealili, a matai of the Asuega family, filed an objection in behalf of Lauvai of Pago Pago, Lauvai becoming a candidate for the name.
At the outset it should be stated that the High Court in reaching a decision is bound by the law. The Judges do not make the law. They take the law as they find it and apply it *31to the facts as they ascertain them to be from the evidence. If judges were to follow their personal likes and dislikes in the decision of cases instead of applying the law to the facts, the titles, lands, and liberties of the Samoan people would be endangered.
Formerly the law was to the effect that High Court in a matai name case should award the name to the candidate with the best hereditary right. The 1937 Fono recommended certain changes in the law. Its recommendation was later approved by the Governor and enacted into law. The law governing the decision in this type of case is now found in Section 79 (4A) of the Codification of the Regulations and Orders for the Government of American Samoa. It reads
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
“1. The wish of the majority of the family.
“2. The forcefulness, character, personality, and leadership of the candidate.
“3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
“4. The value of the holder of the Matai name to the Government of American Samoa.”
Pursuant to the above statute the primary and most important matter to be considered by the Court in this case is the wish of the majority of the family. Each candidate filed with the Clerk of the High Court prior to the date of trial a petition purporting to be signed by the various members of the family who favored his candidacy. There were 168 signatures on the petition of Si’itupe and 123 on the petition of Lauvai. At the trial counsel for Lauvai objected to nine or ten of the names on Si’itupe’s petition, claiming that said names were improperly there. The Court, after listening to the testimony, concludes that *32nine of the names objected to should be stricken from the petition. That leaves 159 members of the family who wish Si’itupe to be the matai of the Asuega family.
In considering the petition for Lauvai it should be stated that the evidence showed that Falealili who circulated Lauvai’s petition signed the names of seventeen persons in addition to his own to the petition. It appeared that these seventeen persons lived in Hawaii, and other parts of the world and could have known nothing about their names being so signed. Since these seventeen names were signed without the knowledge or authority of the persons whose signatures they purported to be, it is obvious that their names cannot be considered. The Court does not include them in the above mentioned 123 persons who signed Lauvai’s petition. Lauvai admitted on the stand that the above seventeen names should not be counted for him. The evidence showed that the name of a child five years of age was on Lauvai’s petition as were the names of one seven-year-old child and four eight-year-old children. It is obvious that children of such ages are not old enough to understand the affairs of a matai family and to have an intelligent wish as to who should be the matai. Their names should not have been on the petition. A few of the other 123 names were objected to by counsel for Si’itupe. It is not necessary for the Court to determine whether these last mentioned names so objected to were properly on the petition, or not, since Si’itupe by the evidence has 159 members of the family favoring his candidacy and Lauvai has only 123, counting those objected to by Si’itupe’s counsel as well as the children above mentioned. Even if the seventeen names signed by Falealili were counted Si’itupe would still have a majority of the family with him. We conclude that the majority of the family wish Si’itupe to have the name Asuega. He, therefore, prevails over Lauvai on the first issue.
*33We shall next consider the issue of forcefulness, character, personality, and leadership. The evidence showed and Lauvai admitted that in 1904 he was sentenced to jail for three months for an assault; that in 1906 he was again sentenced to jail for nine months for another assault with an alternative of paying a fine of one hundred dollars. He apparently served a part of the sentence. In 1932 he was again given a six months’ suspended sentence for an assault and was fined twenty dollars. A matai should be a peaceful man, and not a man who gets into quarrels with the result that he has to be sent to jail. A matai is frequently called upon to settle disputes between family members and to conciliate with other matais in disputes between his family and other families. A man who is quarrelsome is not a good conciliator. It did not appear from the evidence that Si’itupe had ever been convicted of a public offense. He was dismissed from the Island Government employ on account of cruelty to a dog. While the conduct of Si’itupe in this matter was not proper, nevertheless he is not in the same category with a man who has been sentenced for crime on three different occasions. The Court is of the opinion from the evidence that both candidates are industrious men. Lauvai served in the Fita Fita Guard for twenty years and draws a pension of about forty-four dollars a month which he expects shortly to be increased to about sixty dollars a month. Lauvai has large plantations which he works with skill and energy. Si’itupe also has plantations which he works and as far as the Court can ascertain from the evidence with ordinary skill and care. Both Lauvai and Si’itupe are engaged in the manufacture of curios which they sell on steamer days. Si’itupe’s income from this source ranges from fifteen to twenty-five dollars a month, while Lauvai’s income from this source is much less. It appears to the Court that Si’itupe has superior qualifica*34tions of leadership. He has been employed at various times by the Island Government as a foreman and has had charge at various times of as many as one hundred laborers. We do not regard it as necessary to detail any more of the evidence on this issue. It is very clear to us, considering all of the evidence, that Si’itupe prevails on the issue of forcefulness, character, personality, and leadership.
On the issue of best hereditary right it should be stated that each candidate is a son of an Asuega. Si’itupe is the son of Asuega-Taufaasau (Tui). Lauvai is the son of Asuega-Moeva. Upon this record both candidates have an equal hereditary right to the name.
This leaves the issue of value to the Government of American Samoa yet to be considered. It appears that both candidates have always paid their taxes. For this both are to be commended. Both candidates have plantations and are industrious. However in view of all of the evidence on this issue we are of the opinion that Si’itupe will be more valuable to the Government as the matai than Lauvai. The settlement of difficulties within the family and between the family and other families can be handled better by a man who is peaceloving, than by a man who has been sentenced three (3) times for assault.
In view of our findings that Si’itupe prevails over Lauvai on three issues and has equal right to the name on the issue of hereditary right it follows that Si’itupe is entitled to the name Asuega. Si’itupe will be certified to the Attorney General for registration for the matai name Asuega.
Costs in the sum of twenty-five ($25.00) dollars are assessed against Lauvai, the same to be paid within sixty (60) days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485034/ | DECISION AND DECREE
Heard at Fagatogo on December 19, 1938, Eddie being counsel for Aupiu and Magalei, Maea acting for himself.
The Court viewed the land involved prior to the trial.
The facts sufficiently appear in the opinion.
MORROW, Chief Justice.
*36The land designated Moepulou on the survey hereinafter referred to was surveyed by Maea and offered by him for registration as his property on November 5, 1937, the survey being filed with the offer to register. The offer to register was made pursuant to Section 74 of the Codification. The land is located in Faleniu. Objections to the proposed registration were filed by Aupiu, Magalei and Tuiaana. Shortly before the trial Tuiaana withdrew his objection.
The evidence clearly shows that the southeastern part of the surveyed area extending for 116 feet along the main road to Leone is the communal property of the Savea family of which family Aupiu is a member and for whom he acted in making his objection. There is no doubt from the evidence that at the time of the establishment of the Government in 1899, and for several decades previous thereto, the Savea family occupied and used this part of the surveyed land under a claim of ownership. Therefore it was Savea communal land under Samoan customs. .See Talo v. Poi, No. 16-1937. The extension of the authority of the United States to the Island of Tutuila in 1899 did not, of course, affect private land titles. Talo v. Poi, No. 16-1937; Salavea L. v. Ilaoa, No. 2-1938. Since the establishment of the Government the Savea family has continued to use and occupy the land under a claim of ownership, and there was no evidence showing that it has parted with its title. Many members of the Savea family are buried in this area. There is a living fa le and a cook house on it on the respective sites of which living fales and cook houses have been maintained by the Saveas for at least 39 years. The Saveas have plantations on it and have had for many years. There is no evidence to show that the Maeas ever made any claim to this part of the land occupied by the Saveas prior to October 1937 when the survey was made, except possibly a loose verbal claim some four or five years *37ago, or that the Maeas ever interfered with the use and occupation of it by the Savea family.
The evidence also shows that the northeastern portion of the surveyed tract extending for 77 feet along the road to Leone is the property of Magalei. It has been used and occupied by the present Magalei under a claim of ownership for 53 years; and for many decades prior to the occupation of that portion of the land by the present Magalei it was occupied and used by former Magaleis under a claim of ownership. There are many old Magalei graves on the northeastern portion of the surveyed tract. Magalei has a guest fale on it on the site of which there have been Magalei fales for many years. Since for a great many years immediately preceding the establishment of the Government in 1899 the Magaleis had occupied and used the land under a claim of ownership, it was theirs by Samoan custom at that time. The extension of the authority of the United States to Tutuila in 1899 did not affect their title. The Magalei family has continued to occupy and use it under a claim of ownership during the entire period of the existence of the Government. There was no evidence to show that Magalei has parted with the ownership since the establishment of the Government. The Maeas as far as the evidence shows have never interfered with the possession by the Magaleis of this part of the surveyed tract, and made no claim to the land until the survey was made in October 1937 except possibly a mere loose verbal claim some four or five years ago.
An examination of the evidence convinces us that Maea is the owner of the western part of the surveyed tract except a small part on the south which is Savea property. The present Maea has occupied and used this part of the surveyed area under a claim of ownership since about 1925. He has occupied a fale on that part since that time, when he put a living fale up on the site occupied by his present liv*38ing fale. He has plantations on the land, and has had for a number of years. While there is a dispute in the evidence, we think it preponderates in favor of the view that this part of the surveyed land has been occupied and used under a claim of ownership by former holders of .the Maea name or by Maea family members for a period antedating the establishment of the Government and extending up to the present time. Consequently that part of the surveyed area is Maea land.
In view of the evidence and the established principles of law applicable thereto the Court
ADJUDGES AND DECREES
(1) That that part of the surveyed tract bounded as follows is the communal family land of the Magalei family:
Beginning at a point two feet from the west side of the main road to Leone (which point is at the north end of a line extending 64 feet to a bath east of said road and having a bearing of 142° 43') thence 262° 45' for 88 feet 2 inches; thence 265° 44' for 38 feet; thence 175° 44' for 21 feet; thence 85° 44' for 17 feet; thence 175° 44' for 72 feet 6 inches; thence 85° 44' for 31 feet; thence 72° 30' for 100 feet; thence 342° 6' for 77 feet back to the starting point.
(2) That that part of the surveyed tract bounded as follows is the communal family land of the Maea family:
Beginning at the westerly end of the boundary described as having a length of 38 feet with a bearing of 265° 44' in (1) above thence 265° 44' for 7 feet; thence 274° 29' for 88 feet; thence 171° 51' for 75 feet; thence 145° 52' for 72 feet; thence 120° 39' for 84 feet; thence 90° 00' for 36 feet; thence 352° 00' for 80 feet; thence 265° 44' for 31 feet; thence 355° 44' for 72 feet 6 inches; thence 265° 44' for 17 feet; thence 355° 44' for 21 feet to the place of beginning.
*39(3) That that part of the surveyed tract bounded as follows is the communal family land of the Savea family:
Beginning at the southerly end of the boundary described as having a length of 77 feet with a bearing of 342° 6' in (1) above, thence 252° 30' for 100 feet, thence 172° 00' for 80 feet; thence 270° 00' for 36 feet; thence 120° 39' for 31 feet; thence 82° 52' for 130 feet; thence 342° 6' for 116 feet to the place of beginning.
All bearings are magnetic. Reference is made to the survey which will be recorded.
The evidence clearly showed that the land above decreed to be the property of the Maea and the Savea are communal family lands. The only evidence as to whether the land decreed to be the property of Magalei is communal family land or the individual property of Magalei came from Magalei himself. It is true that he stated to the Court that it was his individual property, but a careful reading of all of his statements convinces us that it is communal family land. His statement that it was his individual property was a conclusion of the witness. We base our conclusion that it is matai land of the Magalei family and not his own individual property upon the following testimony of Magalei which appears in the record:
“C.J. Magalei I would like to ask you another question or two. Was this land Moepulou originally matai land of the Magalei family?
A. No, it is just the branch of Magalei which that Magalei came from and the second and myself the third one, no others.
Q. Does it belong as you claim to you as an individual or to your branch of the family ?
A. To me and also my children.
Q. You mean your true children or your matai children, that is the members of the Magalei family over whom you are the matai?
A. Not only my children but the children of Magalei Aiono and Magalei Tau’ou, that is what I mean.”
*40Section 3(1) of the Codification provides that .'. so much of the Common Law of England as is applicable and not repugnant to or inconsistent with the Constitution and laws of the United States of America, and the laws of American Samoa, is declared to be in full force within American Samoa.” In the case of Talo v. Poi, No. 16-1937 this Court decided that the Statute of 21 James I, Chap. 16, limiting actions for the recovery of real property to a period within 20 years after the accrual of the right of action was a part of the law of American Samoa, the phrase “English Common Law” in the abovementioned Section 3(1) being interpreted to include this ancient English Statute.
The evidence shows that the Savea family was in the actual open, notorious, visible, continuous, exclusive and hostile possession of the land above decreed to be theirs for a period of more than 20 years preceding the offer of Maea to register the land as his, and that during such period they claimed it as their own. While it is not necessary to a decision of this case, it is proper to say that, in view of these circumstances and the applicability of the above statute their title could now be sustained if there was any defect in it at the time of the beginning of such possession. See Salavea L. v. Ilaoa, No. 2-1938. And the title to that part of the surveyed tract decreed to be Magalei family land can likewise be sustained under the similar evidence applicable to it by the same line of reasoning. Loose verbal claims of ownership do not interrupt the running of the Statute. 2 Corpus Juris 94-5.
Maea, Magalei and Aupiu are each to pay court costs in the sum of eight dollars and thirty-four cents ($8.34) within 60 days.
The other Judges concur. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485035/ | DECISION
The land designated Lepuapua on the survey hereinafter referred to was surveyed by Fao and, pursuant to Section 74 of the Codification, offered by him for registration as his property on July 7,1938, the survey being filed with the offer to register. The land is located near the village of Tafuga. Liu, Muli, Poloai, Tua, the Salemeana’i family, Sagapolu and Fonoti each filed separate objections to the proposed registration.
At the trial it appeared from Fao’s statement that he claimed the land as the communal family land of the Fao family. Each objector stated .that that part of his or its land claimed by such objector to have been included in the survey was likewise communal family land.
The tract surveyed in November, 1937, is bounded on the east by the sea and extends inland to the westward a little more than a mile. It averages about a quarter mile in width, and contains 191 acres. Except for a small portion next to the sea, the 191 acre tract is practically all heavy bush land difficult to penetrate. Fao testified that he learned the boundaries of the land Lepuapua from Fao Si-toe on March 20, 1900, Fao Sitoe accompanying him over the land on that day and pointing out the boundaries to him. He also testified that there are two large stones iii the bush near Pava’ia’i which are on the boundary line of Lepuapua. His testimony and the testimony of other witnesses indicate that these are the only two fixed markers in the entire boundary line surrounding the land, which, as *43before stated, is practically all heavy bush except a small part near the sea. Fao stated that he had been over the land a number of times on hunting trips after 1900, but not after he had his leg cut off in 1932.
The surveyed tract has seventy-five (75) sides by actual count on the survey filed. There is only one fixed marker shown on the survey, it being a government cement base tripod signal which an examination by the Court at the time of the Court’s visit to the land showed to have been broken into a dozen scattered pieces with only a small portion of the cement still adhering to the lava rock beneath it, and which small portion will in a short time doubtless disappear making it impossible to retrace the boundary as surveyed. The two large stones above-mentioned as being in the boundary line of Lepuapua are not shown on the survey, no doubt because, as the evidence showed, the surveyed tract does not quite reach to said stones.
Practically all of the boundaries must have been in heavy bush land in 1900 as they are now since it was apparent from the Court’s inspection of the land and from the evidence that except for a small portion near the sea the land has never been cleared of bush.
That Fao could remember with any degree of accuracy the location of a great number of unmarked boundaries in heavy bush thirty years after he was shown the same on March 20, 1900 — granted that Fao Sitoe knew where they were — is difficult to believe. Yet, if this land is to be registered as Fao land, this Court must believe that very thing, as will be later apparent from the decision. This Court judicially knows that the human mind is such that it is scarcely to be believed that he could have retraced accurately the boundaries through heavy bush, all of them unmarked except the one identified by the two stones, even as long as three months after he was shown the boundaries. Yet we are asked to believe that under the circumstances *44he remembered accurately these boundaries after, not three (3) months, but after thirty years.
The evidence showed that prior to the making of the survey in November, 1937, a working party under the direction of Sarnia, a member of the Fao family, spent two or three weeks cutting a path through the bush along the boundaries of the surveyed tract so that a survey could be made following the path so cut. Fao directed Sarnia to have the path cut. According to the testimony this path made through the bush did not at all places follow the boundaries of the land Lepuapua as shown to Fao by Fao Sitoe. Fao told Sarnia to have the path cut along the north side of the surveyed area in a straight line for about a mile back from the sea in a direction that is westerly, then cut-in a southerly direction staying within the confines of Lepuapua on the westerly side and then in a straight line on the south side in what appears by the survey to be an easterly direction, to the land of Salemeaga’i and thence by the land of Salemeaga’i back almost to the sea. Fao’s directions were to have the path cut so as to make the land included within the path substantially a rectangle. We think from the evidence that it was Fao’s intent to have the path cut so as not to take in any of the lands of adjoining land owners, several of whom are the seven objectors in this case. There is no reason to suppose that Sarnia did not try to follow Fao’s directions as best he could. However, the measure of success that Sarnia had in cutting a straight path through the bush for a mile on the north side of the surveyed area is shown by an examination of the plat of the survey which followed the path. There are more than thirty boundaries shown on the north side and along the path, no two of which have the same direction. The bearings of these last mentioned boundaries range all the way from 303° 51' clockwise from north to 224° 27' clockwise from north. The boundary with the latter bearing comes within less *45than eleven degrees of being at right angles with the boundary having the first described bearing.
Samia testified that he knew the boundaries of the land Lepuapua and that he cut the path so as not to have any of it outside of those boundaries. He received his information as to the location of the boundaries from Fao, Fao pointing them out to him while on a hunting trip in Lepuapua. The last time Fao, according to his own testimony, was on the land Lepuapua with Samia was in 1931, the year before Fao had his leg cut off. Samia stated that he went over the land with Fao before Fao had his leg cut off as before stated (it was cut off in 1932), and that he (Samia) was about eighteen or nineteen years old at the time. Samia also testified that he hadn’t been over the land with Fao for seven or eight years which would make his last trip over the land with Fao six or seven years before the survey was made in November, 1937. Fao .testified that on the above-mentioned hunting trip he pointed out the same boundaries of Lepuapua to Samia that Fao Sitoe had pointed out to him thirty years before. It should be stated again that most of these boundaries were in heavy bush difficult to penetrate and with no markers to define them except the one marked by the two stones at the westerly end of the tract.
The testimony in favor of Fao on the boundaries in the bush comes down to this: On March 20, 1900, Fao Sitoe pointed out to Fao where the boundaries of Lepuapua were in this bush. Some thirty years later Fao while on a hunting trip in Lepuapua with Samia, an 18 or 19 year old boy, recalls the boundaries (unmarked except as to one with the two stones to define it) and points them out to Samia who, relying on what Fao had told him six or seven years before as to their location, cuts a path for the survey about two miles long through the bush and does it so accurately that he doesn’t take in any land belonging to the adjoining land owners.
*46If Fao is to have the surveyed land registered as his family land, he must rely solely upon the testimony of Sarnia that Sarnia knew accurately the boundaries, unmarked, except one, in the heavy bush and that he cut the path so as to have it within those boundaries.
Fao admitted that he was not present when the survey was made and that he had never been over the cut path which the survey followed, except a small part near the sea on the day preceding the trial when the Court viewed the land. He could not, therefore, even admitting that he knew the boundaries of Lepuapua in the bush, know whether the surveyed area included some lands of adjacent land owners or not. That Fao didn’t know whether land of other families was included in the surveyed tract is very clear from his own testimony. A portion of the transcript of the evidence taken when Fao was under examination reads:
“Q. All that you know is that your son told you that they didn’t. take in any of the neighbor’s land, you don’t know whether they did or not, do you?
A. That is correct.
Q. As far as you of your own knowledge are concerned, you don’t know whether this surveyed tract includes the neighbor’s land or not?
A. I didn’t personally present at the time when the survey was running along but my son told me.
Q. All that you know about it is that your son told you that they didn’t include any of the neighbor’s land in the survey tract, is that correct ?
A. That is right.”
Sarnia is the son of Fao referred to in the quotation from the transcript.
It is very apparent that all Fao knew about whether lands other than his own family lands were included in the survey is based on what Sarnia told him after the path was cut, which of course, is just hearsay, and inadmissible as testimony.
*47The only other witnesses for Fao, besides Fao himself and Samia, were Faiivae and Tuia. Faiivae testified that he had been familiar with the land Lepuapua for over thirty years. But not having seen the path followed by the survey, he was not in a position to give admissible testimony bearing on whether or not the surveyed tract included some of the lands of the various objectors. He admitted that he did not know whether any of the neighbor’s lands were included in the surveyed area or not. Since Fao by his own testimony was in no position to know, except through inadmissible hearsay from Samia whether the survey took in adjoining land of objectors and Faiivae gave no testimony bearing on the issue, Fao must, as before stated, rely solely upon the testimony of Samia that he cut the path so as not to have it, or any part of it, outside the boundaries of Lepuapua. Tuia’s testimony was merely to the effect that .the surveyed tract included no plantations. He was a member of the party making the survey.
To establish his title to the 191 acres offered by him for registration, Fao introduced testimony that the Fao family had been in possession of the land for a period antedating the establishment of the Government; that they had used that small part of the land which is not bush and by the sea for plantation purposes; that on rare occasions they had gotten timbers and bamboo from the heavy bush area on the tract; that they had taken arrowroot from a part of the land; also that Court Grant No. 843 to the executors of the Matthew Hunkin estate dated 25 March 1897 and recorded on pages 97 and 98 of the Register of Court Grants contains a recital indicating that land adjoining the land included in the Court Grant was the property of the Fao family. This recital on page 98 of the record reads as follows: “Also all that parcel of land situate in Tafuna aforesaid called ‘Maafuaalomau’ being land Claim No. 2797. Bounded on the East by Noa’s land 300 links on the South *48by the sea 265 links. On the West by family land. Bounded West North West 137 and 117 links by land of Lealaimatafau.” It was in evidence also that Hunkin bought the land included in the Court Grant from Fao.
Sarnia, who is a member of the Fao family and who lived with the family and hunted with Fao on the land testified that he never saw Fao making any use of the surveyed tract except a small portion by the sea. Fao himself testified that he had taken timber, bamboo, arrowroot, lafala and coconuts from the land; that he had held the name Fao for forty-one years and that during that time the land had been in the possession of the Fao family; that there were no Fao graves within the surveyed tract, though there were in a part of the land Lepuapua not included in the survey; that Ufuti, Leao and Faleafine had gotten timbers from the land with his permission.
Fao’s witness, Faiivae of Leone and fifty-nine years old, testified that in his 31 years acquaintanceship with Lepuapua, he knew of Fao getting timbers from it only twice and bamboo once. The timbers and bamboo were gotten from the bush part of Lepuapua. Faiivae stated that he was a member of Hunkin family having some land next to the land Lepuapua and that he had been in a position to know of the use Fao had made of Lepuapua. Faiivae stated that Fao had shown him while hunting the boundaries of Lepuapua. He also stated that he had not seen the path which the survey followed. It is obvious, therefore, that he could have no knowledge except through hearsay, as to whether or not the path was within the boundaries Fao pointed out to him.
It is apparent from the evidence that the Fao family had made very little use of any of the bush part of the surveyed tract, which part composes almost all of it.
We shall now pass to the .testimony in behalf of the objectors, considering the case of each objector separately.
*49Mageo aged fifty-eight years of Pago Pago testified that he was familiar with the land Lepuapua. He also stated that Liu’s land ran to a lonely coconut. This coconut was admittedly within the surveyed area. He also gave testimony that he himself had gotten timbers for fales from Lepuapua without permission or objection from Fao, and that Fao knew that he got the timbers; that Liu’s family had gotten bamboo on many occasions from Lepuapua.
County Chief Letuli, a member of the Liu family and also the Fao family, testified that he was familiar with Lepuapua and the land Matautu belonging to the Liu family near Tafuga; that he had seen the path cut through the bush which the survey followed. Then he stated that a part of the land Matautu was included in the surveyed area. He also stated that members of the Liu family had taken timbers from land within the surveyed area, and that Fao had made no objections. Letuli testified that the land Matautu extended to the lonely coconut within the surveyed area, and that the Liu family to his knowledge had been taking arrowroot, lafala and timbers from the land around the lonely coconut for a long time. Letuli also stated that the surveyed area took in some lands of Muli, Sagapolu, Salemeana’i and Noa (Noa represented by Liu).
Judge Muli of Ili’ili testified that he had seen the path followed by the survey and was familiar with the surveyed tract; that it included some bush land of a tract called Vaieli belonging to him and Leituala; that his family had on many occasions taken timber from the part of his family land included in the survey, and also arrowroot and lafala; that such use of the land covered a period extending back before the establishment of the Government which was in 1900. It should be stated that Muli is fifty-four years old and was in a position to know of the use of lands by his family. He also stated that such use was without the permission or objection on the part of Fao; that he and Lei*50tuala had had the exclusive use of the part of the surveyed area claimed by him, and that Fao had made no use of it, and that if Fao had made any use of such land he was in a position to have known it.
Muli also testified that lands of Sagapolu, Tualevao, Tua, Liu and Noa were included in the surveyed area offered for registration. It appeared from his testimony that Muli was in a position to know the correctness of this last statement.
Leituala, forty-nine years old and also of Ili’ili, testified that he was familiar with Lepuapua, had seen the path followed by the survey and that the surveyed land included part of the land Vaieli, the property of Muli and himself; that the Muli family had used that part of Vaieli included in the surveyed tract for many years, taking timbers, arrowroot and lafala from it; that the Muli family’s use of the land antedated the establishment of the Government; that Fao had made no objections to such use and had not used it himself.
Poloai, fifty-seven years old, of Pava’ia’i, testified that he was familiar with the land Lepuapua and had seen the path followed by the survey. That part of his land Leatuana was included in the Fao survey; that his family had been taking arrowroot, lafala and timbers from that part of Leatuana included in the survey since prior to the establishment of the Government; that such use was without objection on Fao’s part and that he had never seen the Fao family making any use of such included land.
He also stated that the survey took in some of Tua’s land and also some land of Liu and Noa. His testimony indicated that he was in a position to know the truth concerning the facts about which he testified.
Talolo, more than sixty years of age, of Vaitogi, testified that he was familiar with the land Lepuapua and had seen the path cut through the bush and followed in making *51the survey; that he had been familiar for many years with the land Leatuana belonging to Poloai and that part of it was included in the survey; that the Poloai family had taken timber, lafala and arrowroot from that part for a period running back prior to the extablishment [sic] of the Government. He also stated that part of Tua’s land was included in the surveyed tract.
Letele, forty-one years old, of Pava’ia’i testified that he saw the path cut for the survey; that he had been familiar with the land Tavaitutolu ever since he “was able enough to go about and look”; that Tavaitutolu was the property of Tua and that a part of it was included in the surveyed area; that the Tua family, to his knowledge, had taken timbers and other products from that part “from our forefathers and up to the present time.”, that he had no knowledge of the Fao family having made any use of it.
Sagapolu, fifty-six years old, of Ili’ili, gave testimony to the effect that he had seen the path cut through the bush for making the survey; that part of his family land Aigalelei was cut off by the path so that it was included in the surveyed tract; that said part was bush land; that his family had made use of that part since prior to the establishment of the Government, taking timbers, arrowroot and lafala from it; and that such use was made without the permission or objection of the Fao. Sagapolu, who, according to his testimony, was in a position to know the facts, testified that parts of the lands of Salemeana’i, Noa and Liu, Tua and Muli and Leituala were included in the surveyed area.
Atualevao, probably sixty years old, of Ili’ili, stated on the stand that he was familiar with Lepuapua; that he had seen that part of the path for the survey which, he said, cut off a part of the land of the Salemeana’i family of which he is a member; that to his own knowledge his family had used that part ever since the Government was established tak*52ing therefrom lafala, arrowroot, timber and bark from fau trees growing on it; that Fao had made no objection to such use and had not given permission therefor; and that he had no knowledge of the Fao family ever having made any use of such part.
Fonoti, sixty-eight years old, of Tafuga, testified that he was very familiar with the land Lepuapua; saw the path being cut for the survey; went over the path; that it was cut so that a part of his family land was included in the surveyed area; that the part of his family land so included had plantations in it cultivated by his family ever since 1916; that his family had taken timber from that part so included for fales and that Fao had never made any objection to the cultivation by Fonoti’s family of such plantations and that the use of such part was without Fao’s permission. Fonoti also stated that his family land was adjacent to Tua’s land and that a part of Tua’s land was included in the survey.
As stated before in this decision, Fao’s case as to the survey’s not taking in any land other than Lepuapua rests solely upon the testimony of Samia who, when a boy eighteen or nineteen years of age and while on a hunting trip with Fao six or seven years before Samia cut the path, was shown the boundaries of Lepuapua by Fao who relied upon what Fao Sitoe had shown him as to their location more than thirty years before. It must not be overlooked that of the many boundaries of Lepuapua in the heavy bush only one was marked by markers, and that that one was at the westerly end of the tract more than a mile from the sea. That Fao could have remembered correctly the location of such numerous unmarked boundaries in the bush for thirty years would be a remarkable mental feat; that an eighteen or nineteen year old boy on a hunting trip could be shown the same unmarked boundaries in the bush and recall them accurately six or seven years later when he *53cut the path for the survey is equally remarkable. Yet if we are to register the surveyed tract as Fao land we must believe that these remarkable mental feats actually occurred and at the same time disbelieve the testimony of Mageo, County Chief Letuli, District Judge Muli, Leituala, Poloai, Talolo, Letele, Sagapolu, Vao, and Fonoti.
All of these witnesses were much older than Sarnia. All of them were familiar with the land Lepuapua and other lands in its vicinity. Can it be that all of them were mistaken or consciously gave false testimony and that Sarnia alone was correct when he testified that the path cut through the bush and followed by the survey was cut so as not to go outside the boundaries of Lepuapua?
This Court must ascertain the facts from the evidence. There being a conflict in the evidence, the Court must weigh the testimony of the witnesses. Since Fao offered the surveyed tract for registration as his property the burden of proof under the law rested upon him. The burden was not on the objectors to show that he did not have the title to the land. We think that the weight of the testimony is with the objectors, not Fao, and that Sarnia was mistaken when he said that the path was cut so that it was entirely within the boundaries of Lepuapua. We believe that he acted in entire good faith both in cutting the path and in giving his testimony. However, in the light of all the evidence, (and it is our duty to consider the whole and not just a part of it) we believe that he was mistaken and that the path was outside the boundaries of Lepuapua at certain places.
The survey purports to show the ownership of lands adjoining the surveyed area. At the trial Fao admitted that the Noa family had land next to Hunkin and to the land he claims. But such adjacent land instead of being marked on the survey as Noa land was marked Fao. On the stand Fao was asked: “Who has land next to your land, as you claim, *54and next to Hunkin?” He answered: “Noa’s property, that is the one Liu is representing.”
Since no part of any objector’s land that may have been included in the surveyed area has been surveyed so as to be capable of definite identification, it is not possible to register any such unsurveyed part as the land of any objector. Since we have concluded that the survey as filed by Fao includes some unsurveyed lands not belonging to the Fao family it is not possible to register in this litigation any land included in the survey which the Fao family may own because there is no way of knowing without further surveys what land within the surveyed tract the Fao family may, or may not, own.
It should be pointed out that this is not a decision that the Fao family owns, or does not own, any land within the surveyed area; nor is it a decision that any particular objector does, or does not, own any specified land within the surveyed area. This decision is to the effect that the entire tract as shown on the survey cannot be registered as Fao family land, and that is the only thing decided.
It may very well be that the Fao family owns a portion of the surveyed tract offered by Fao for registration. There is evidence to that effect but what part, if any, cannot be determined definitely from the evidence in this case, or from the survey.
Section 74(3) of the Codification provides, among other things, that “No claim to land shall be admitted to registration . . . unless the description is sufficient to identify clearly the boundaries of the land . . . .” Of course the principal purpose of this requirement is to enable the land to be definitely identified at a later time in case of any dispute as to its location. It should be stated here that, as shown on the survey filed by Fao, it appears that the land offered for registration has some seventy-five boundaries. Only one marker, a government cement base tripod signal, *55is indicated on the survey. That cement marker, as the Court observed when viewing the land prior to the trial and as before stated, has been broken into as [sic] least a dozen pieces scattered on the lava rock on which it was placed, there being only one small part of the marker still attached to said rock. Within a short period this remaining piece will with constant weathering doubtless go the way of the remainder of the marker, and with the breaking away of that piece it will not be possible to retrace the survey should a dispute arise and such become necessary. It is true that the land of Hunkin is shown on the survey as adjoining the surveyed tract for some five hundred and thirty-one feet on the three northwest boundaries nearest the sea, and presumably this is the land confirmed in the Hunkins by the Court Grant hereinbefore mentioned. However, an examination of the Court Grant as recorded shows that the bearings of the boundaries of the Hunkin land are not given but instead the land is described as bounded by the sea and the lands of various Samoan families, naming them, and “on the Northwest side by the bush land Lepuapua.” Obviously the Hunkin grant record could not be of any assistance to a surveyor in retracing the survey after the above-mentioned piece of cement has become separated from the lava rock.
Unless some cement posts, or other permanent markers should be embedded in the boundary line and their location shown on the survey, it will be impossible in a few years to retrace the survey as filed. Under these conditions, the land as presently shown on the survey is not entitled to registration in view of the above quoted part of Section 74(3). However, this is a matter that, could easily be remedied as above suggested.
Any objector, who may desire to have any land which his family may have within the surveyed tract registered, is free to have a survey of his land made and offer it for *56registration. While each objector in this ease introduced evidence of ownership of a portion of the land surveyed by Fao, nevertheless that portion, not having been surveyed, was not capable of identification by definite boundaries and therefore cannot be registered in this litigation. Fao is also free to have another survey of any land he may own made and offer the land as surveyed for registration.
Costs in the sum of fifty ($50) dollars are hereby assessed against Fao, the same to be paid within ninety (90) days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484998/ | DECISION
The High Court convened at the Courthouse in Fagatogo on Thursday November 12, 1936 at 9:00 a.m. to hear the above entitled action before Chief Justice WOOD, District Judges PULETU and MULI
In the case of Maluia v. Fanene (High Court 1908) the point at issue was the ownership of the lands “Lalotoga” and “Asofitu.”
Seigafo testified in this case on behalf of “Fanene” and his testimony was: that although Seigafo had formerly *536owned these lands, he had given them absolutely (to) to Fanene.
In the present case Simi Yandall, a young boy, comes before the Court as a claimant for the name Seigafo. Fanene objects to the name being given to anyone.
It appears by the testimony of Seigafo that there has been no holder of that name in American Samoa for thirty six years, and the only reason advanced for the appointment of a new holder of the name is that there should be some matai to look after the family lands.
As it appears by the testimony of Seigafo himself that there are no lands of the family to be looked after and as there has been no holder of the name in American Samoa for over thirty six years, it would seem that to appoint a holder of the name at this time would be equivalent to throwing a match upon a fire which has long ago burnt out.
It is further the conviction of this court that the proponent of this name, who is a very young man and who is the great, great, great grandson of a former holder of the name (if the testimony of Seigafo can be believed) would be but a tool in the hands of some old chiefs in the Village of Nuuuli and Fagatogo to endeavor to get possession of the lands in Nuuuli (Asofitu and Lalotoga) many years ago perhaps owned by the name Seigafo.
The Court accordingly will not appoint a Seigafo and assesses cost of $25.00 upon the proponent — $10.00 for hearing Seigafo’s testimony in August 1935 and $15.00 for the session of court held 12 November 1936. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484999/ | This case involves the ownership of the land Faiileteine in Nuuuli. The claimant of the land is Tafetee and the *538objector is Maluia. Tafetee claims the land Faiileteine was originally a part of the land Falemalama owned by Levu and the land Faiileteine was given by Levu to Tafetee Iona who was the adopted son of Osooso. He also said that Tafetee held the name Tafetee with the full pule of the land Faiileteine. Tafetee Iona is the father of this claimant Tafetee Mulu.
Tafetee further states that the pule of the land Faiileteine was confirmed in Tafetee by Levus Pauga, Taliese and Fuatau.
The objector Maluia agrees to the lines of the survey as made by Tafetee but he says Tafetee does not own the land, it is owned by Maluia. Maluia says that Faiileteine was originally owned by Tafetee Fuataulo’u. This Tafetee had a daughter Vaitalo and she married Maluia Luatua of Paepaeuli. Vaitalo and Maluia had three sons — Tuileta, Kupalu and Iosua. Tafetee Fuataulo’u before his death gave the pule of this land Faiileteine to his daughter Vaitalo and her husband Maluia and these three children.
The son Tuileta held the name Tafetee but he resigned that name and took the name Maluia. After that Kupalu took the name Tafetee. After Kupalu died the son Iosua took the name. This son Tuileta married and had four sons and one of them was Maluia Finauvale. Tafetee Iosua married a girl by the name of Logo.
Maluia says that there was a homeless old man by the name of Faleese and Iosua felt sorry for him and took him into his family and Faleese was not grateful for this kindness and he abandoned the family several times in Upolu and Olosega. Finally he came back under the protection of Iosua and later married and had a son by the name of Iona.
Iona was given the name Tafetee by Iosua and this name was confirmed to him by Maluia Finauvale. This Tafetee Iona was given this name and allowed to live on the land by *539Maluia, but Maluia says that he was not given any of the pule of the land. They just named him Tafetee but did not give him any pule of the land. Therefor Maluia’s contention is that although Iona, who was the father of Mulu, lived on this land and Mulu lived on this land, yet neither of them were real members of the family of Tafetee and they were never given the pule of the land Faiileteine by Maluia and his family.
At first sight it would seem that the testimony of the witnesses for the claimant and the objector is hopelessly at variance. But a closer examination discloses that there is a contact in the Tafetee called by the claimant Osooso and by the objector Iosua. It will be noticed that it is agreed that this person married in each case a woman by the name of Logo.
The claimant says that there was no son of this marriage and that Tafetee Osooso adopted as a son the son of the man named Maae, who was named Iona and that this Iona was given the name Tafetee by Levu and also the pule of the land Faiileteine. While the objector at this point brings in a deserted man by the name of Faleese and has him befriended by Iosua (Osooso), then married in Olosega producing a son Iona who was adopted by Maluia Finauvale and given the name Tafetee and the use of the land Faiileteine without the pule of either the name or the land.
A decision of the court must be based upon evidence and where the weight of evidence hangs in the balance the court must determine which story sounds the most reasonable. On this basis is it more reasonable to suppose that the Tafetee received the land Faiileteine from Levu who undoubtedly owns the adjoining property Falemalama, or that a Tafetee Fuataulo’u who according to Maluia’s testimony originally owned the land Faiileteine before his *540death gave the pule not only of the land but of the name to the man who married his daughter and to his sons.
Is this according to Samoan customs? Is it likely that a Samoan chief would renounce the pule of his matai name and his family lands to his daughter’s husband and their children forever?
This Court cannot think so. It is much more reasonable to suppose that the land Faiileteine came from Levu as a part of the land Falemalama.
It is also much more reasonable to suppose that Iona Tafetee was a son of Osooso Tafetee than that the high Maluia Tafetee family would give the name and the land to the son of a “deserted” man, just because he happened to be pitied by them. Samoans do not part with their lands and their titles so easily.
But the decision of this case does not depend entirely upon this reasoning. It is undisputed that the Tafetee family have lived upon this land as matais for at least seventy years under a claim of right. The only testimony of an undisputed possession is the incident of the use of a small corner of the land by a member of Maluia’s family named Tupu and after Tupu’s death by his descendants. It is stated that Tupu was originally sent to serve Tafetee and to counsel with him.
The Court upon being appealed to would not undertake to settle this question of use by Tupu’s family until the land had been surveyed and offered for registration.
Even twenty years of an undisputed possession open, and notorious and under a claim of right, gives a title and this Court is of the opinion that the Tafetee family has had such a possession and consequently has the title of the land Faiileteine with its pule.
Judgment for Tafetee. Costs of $25.00 to be paid by Maluia within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485000/ | DECISION
At the Annual Fono of 1936 the Eastern District, through its spokesman, a descendant of Tuiasosopo Sarnia, laid great stress upon the demand that the High Court in the decision of matai name cases should limit its inquiry to the sole question of which of the candidates has the best hereditary right to the name.
*542The proponent of the name Sarnia in this case is a grandson of a former holder of the name — the objector is a son of the last holder of the name.
According to the demand of the Eastern District, what else can the Court consider ?
Certainly the son of the last holder of the name has a greater right than the grandson of a former holder. There can be no dispute on this question.
If the Court could consider the questions raised as to pule; the fitness of a candidate to hold the office of matai; whether or not he is the choice of a majority of the family, or the other chiefs of his village, the decision in this case might be different, but as the Eastern District desires that hereditary right alone shall be considered, the Court has no alternative but to award the matai name Sarnia to Foleni.
The Court costs amounting to $25.00 shall be paid by Faateleupu.
SO ORDERED.
HIGH COURT OF AMERICAN SAMOA
Civil Jurisdiction, Trial Division
No. 1-1935
[REMOVAL OF MATAI-NAME “MAGAEA” FROM TAP ASA]
January 29,1937
We, the undersigned are members of the “Magaea Family” at Amouli, hereby respectfully request the Honorable High Court of American Samoa for withdrawal of the foregoing Case for the reason that this matter has been settled amongst ourselves amicably.
*543The present holder of the name is to keep the same.
s/Suaese Utu
s/Magaea
s/Afaga
s/Sinanene
The subscribers to this document appeared before me this 29th day of January, 1937, and severally acknowledged that they signed the same as their own act and deed.
s/H. P. Wood
Chief Justice of American Samoa | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485001/ | DECISION
This is the second time within ten years that this Court has had the duty of naming a Satele. The first was in the case of Moso’oi and Faga and this is the case of Faga and Teutusi, the brother of the last Satele — Moso’oi.
By the wish of the Samoan people expressed in two different Fonos this Court may take into consideration only the herditary rights of the parties and must base its decisions solely upon the determination of the question— which of them has the better hereditary right to the name.
Accordingly all testimony bearing on such questions as which of the contestants is best qualified to be the matai of the family by reason of his character, abilities and past services to former matais has been ruled out as irrelevant.
*545The Court has also ruled that all actual previous holders of the matai name are assumed to have held the name legally. Therefore that no testimony would be received attacking the validity of their titles.
Upon the uncontradicted testimony received in this case, the Court is bound to find:
1. That Faga, the proponent, is the own son of Satele Pili and the great grandson through his grandmother Lueina of Satele Laauletaupona.
2. Teutusi, the objector, is the brother of the last Satele Moso’oi, the son of Satele Uga, the grandson of Satele Moso’oi, and the great grandson of Satele Moasigiatu.
Upon this evidence, who has the better hereditary right to the name?
In the case of Moso’oi and Faga when the Court gave the name to Moso’oi, it was bound by the same rule of heredity as in this case, and in that case the decision of the Court was in favor of Moso’oi. How then can the Court reverse itself in this case, when the same Faga is a party and Teutusi is the half brother of Moso’oi by the same father Uga?
That Teutusi is the brother of Satele Moso’oi is compelling is [sic] only because Teutusi is the son of Uga as Moso’oi was. Therefore if Moso’oi was held by the Court to have a better hereditary right to the name Satele than Faga, why has not Teutusi the son of the same father not a better right than Faga ?
If it is contended that both Faga and Teutusi are own sons of a Satele then the answer must be that while Faga is descended through his father Pili in the female line from his great grandfather a Satele, Teutusi is descended through his father Uga through the male line from both his grandfather and greatgrandfather, all Sateles.
Under these circumstances and upon the evidence in the case the judgment of the Court must be in favor of *546Teutusi. The name Satele is accordingly awarded to Teutusi. Costs of $25.00 to be paid by Faga. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485002/ | DECISION
The land Puapua lying on the landward side of the main road to Leone and bounded on the east by the land of Faasii and on the west by the land of Atofau was surveyed and filed for registration by the claimant Tuufuli. Objection to the registration of this land was made by Faasii.
With Tuufuli as a claimant to this land was his mother, Sinatoga and with Faasii as an objector was Mrs. Alec Willis.
In order properly to understand the issues in this case it must be known that some years ago there was a land case *547in this Court between Atofau and the People of Malaeloa regarding the ownership of certain lands in the Western District. The decision of the Court was in favor of Atofau. He was given the lands on the condition that he would pay the People of Malaeloa for the plantations which they had planted on the land.
It appears that Atofau did not have the necessary amount of money at the time so he sought an advance of at least $300.00. $100.00 was contributed by Ilaoa and Avegalio; $100.00 by Faasii; $50.00 by Magauli and $50.00 by Sinatoga and Tuufuli.
In return for the $100.00 contributed by Ilaoa and Avegalio they were given a piece of land on the seaward side of the road. The testimony of Avegalio is that this land was parcelled out and given to them by Atofau personally.
Faasii and Mrs. Willis testified that one Muagutu collected $200.00 as follows — the $100.00 from Faasii, $50.00 from Magauli and $50.00 from Tuufuli and Sinatoga. That Atofau in consideration of this advance of $200.00 turned a large part of the land over to Faasii and Faasii in turn gave a part of the land claimed by Tuufuli and his mother to them, but not all of the land now claimed by Tuufuli and his mother, and that then Faasii retained the balance of the land for himself, except that which was given by Atofau to Avegalio and Ilaoa.
The claimants and Atofau testified that in return for the loan of $300.00 Atofau, the then undoubted owner of the land, personally parcelled out one piece of the land, i.e. that claimed by Tuufuli and his mother, to them. A much larger piece to Faasii and a piece on the seaward side of the road to Ilaoa and Avegalio. Atofau is supported in his testimony by the statement under oath of both claimants and by the testimony of Avegalio that he personally parcelled out the land.
*548Magauli was not present as a witness for Faasii, but it was agreed that his testimony would support Faasii’s claims.
As the testimony is about evenly divided the Court must look at the situation from the standpoint of Samoan custom and what would appeal to the reason of a normal man. All of the land in question undoubtedly belonged to Atofau because it was awarded to him by the decision of the High Court. Why then, just because Faasii, a member of Muagutu’s family, contributed $100.00 of the $200.00 advanced by Muagutu to Atofau, should Atofau turn over the distribution of all the land to him. Would it not be more reasonable to suppose that he, Atofau, did as he says he did, i.e. that in return for the claimants’ $50.00 turned over a smaller part of the land to them, i.e. the land offered for registration, and for the objectors’ $150.00 turned over a larger portion of the land to them. For the $100.00 advanced by Ilaoa and Avegalio, parcelled out the land which they now own and which is not in dispute.
For this reason the Court is of the opinion that Atofau upon receipt of this advance turned over to the claimants the land now claimed by them — Faasii admitted that at least half of this land (toward the sea) which the claimants have surveyed he personally gave to them.
It is the opinion of the Court that Faasii is mistaken and that the land which was turned over to the claimants was turned over by Atofau, who should be in a position of knowing the extent and boundaries of this land better than Faasii.
Judgment of the Court is for the claimants Tuufuli and Sinatoga. Costs of $25.00 to be paid by the objector. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485003/ | DECISION
The land Amalau fronting on a Bay between Vatia and Afono was surveyed and offered for registration by Lauti a matai of Vatia. The registration of the land in Lauti’s name was objected to by Asuega a matai of Pago Pago and Luapo of the family of Gaoteote Upuese deceased, formerly of Vatia.
During the trial it developed that Asuega did not claim this land for himself but expressed the desire that in the *550event of a favorable decision it be registered in the name of Luapo as the pule of the Gaoteote family. It also developed that a holder of the matai name Gaoteote at the present time lives in Vatia but had no part in this case. Asuega’s grandmother was the sister of the mother of Gaoteote upon whose claim of occupancy of Amalau the objectors claim the land.
Both the proponent and the objector Asuega testified that they had many years ago lived on this land but that neither of them then or since remembered to have seen the houses or other evidences of habitation by the other.
Lauti’s testimony was that his adopted father Lauti at one time had three houses on the land and that several of his ancestors whose names were given by him are buried there; that the Lauti family planted and cultivate [sic] plantations on the land and used the fruits thereof without molestation by the objectors’ family. This testimony of planting and cultivation is not specific as to time or nature. There is also testimony by Lauti that in the past a part of this land was granted to the use of one Sua of Afono by Lauti and Sua’s successor in title testified at the trial that he still used the land and the fruits thereof. There is also definite testimony by Lauti and his witnesses that he and his family a few years ago stoppted [sic] Luapo from entering and carrying away crops from the surveyed land and furthermore then Lauti went to a District Judge to institute an action of trespass against Luapo. At this time the land had already been surveyed (13 December 1934) and Judge Pele advised Lauti that the parties await the decision of the High Court.
Asuega who was the sole witness for the objectors testified that he heard of this interference with Luapo by Lauti from a boy sent by his brother Moevao in Vatia to acquaint him of the incident. Asuega then journeyed to the land and looked it over but did not attempt to see Lauti or *551talk the matter over with him. He contented himself with filing an objection to the registration of the land by Lauti.
While the evidence of use and occupation of the land gathered from the testimony of Lauti and his witnesses is not wholly convincing yet there is evidence not only of that but of objection and a forceful preventing of the objector Luapo from using the fruits of the land and the carrying of .this objection to Court. Lauti was, it appears, sufficiently convinced of his rights in the premises to go to the cost of having the land surveyed. Asuega contented himself with filing an objection on behalf of himself and Luapo.
Lauti not only testified in Court himself but produced other witnesses in behalf of his claim. Asuega did not even call Luapo as a witness although it was the action of Luapo in entering the land and being opposed by Lauti that brought the case to a head.
Lauti definitely claimed the land in the name Lauti. Asuega, although there is at present a Gaoteote living, does not claim the land in that name but in the name of Luapo a descendant of a former Gaoteote.
We have in this case to determine the title of what is evidently a desirable piece of plantation land between the villages of Vatia and Afono. It is on the sea and is watered from a stream. At the present time there is some cultivation on the land but apparently not regularly worked, yet for a period of at least thirty five years there has been no active cultivation and no one had actually developed the property. The evidence of use and occupation is largely traditional. Both parties have slept on their rights for many years but at last, Lauti has roused himself and made a definite claim of ownership backed up by his claims and overt acts. The testimony offered in this case is not material of which strong cases are made. But Lauti’s claim is stronger than the case made by Asuega and civil cases are decided upon the weight of evidence. The weight *552of evidence in this case is decidedly in favor of Lauti and accordingly the land Amalau as surveyed is awarded to the name and pule of Lauti.
Costs of $25.00 to be paid by Asuega and Luapo. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485004/ | DECISION
The land Tuasavaii offered for registration by Tapuitea comprises approximately two fifths of an acre and lies in the village of Fagatogo on both the north and south sides of the back road which runs approximately east and west. *553The land is divided by a stream entering it a little west of the middle of the southerly boundary and emerges at the northeast corner of the property.
The small portion of the land i.e. that which lies north of the back road, was about forty years ago leased by Ifopo Gatiso to Charles King, the husband of Tapuitea, and later when she married King, the testimony is that Ifopo gave her not only this piece of Tuasavaii but also the part south of the back road.
It is admitted by the objector that the portion of the land north of the road offered for registration is the property of Tapuitea but he denies that there was a valid gift to her of the southern portion of the land.
It appears from the testimony that Tapuitea was the daughter of a man named Fatu by his first wife Eleni; that Eleni died when Tapuitea was a child; that Fatu then married Talita the sister of Eleni and had by her a son Siomia, who later held the name Sarnia and that his son is the present holder of the name Sarnia.
It also appears that Tapuitea was adopted by Ifopo Gatiso (who appeared as a witness) when she was a child. This adoption is not admitted by the objector but if it is not true the question arises why did Ifopo give Tapuitea this land when she married if she was in the care of Talita and her husband. Why did not Talita give her this dowry through the name Sarnia?
There was a Sarnia (Motumotu) living at the time this gift of land was made to Tapuitea but the objector admits the gift of the north part of the land by Ifopo as valid as being made by Ifopo and not by Motumotu.
Evidently the pule of Ifopo in the land Tuasavaii is greater than that of Sarnia.
It was admitted that the pule of the Sarnia family at the time of the gift was in the name Ifopo.
*554The husband of Tapuitea built one European house on the north side of the road and another European house on the south side of the road. These houses have been built at least thirty five years and the King family has occupied them.
On the south side of the road there is also a Samoan house where Samia now lives. The testimony is contradictory as to who had this house built and which of the two families had occupied it. It is undoubtedly now occupied by the objector Samia.
The question for the Court to decide is primarily was all the land Tuasavaii on the south side of the back road as surveyed and offered for registration by Tapuitea given to her by If opo or a part of it, or none of it.
Certainly a part of this parcel has been used by Tapuitea and her family, the children of Charles King. Certainly now Samia occupies a part of this parcel under a claim of right. It is also true that members not only of the King and Samia family but also of Ifopo’s family are buried on this portion of the land.
Some, years ago, were buried, and some very recently i.e. Charles King. This burial plot lies to the east of the aforesaid stream.
It is impossible for the Court to ascertain in the light of the testimony given at the trial just how much of this parcel south of the back road belongs to Tapuitea and how much to Samia. The Court can only make such a decision as seems fair from the testimony taken at the trial.
It is the opinion of the Court:
1. That Tapuitea is undoubtedly the owner of the part of the surveyed parcel which lies to the north of the back road.
2. That Tapuitea should be adjudged the owner of that part of the surveyed parcel which lies south of the back *555road and which extends southerly to a line drawn from the westerly boundary of said land through the center of the mango tree between the King house and Sarnia’s house, extending to the middle of the creek.
3. That Sarnia owns the land south of this line and to the west of the creek to the southern boundary of the surveyed land.
4. Tapuitea shall be awarded that part of the surveyed land lying south of the back road to a line drawn from a point beginning at the breadfruit tree on the eastern boundary of the surveyed land and extending in a westerly direction to the point in the center of the creek where it meets the line projected from the western boundary of the surveyed land extending through the mango tree to the center of the creek.
5. That Tapuitea’s family and Sarnia’s family shall own in common the burial ground on the eastern side of the creek where members of their family are buried and shall hereafter have an equal right to use the same without let or hindrance from each other.
6. That Sarnia shall be awarded all the rest of the surveyed parcel south of the line mentioned in paragraph four hereof on the east side of the creek extending southerly of its southern boundary.
Court costs shall be paid — Tapuitea $12.50 — Sarnia $12.50. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485006/ | DECISION
The matai name Lemafa of Aunuu was filed for registration by Sope and the objection was originally filed in the name of Liae but the day before the trial Petelo was substituted as the objector and candidate for the name and this substitution was confirmed in open court.
Petelo offered his own and the testimony of his witnesses to support his contention that he is the grandson of a Lemafa Talagi; that Talagi was the first holder of the name Lemafa; that he, Petelo had lived three years as a school teacher in Aunuu and during that time had rendered active service to the last holder of the name Seau and had rendered less active service at other times.
Sope in behalf of his own candidacy offered his own and the testimony of his witnesses that he is the grandson of Lemafa Taale and a nephew of Lemafa Seau, being the son of Seau’s older brother; that he is fifty years old and has always lived in Aunuu and rendered personal service to Seau during his more than thirty one years incumbency of the title Lemafa and has lived and still lives in the house of Lemafa.
The proponent of the name, Sope, furnished the Court with a list of six holders of the name Lemafa beginning with Lemafa Aunuu. Petelo and his witnesses named but four holders of the name beginning with Lemafa Talagi.
The only holders of the name that both sides agreed upon were Paletua and Seau.
Petelo and his witnesses denied that there was a holder *559of the title named Taale and Sope and his witnesses denied that there was a holder of the name called Talagi. Petelo admitted that he never saw his grandfather Talagi and Sope stated that he just remembered having seen Taale when he, Sope, was a young boy. Two old men, both over eighty years, called as witnesses and testifying, the one for Petelo, that he had seen Talagi and the other one called by the Court as amicus curiae said that he had seen Taale.
The only Lemafas of which the Court has definite proof as a holder of the title are Seau and Paletua. Paletua is admitted by both sides to have been a holder of the name and Seau is registered as a Lemafa as of the year 1906 to the date of his death in 1936. Whether or not there was a Lemafa Paletua is immaterial as neither of the candidates before the Court is descended from him. The existence of Paletua as a holder of the name Lemafa would have been very material if Liae had remained a candidate.
Assuming that there was a Lemafa Talagi then we may assume that Petelo is his grandson and if there was a Lemafa Taale then we may assume also that Sope is his grandson. In any case there undoubtedly was a Lemafa Seau and Sope is admitted to be his nephew. This relationship of uncle and nephew is the one and only fact of evidentiary value regarding the hereditary rights of the respective candidates, which question is before the Court.
Assuming that Petelo and Sope are each a grandson of a Lemafa then their hereditary rights would be equal unless the relationship of Sope as nephew of Seau is considered. If their hereditary rights are equal then the court may take into consideration qualities of general fitness to hold the name.
Petelo is and has been a school teacher for many years and has lived in Aunuu three years in that capacity. Sope has lived there all his life and during the lifetime of Seau, *560at least, has lived in Seau’s house and rendered service to him as Lemafa.
It does not seem to the court that there can be much doubt in answer to the question that Sope has had a far better opportunity to become familiar with the lands and general affairs of the family than Petelo. He was in constant contact with Seau as Lemafa for at least thirty one years while Petelo even though he was loyal and faithful to his matai, living in the village only three years while engaged in duties of his profession.
Considering these facts and all the circumstances of the case, it is the opinion of the Court that the affairs of the Lemafa family would be administered to the best interests of that family by Sope rather than by Petelo and accordingly the decision of the Court is that the name Lemafa be given to Sope of Aunuu.
Costs of $25.00 to be borne by Petelo. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485036/ | DECISION AND DECREE
ARTHUR A. MORROW, Chief Justice.
The land Oloalii in Nu’uuli was surveyed by Taumua of Nu’uuli and offered by him for registration as his property on June 10, 1938. See Section 74 of the Codification. He filed the survey of the land at the time of the offer to register. Leapaga of Nu’uuli objected to the registration of the surveyed tract as the property of Taumua. Hence this litigation.
At the outset it should be stated that the proponent and the objector each claimed the land as his matai property and not as his individual property.
*58While there was some conflict in the testimony of the witnesses, it clearly appears therefrom that the essential facts in the case are as follows:
Shortly before the establishment of the Government in 1900, a former Taumua was living on and in possession of the land Oloalii and making use thereof. At the time of his death which occurred while he was still so occupying and using the same, his children voluntarily left Oloalii, and thereupon Leapaga went into possession and has so continued to the present time. The above Taumua is buried on the land as are several members of the Leapaga. The present Leapaga built a cement house on Oloalii more than twenty years ago and has lived in it ever since. Taumua and Leapaga are matais in the same family. Leapaga has been in the actual, visible and exclusive possession of the property for more than twenty years claiming it as his own matai land. There was no evidence that the Leapaga had actually ousted the Taumua from possession or refused to let him into joint possession with himself. The present Leapaga and the present Taumua do not desire to hold the land jointly.
Since there are no objectors to the proposed registration other than Leapaga it follows, under the uniform interpretation by this Court of the above Section 74, that claims, if any exist, of all persons other than the objector and proponent are barred.
In view of the evidence that both are matais in the same family and the further facts in the case, we conclude that at the time of the establishment of the Government, this land was, under Samoan customs, the property of the family of Leapaga and Taumua; that the two matais were at that time co-owners of the land. The extension of the jurisdiction of the United States to the Island of Tutuila in 1900 did not affect private land titles. 1 Hyde, Int. Law, p. *59235; United States v. Percheman, 7 Pet. 51, 86-87; Talo v. Poi, No. 16-1937; Ilaoa v. Toilolo, No. 5-1937.
If the two matais were co-owners at the time of the establishment of the Government, they were, according to the evidence, co-owners at the time the offer to register was made, unless the Taumua has lost his interest in the land through the operation of the doctrine of adverse possession.
As before stated, there was evidence that the Leapaga had been in the actual, visible and exclusive possession under a claim of ownership for a period of more than twenty (20) years preceding the offer to register.
This Court has decided that the Statute of 21 James I, C. 16, limiting actions for the recovery of real property, subject to certain exceptions not applicable here, to twenty years is a part of the law of American Samoa by virtue of Section 3(1) of the Codification of the Regulations and Orders for the Government of American Samoa. Talo v. Poi, No. 16-1937. It follows from this that if Leapaga was in adverse possession of the land as against his cotenant, the Taumua, Leapaga has the entire title.
That “A tenant in common may acquire title to the entire property by adverse possession, based on an ouster of his co-tenants, and an assertion of title to the entire property in himself” is well established. See 62 Corpus Juris, Tit. Tenancy in Common, Sec. 43, and cases cited. However, it is to be observed that under the legal principle stated there must be an ouster by one cotenant of another in order to make the doctrine of adverse possession applicable.
Referring to subject of “ouster” by one cotenant of another, Tiffany in his work on Real Property says at pp. 389-90, “In the case of cotenants, since each is entitled to the possession, the mere fact that one is in possession and the other is not does not presumptively show an ouster, as *60is the case as between strangers. Nor will it be shown by the mere appropriation by one cotenant of all the rents and profits, though such appropriation may have that effect if accompanied by a notorius [sic] claim to the exclusive ownership. The refusal to let a cotenant into possession, with knowledge of his claim of title, accompanied by a denial thereof, constitutes an ouster; but it does not result from the making of a deed for the whole property by one cotenant, though it will generally be presumed if the grantee enters and claims the whole title. The cotenant who is excluded from possession must in all cases have actual or constructive knowledge of the facts constituting the alleged ouster in order to give the acts that character for the purpose of asserting a title by lapse of time.” To the effect that there must be an ouster in order that one cotenant may assert adverse possession as against another, see McClung v. Ross, 5 Wheat. (U.S.) 116; Stevens v. Wait, 112 Ill. 544; Killmer v. Wuchner, 74 Iowa 359. And that the cotenant ousted must have had knowledge, actual or constructive, of the facts constituting the ouster before his co-tenant can assert title through adverse possession is established by Barr v. Gratz’s Heirs, 4 Wheat. (U.S.) 213; McClung v. Ross, supra, Packard v. Johnson, 57 Cal. 180; Grand Tower Min., Mfg. & Transp. Co. v. Gill, 111 Ill. 541; Warfield v. Lindell, 30 Mo. 272, 77 Am. Dec. 614, 38 Mo. 581, 90 Am. Dec. 443; Culver v. Rhodes, 87 N.Y. 348.
The mere fact that Leapaga had possession of the land Oloalii to the exclusion of Taumua for more than twenty (20) years preceding the offer to register does not of itself prove an ouster; nor does the fact that Leapaga appropriated the fruits of the land to the use of himself and his children for that period. It does not appear from the evidence that Leapaga at any time prior to the beginning of the twenty year period preceding the offer to regis*61ter refused to let the Taumua into joint possession with him. While there was evidence that Leapaga claimed the land as his own matai property for twenty years preceding the offer to register and while his possession was actual, visible, and exclusive during that time, still it did not appear that notice of his claim of sole ownership was brought to the actual notice of the Taumua twenty years prior to the offer to register. And we do not think, in view of Samoan customs as to the use of family land, that Taumua can be charged with constructive knowledge of Leapaga’s claim of sole ownership. As far as the Taumua are concerned the actual, visible and exclusive possession by Leapaga during the period of his occupancy is perfectly consistent with a belief on the part of the Taumua that Leapaga’s occupation was that of .a cotenant of Taumua, and not under a claim of sole ownership and consequently adverse to the interest of the cotenant Taumua. It follows from what has been said that Leapaga’s possession was not adverse to Taumua and that both matais were co-owners of the land Oloalii at the time of the offer to register.
It was apparent at the trial and at the time of the visit of the Court to view the land in the presence of the proponent and the objector prior to the trial that they do not wish a joint possession of the land.
In view of the fact that Leapaga has put up a cement house on the property together with a cook house, Taumua having made no improvements thereon, it would be inequitable to decree joint possession. It is possible to make a decree dividing the land between the two matais and registering it which will be equitable considering the nature of the property and the fact that all of the improvements thereon have been made by Leapaga. Fortunately the Court had the advantage of a view of the property just prior to the trial.
*62It is hereby ORDERED, ADJUDGED and DECREED that the following described land be registered as the communal family land of the Leapaga:
Beginning at a point from which the following bearings and distances were taken:
Center of Puailoa’s Samoan house 125 degrees 5 minutes distance 25 feet, Northeast corner Leapaga’s European house 199 degrees 45 minutes distance 33 feet; Northwest corner the same house 234 degrees 29 minutes distance 46 feet; center of Puailoa’s grave 252 degrees 5 minutes distance 50 feet; Southeast corner of Leapaga’s cement house 327 degrees 56 minutes distance 33 feet 4 inches. Thence from said point 476° 59' for 119 feet; thence 9° for 93 feet 5 inches; thence 97° 52' for 118 feet 3 inches; thence 188° 53' for 91 feet to the point of beginning.
And it is hereby ORDERED, ADJUDGED and DECREED that the following described land be registered as the communal family land of the Taumua:
Beginning at a point which is the westerly end of the abovementioned boundary with a bearing of 276° 59' and a distance of 119 feet; thence 276° 59' for 66 feet 8 inches; thence 284° 17' for 52 feet 10 inches; thence 9° 47' for 88 feet 7 inches; thence 97° 52' for 118 feet 3 inches; thence 189° for 93 feet 5' to the point of beginning.
It is further ORDERED that Leapaga shall have until April 20, 1939, to remove from that part of the land Oloalii above ordered, adjudged and decreed to be registered as the communal, or family, land of the Taumua any cook house or other improvement erected thereon by Leapaga.
Costs in the sum of $12.50 are hereby assessed against Leapaga; and costs in the sum of $12.50 are hereby as*63sessed against Taumua. All costs to be paid by April 20, 1939.
The Associate Judge concurs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485531/ | On June 2, 1986 this Court sentenced the above named defendant for burglary of the United States Post Office in this Territory. The court ordered probation of sentence on the condition that Defendant conduct himself as a law abiding citizen. The Court further ordered Defendant to jail lor a period of one year.
Defendant now appears before us convicted of a burglary of the Burns Philp Stare on June 14, 1986,.
One might ask "How can this happen? How can a person sent to jail for one year commit a burglary less than two weeks later?"
The answer is simply that the Department of Public Safety ignored the Court's order and for reasons known only to itself, released the Defendant.
*64To make matters worse the following scenario has occurred. The Defendant once again appeared before this Court for sentencing on the Burns Philp crime. The Court sentenced the Defendant to five years imprisonment. We also revoked his probation on the Post Office crime and imposed a five year sentence. Defendant has now been sentenced to a total of ten years imprisonment. He now at last is in jail; right? Wrong.
According to papers filed by the Attorney General's office, the Defendant was seen at liberty on the very afternoon of his last sentencing.1 Defendant perhaps has friends (or relatives) in high places.
Our system of government is supposed to operate something like this: The Legislature passes laws making certain acts criminal. When those laws ore violated the Executive prosecutes. If convicted the Judiciary sentences. Since neither the Legislatures nOr the Judiciary have jails, the Defendant is remanded to the Executive for execution of the sentence. When the Executive refuses to follow the sentence, the system collapses. True, the Legislature has granted the Executive powers of pardon and parole. These powers are closely defined in Chapter 27 Title 46, A.S.C.A. They do not give the Executive carte blanche to ignore court orders and sentences or to ignore statutes duly enacted by the Legislature.
The people of this Territory are entitled to governmental protection from convicted criminals. What can be done when the Department of Public Safety simply decides to turn loose a convict contrary to his sentence or statutory eligibility for parole? There seems to be very little judicial precedent for this situation. Prisoner's rights cases usually get before the Courts when the Executive is allegedly mistreating a convict. When the Executive decides to refrain from carrying out an order of imprisonment, naturally the Defendant will not complain. Both the Office of the Attorney General and Department of Public Safety are creatures of the Executive. It seems anomalous that the Attorney General prosecutes and asks for a *65sentence, and when the Court imposes the sentence the Department oi Public Safety decides to ignore it. It doesn't help to call the release a furlough, a work release (this Defendant has no job), reward for good behavior. Compassionate leave, etc. The point is, the Executive is mandated to carry out the directions of the Legislature and the judiciary. When it refuses to do so our form of government becomes a mockery.
The scenario above described is not without humor. But when a victim of a rape, robbery or burglary or the relatives of a homicide victim see the criminal enjoying his freedom a short time after sentencing it really is not funny at all.
Admittedly, as anyone who lives here knows, many facets of our government are quaint, colorful and don't work very well. To reduce the criminal justice system oi American Samoa to the level of make-believe must he very discouraging to the police and prosecutor. It certainly is to the author of this opinion.
A newspaper account of this incident' gave as explanation a statement by the Worden that he "had not received a written sentence." In fact a written sentence .was .entered last June and has -been steadfastly ignored Í | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485532/ | Defendant was charged with one count of murder in the second degree and two counts of assault in the first degree. The government alleged that during a dispute between defendant’s family and a neighboring family in the village of Amaluia, the defendant had fired a shotgun at a group of boys, killing Taesale Nelson and injuring two others.
At trial there were two issues: whether defendant actually fired the fatal shot and whether he did so under the influence of an extreme mental or emotional disturbance such as would reduce-the crime to manslaughter.
Defendant had confessed to firing a shotgun at some person or persons whom he believed to have set a fire in an unoccupied house owned by his father. The part of his statement admitted into evidence did not indicate, however, whether his shot actually hit anyone. The person or persons■at.whom he fired were standing by a mango tree near the house, which is where the two surviving boys testified they 'had been standing. . One of the people at whom the defendant shot had thrown something at the house; one of the injured boys admitted having thrown rocks at the house, ostensibly in an attempt to put out the fire.
No witness, however, definitely identified the defendant as having fired the fatal shot. There was some testimony (albeit vague and of uncertain reliability) concerning another gun and perhaps other shots at Amaluia that night. Nor was there any ballistics evidence establishing whether defendant's shotgun was the murder weapon; unlike a rifle bullet, a pellet fired from a shotgun does not yield its source upon expert examination, and it is not clear whether other tests would have been helpful.
*68At the conclusion of the evidence, both judges were strongly of the opinion that the shot fired by the defendant was the same one that killed Sale Nelson and injured the two other boys. We did not, however, believe that the evidence established this beyond a reasonable doubt. We were therefore bound to acquit the defendant of murder.
The Court did find, however, that the defendant fired at someone. We rejected defense counsel's contention that a defendant's belief that someone has set fire to a vacant building constitutes an "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse" sufficient to convert murder into manslaughter. Noting the well-established presumption that one who fires a gun at someone intends to kill him, the Court therefore found defendant guilty of assault in the first degree. The Court based this verdict on A.S.C.A. S' 46.3520(a)(2) ("A person commits assault in the 1st degree if . . . he attempts to kill or to cause serious physical injury to another person.").
Since the evidence did not establish beyond a reasonable doubt either that the defendant had intended to shoot more than one person or that he actually did shoot more than one person, he was acquitted of the two second-degree assault counts.
Several days after the verdict had been rendered, defense counsel moved for arrest of the judgment. The basis for this motion was that the Court had convicted the defendant of a crime with which he? was never charged.
It is true that the information on which the defendant's conviction was based charged only second degree murder. The defense concedes, however, as it clearly must, that if first degree assault is an offense included within the crime charged in the information, the conviction is valid. A.S.C.A. § 46.3108. The defendant was convicted of first degree assault . on the ground that he attempted to kill someone, and an attempt to commit a crime is always an offense included within that crime. A.S.C.A. & 46.3108(3). The defense argues, however, that defendant was charged only with a particular kind of second degree murder, and that the offense of first- degree assault is not included within this kind of murder.
*69The operative language in the information is as follows:
The above named defendant is charged with the crime of Murder in the Second Degree in that on or about April 12, 1986, at or around 11:00 p. m., at or near Amaluia, American Samoa, he recklessly engaged in conduct which create (sic) a grave risk of death and thereby causes the death of another person, to wit: defendant fired a shotgun toward certain people at night causing the death of Taesale Nelson in violation of A.S.C.A. 46.3503; Murder in the Second Degree; A Class A felony; Maximum penalty - Life Imprisonment.
The defendant's contention is based on the inclusion of the word "recklessly® in the informations Since he was charged not with intentional murder but with mere recklessness, an attempt cannot be included within the charge. There is no such thing as attempted recklessness, since ®n attempt requires intent whereas recklessness implies something less than intent.
Before addressing defendant's argument it is necessary to clarify the standards against which the information must be judged. There are many thousands of reported cases from other jurisdictions concerning the sufficiency of indictments and informations. Many of these cases take an extremely narrow view of the power of courts to construe such documents. These decisions seem to have been motivated by three principal concerns:
(1)The neéd for a defendant to have adequate notice of the nature of the charge against him in order to prepare his defense;
(2) Regard for the separation of powers between grand juries, which have the sole power to- indict, and courts, which must take indictments as they find them;
(3) A vestigial English common law attitude toward documents used to commence legal proceedings. Prior to the reforms instituted in most United States jurisdictions within the last hundred years, failure to plead properly was fatal to- a civil or criminal action even when the failure was purely technical and everyone knew the intended *70meaning of the pleadings. Even after the attempted legislative repeal of this situation, some courts have continued to apply hypertechnical rules of pleading to criminal indictments.
We in American Samoa need be concerned only with the first principle. 1 Indictment by a grand jury is not required by law? rather, A.S.C.A. S 46.1220 provides that felonies shall be initiated by criminal information. Moreover, the Territorial Court Rules of Criminal Procedure make it clear that the information need not comply with traditional common law standards so long as it includes a "plain, concise and definite written statement of the essential facts constituting the offense charged." TCRCrP Rule 7. Cf. Hagner v. United States, 285 U.S. 427, 431 (1932) ("The rigor of old common law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded.") This standard is essentially the same as that imposed by the Sixth Amendment to the United States Constitution, which guarantees the accused the right "to be informed of the nature and cause of the accusation."
We believe that the test imposed by the Constitution and by Rule 7 --- that the information state the essential facts in a way that gives the defendant fair notice of what he is being charged with --- was met in this case.
The information stated that defendant "fired a shotgun toward certain- people at night causing the death of Taesale Nelson." Standing alone, this language Would have been enough to support a conviction for intentional second degree murder. It is well established that a trier of fact is justified in finding, from the fact that the defendant has fired a gun at someone, that he *71intended to kill that person. See, e.g., Morgan v. State, 242 A. 2d 831 (Md. App. 1968); Young v. State, 384 S.W.2d 710 (Tex. App. 1964); State v. Leedom, 76 N.W.2d 773 (Iowa 1956); State v. Buchanan, 252 P. 2d 524 (Idaho 1953), The absence of the word "intentionally* in the description of the defendant's act, therefore, does not affect its validity or its meaning. An indictment or information "must be read to include facts which are necessarily implied by the specific, allegations made." United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), cert. denied, 402 U.S. 953 (1971). Thus, for instance, the failure of an indictment to charge that an act was done "willfully" is no bar to conviction of a crime of which willfulness is one of the elements, provided that willfulness is implicit in the allegations set forth. Phelps v. State. 439 So. 2d 733 (Ala. App. 1983), and cases cited therein; Rumely v. United States, 293 F. 5312 (2d Cir.) cert. denied, 263 U. S. 713 (1923), and cases cited therein. Similarly, an indictment charging the defendant with seizing and abducting someone is not invalid for omitting the word "knowingly," since the act of seizing and abduction implies knowledge. United States v. Martell, 335 F.2d 764 (4th Circ. 1964). See also Hagner v. United States, supra (since the law presumes that a letter posted in a mailbox is delivered to its destination, an allegation in an indictment that a letter was posted is deemed to allege actual delivery).
The information concluded that the defendant had killed Taesale Nelson "in violation of A.S.C.A. 46.3503, " without specifying any particular-subsection of that statute. Thus both the statement of fadts and the statutory reference gave defendant fair notice to be prepared to defend himself■against second degree murder --- not only against "reckless"' second degree murder, as defined in A.S.C.A. § 46.3503(3), but also against "intentional* second degree murder (A. S.C.A. S 46.3503(1)), and "knowing" second degree murder (A. S.C.A, § 46.3503(2)-). The inclusion in another clause of the information, outside the statement of facts, of a conclusion of law --- that the stated conduct had been reckless --- was mere surplusage which the Court would have ordered stricken from the information had this been requested at any time before or during trial, See TGRCrp Rule 7(d).
Our holding might be different if we believed that the defendant had actually been misled by the inclusion of the word "recklessly* in the *72information. The whole course of the proceeding from the arrest of the defendant through the closing arguments of counsel, however, is rife with indications that defendant was on notice to defend (and seems actually to have defended) against intentional second degree murder:
--- The primary evidentiary basis for the information was defendant's own statement that, upon seeing some people throwing things at a vacant house occupied by his father, he had taken his gun, aimed it at them, and fired. Defendant and his counsel were at all times aware of this statement and of the prosecution's heavy reliance on it.
--- The information itself, in two other counts charging defendant with assault upon the two victims who did not die, stated that defendant "causes or attempts to cause physical injury." (Emphasis added.) This phrase, another bit of boilerplate which was unnecessary to the indictment, was used in reference to the very same shotgun blast that was the basis for the count on which defendant was convicted. To the exact extent that defense counsel was paying any attention to the irrelevant legal conclusions peppered throughout the indictment, he should have been prepared to defend against a charge that the gun was fired at the victims intentionally rather than recklessly. (While these counts refer to an attempt to injure rather than to kill, they negate any inference that the government was limiting itself to a theory that the shot was fired randomly rather than directly at the people. In the absence of such an inference, the intent to kill may be inferred from the firing of a deadly weapon at the victims. See, e.g. Morgan v. State, supra; Young v. State, supra; State v. Leedom, supra; State v. Buchanan, supra.)
--- The references to the defendant's act in the brief opening statements of counsel suggest that one of the points at issue was whether defendant intended to hit the people he shot at. The prosecutor referred to the defendant's confession "that he was the one that shot these three boys," whereas defense counsel stated that defendant had "kept control of his anger until he saw a fire burning in his father's home on the same property, and that's when he became extremely disturbed by what happened and that's when in his anger he took the shotgun and came to the place where his father's home was burning and observed *73some figures . . . and that's when he fired a shot in that general direction."
--- When the police officer who had taken the defendant's statement was reading it into evidence, the defense counsel objected to the translation of the Samoan word "ta’i* as "aim’’ suggesting that instead the word should be translated as "point.” The principal effect and apparent purpose of this objection, which the Court and both counsel took seriously enough to discuss for several minutes, was to suggest that the defendant may have fired his gun without intending to hit anyone. (Although whether the defendant was trying to hit anyone is indirectly relevant to whether he succeeded, this dispute was far more directly relevant to the question of intent.)
--- In the prosecutor's closing statement he read all three subsections of A.S.C.A. S 46.3503 and attempted to show that the defendant was guilty of second degree murder under each subsection--intentional, knowing, and reckless.2 Defense counsel did not object at that time to this unmistakable attempt to persuade the court to convict the defendant of a crime with which it now contends he was never charged. Nor did defense counsel even refer in his closing statement to the prosecution's attempt to effect what he now contends was an impermissible expansion of the indictment. Instead, he took issue on the merits with the prosecutor's contention that his client had aimed the gun at Taesale Nelson rather than merely firing in a general direction.3
*74--- In his rebuttal statement the prosecutor found it necessary to respond to these statements by defense counsel, citing two cases to the effect that a person who fires a gun at someone is presumed to intend the natural consequences of his act. Once again defense counsel failed to object.
The conclusion we draw from this sequence of events is that the defense, like the prosecution and both judges, was proceeding on the assumption that the defendant had been charged with intending the foreseeable consequences of his actions. ' Since defense counsel's principal preoccupation was understandably with defending against a murder charge, and since eith.er a finding of reckless or of intentional killing would have sustained such a charge, the distinction was obviously not one which the defense emphasised. But counsel made the point, and made it repeatedly.
The alternative conclusion --- that the defense always regarded the word "recklessly" as an essential limiting term in the indictment, but withheld its objection to the prosecutor's contrary statements until after trial, and even drew the Court into a controversy over the deliberateness of the defendant's action --- would justify a holding that the right to object to any variance between the information and the conviction had been waived. See, e.g., Odom v. State, 375 So. 2d 1079 (1979 Fla. App.), in which the defense waived a variance between the indictment and the conviction by not objecting to jury instructions on a crime not included within the offense charged in the indictment. If this had been a jury trial-, the Court would have instructed the jury on first degree assault as a lesser - included offense of second degree murder, and a failure to object would have been a waiver. In this case the equivalent stage of the proceedings was the closing argument, in which each counsel had a chance to argue the law to the - judges before they conferred on a verdict.4 *76The prosecution explicitly and unequivocally argued that the defendant should be found guilty of intentional murder, and the defense responded by contesting the charge on the merits rather than by asserting its inconsistency with the information.
Our observations are in no way inconsistent with the public defender's post-judgment affidavit to the effect that "if this case had been tried under the Assault in the First Degree section . . . my advice would have been to the defendant that he testify on his own behalf in order to have confronted the mental element."5 For under no imaginable circumstances could the government have been bound to try the defendant only on the assault charge. If the information had used the word "intentional" to describe the alleged murder, the crime of assault in the first degree would quite clearly have been a lesser included offense. Yet defense •counsel would then have faced the very dilemma he did face at the trial: in the words of counsel's own affidavit, the government would still have "needed to prove that defendant did indeed cause the death," and counsel would presumably have been reluctant to risk the possibility that defendant's testimony would resolve the Court's doubts on this question.
In conclusion, we deny this motion because we believe the wording of the information did not prevent defendant from receiving a fair trial. (A trial, it will be recalled, in which he was acquitted of murder despite the belief of both judges that he had been proven guilty by a strong preponderance of the evidence although not beyond a reasonable doubt.) To decide that a defendant charged and proven to have fired a shotgun at people can be convicted of no felony at all unless he-is found beyond a reasonable doubt to have hit his target, would be to attribute either to the *77Fono or to the United States Constitution an absurd intention. We choose instead to "follow the admonition of Sir Matthew Hale and Lord Ellenboraugh . . . when they say that, 'if the sense be clear, nice exceptions ought not to he regarded,' . . . nor 'an overeasy ear be given to exceptions whereby v more offenders escape than by their own innocence, to the shame of the government, to the encouragement of villany, and to the dishonor of God, United States v. Howard, 132 F. 325, 333 (W.D. Tenn. 1904).
The motion in arrest of judgment is denied.
Another reason often cited by courts for requiring precision in indictments is to ensure that both the government and the defendant know for which other crimes the defendant might be prosecuted without exposing him to double jeopardy. Although this has not been an issue in the present case, we do note that in the case principally relied on by the defendant, the court overturned a felony murder conviction based on a first-degree murder indictment, but allowed the defendant to be re-tried on the felony murder charge. Watson v. Jago, 558 F.2d 330 (1977).
The Prosecutor’s argument included' the following statement with reference to intentional murder t
Murder in the second degree reads- as follows: A person commits the crime of murder in the second degree if one, he intentionally causes death of another person. The defendant here intentionally caused' the death of that other person, Nelson. He knew these . pteople were standing there. It was lighted. He came out there and he shot them intentionally.
The public defender emphasised this point both in his discussion of causation and in his discussion of the defendant's state of mind. In *74discussing state of mind, ■ counsel reiterated his earlier assertion that the defendant "didn't shoot the gun at Nelson."
Defense counsel's citation of Watson v. Jago, 558 F.2d 330 (6th Cir. 1977), is inapposite. That case, although it held that a constructive amendment of the indictment from intentional murder to felony murder prejudiced, the defendant and *75therefore denied him due process of law, rested squarely on a point of Ohio state law. The Ohio Supreme Court had held that intentional murder and felony murder, although described in the same statute, were two different crimes. Thus Watson was distinguished in its own circuit in Blake v. Morford, 563 F.2d 248 (6th Cir. 1977), on the ground that the Tennessee state courts continued to follow the common law tradition in which "there was but one kind of murder." Id. at 251.
It is instructive to note that the indictment upheld by the Sixth Circuit in Blake was a good deal less informative than the information in this case. It made no mention at all of the charge that the murder had been committed in the course of another felony, yet the court held that the "common law form" indictment for murder --- alleging that the defendant "did unlawfully, feloniously, wilfully, deliberately, premeditatively, and of malice aforethought kill and murder" the victim--was sufficient to charge felony murder.
In contrast to the Ohio statute at issue in Watson. A.S.C.A. §' 46.3503 does not describe three different crimes, but one crime for which proof- of any of several states of mind greater than mere negligence but less than "with deliberation" will suffice. Indeed, the inclusion of "reckless disregard for human life" as a mental element sufficient to prove second degree murder seems to have incorporated the reasoning of cases holding that proof of reckless disregard for human life was conclusive evidence of - an intention to’ kill. See, e. g. People v. Carter, supra. These cases, in turn, were attempts to deal with the problem that defendants rarely admit to having intended to kill their victims. The circumstantial evidence surrounding any killing which was neither merely negligent nor apparently committed "with deliberation" will invariably leave some doubt about whether the defendant actively desired" the death of his victim. The decision of the Fono to prescribe an identical penalty for second degree murder regardless of what state of mind is proven suggests that it was attempting to deal with this evidentiary problem rather than to define three different crimes. In any case, however, we stress that the defendant here, unlike the defendant in Watson, was put on notice by the information that he could be convicted of intentional second degree *76murder.
We do note, however, that in- light of the many reasons a defense counsel may have to keep his client off the stand, and - in light of the impossibility of hypothesising the reactions of the prosecution and the Court itself to such testimony by the defendant had it occurred, the Court must attach little weight to such after-the-fact statement. This is particularly true where, as here, the difficulty might have been avoided or mitigated by a timely motion or objection. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485008/ | *564DECISION
This is an action to determine the owners and the extent of their respective holdings in a piece of land in Vailoatai containing 4.213 acres and having dimensions 917.5 feet by 200 feet.
The land was surveyed at the request of Pan American Airways System and the plat was filed in the office of the Registrar of Deeds with notice to claimants to file their claim of ownership.
Four persons filed claims and four persons filed objections. These claims and objections are herein adjudicated giving the area and dimensions of each holding as determined by the Court. The dimensions will be given in feet beginning on the north then to the east, south and west successively.
1. Tuia T. filed a claim for the parcel on the extreme western side of the plat containing 0.757 acres having dimensions 177.32 feet x 200.87 feet x 158.65 feet x 200 feet. There was no objection filed to this claim and this land is accordingly awarded to Tuia T. No costs.
2. Maiavatele and Tuia S. filed for parcel of land adjoining Tuia T. to the east, each claiming one half of the parcel. This parcel contains 1.623 acres and its dimensions are 316.99 feet x 201.88 feet x 379.47 feet by 200.87 feet. Maiavatele claims the western half of this parcel and Tuia S. claims the eastern half. An objection was filed by Tuatagaloa to the western part of Maiavatele’s half. Tuatagaloa claims a parcel 0.357 acres and having dimensions 79.20 feet x 200.87 feet x 79.20 feet x 200.87 feet. The claim of Tuatagaloa was not contested by Maiavatele and is accordingly allowed and this piece of land is awarded to Tuatagaloa without costs.
*5653. The remaining half of the whole parcel claimed by Maiavatele is awarded to him. Maiavatele’s parcel therefor contains 0.4545 acres and has dimensions as follows 79.295 feet x 200 feet x 110.535 feet x 200.87 feet.
4. The remaining half of this parcel (total 1.623 acres) therefor contains 0.8115 acres and has dimensions as follows 158.495 feetx 100.94 feet x 189.735 feet x 100.435 feet. Of this part Sama claims the eastern half, a piece containing 0.631 acres in area and having dimensions 119.55 feet to the ravine on the east, then south along the center line of said ravine to the southern boundary then west 136.21 feet x 201.88 feet.
The Court has heard the testimony of Tuia S. and Sama and their witnesses for and against this claim. The testimony of the two parties and their witnesses was almost wholly contradictory on the question of the pule of the Sama and Tuia families and on the question of the use and occupation of the contesting parties. In the voluminous testimony offered but one material and relevant fact was established beyond a doubt and that was that Sama has had a house on this piece of land and has lived in it. Tuia admitted that he had never had a house on the land although his witness Faauaa stated that he had had a house there. This is a slender reed upon which to lean in the decision of an important case but in an absence of other reeds the Court must grasp it. Cases are decided upon the weight of evidence and this reed weighs the scale in favor of Sama and his claim. The parcel of the surveyed plat claimed by Sama is accordingly awarded to him.
5. The balance of the plat claimed by Tuia S. and not contested is awarded to him. This parcel contains 0.1805 acres. Its dimensions 38.945 feet x 201.88 feet x 53.525 feet x 200 feet. Costs of this action amounting to $12.50 to be paid by Tuia S.
*5666. Faauaa claimed the parcel on the extreme east of the surveyed plat. This parcel contains 1.833 acres and has dimensions 423.19 feet x 200 feet x 379 feet x 38 feet to the ravine on the western boundary and thence extending northerly along the center of the ravine to the northern boundary and the place of beginning.
Satele Teutusi claimed a piece of this land 0.4986 in extent and 100 feet x 203.38 feet x 100 feet x 203.38. This claim was subsequently withdrawn by Satele Teutusi.
Lopa and Melema claimed a piece of Faauaa’s land 0.418 acres in extent and having dimensions 111.19 feet x 200 feet x 74.24 feet x 203.38 feet.
This claim and objection were tried by the Court and after hearing the testimony brought forward by Faauaa and Lopa and Melema and their respective witnesses the court is of the opinion that Lopa and Melema have adduced evidence of ownership more convincing than that offered by Faauaa. The High Court case, Faauaa v. Alaipalelei was referred to by Faauaa as sustaining his claim but an examination of the survey and decision in this case does not sufficiently identify the land now in question as a part of Vaimanu. It is accordingly adjudged that of this parcel of land Faauaa be awarded the part containing 1.415 acres and having the following dimensions, beginning at the ravine on the west 312 feet x 203.38 feet x 305.14 feet to the ravine on the south and northward along center line of this ravine to the northern boundary. The costs of $12.50 to be paid by Faauaa.
7. That Lopa and Melema be awarded the extreme western part of this land having an area of 0.418 acres and having dimensions as follows — 111.19 feet x 200 feet x 74.24 feet x 203.38 feet.
The lands awarded in this decision are accordingly as follows — Tuia T. 0.757 acres, Tuatagaloa 0.357 acres, *567Maiavatele 0.4545 acres, Tuia S. 0.1805 acres, Sama 0.681 acres, Faauaa 1.415 acres and Lopa and Melema 0.418 acres. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485010/ | DECISION
This litigation involves the right to the matai name Tauese. Sefe filed for the name and Elekana filed an objection and became a candidate for the name himself.
For many years the law for the guidance of the High Court in the decision of matai name cases was to the effect that the name should go to the candidate with the best hereditary right. This law was abrogated in November 1937 when the Fono passed a resolution, later approved by the Governor, providing as follows:
That the High Court shall be guided by:—
a. The wish of the majority of .the family.
b. The forcefulness, character, personality and leadership of the candidate.
c. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary; otherwise, the male descendant shall prevail.
d. The value of the holder of the matai name to the Government of American Samoa.
We shall first consider the rights of the respective candidates on the issue of the wish of the majority of the *575family. It is very clear from the evidence that Sefe has a superior right on this issue. The petition signed by the members of the family in his behalf, and introduced in evidence, has 70 signatures on it. Elekana’s petition has only 20. The testimony of Elekana himself shows that at a family Fono held the night before the case was heard it was agreed by all present, with the possible exception of Elekana himself, that Sefe should have the name. At the beginning of the trial Elekana stated that at the above Fono it was also agreed that he was to withdraw his objection at the opening of the trial the next morning, but later changed his mind after talking with his father.
In the light of what transpired at the family Fono, coupled with the fact that 70 signed for Sefe and only 20 for Elekana, there is no doubt whatever that the majority of the family desire Sefe as the matai.
On the issue of forcefulness, character, personality and leadership, the opinion of the court from the evidence is that Sefe has more capacity for leadership than Elekana. The evidence shows that last year Sefe cut three tons of copra while Elekana only cut one ton. It also appears that Sefe was an agent for the Board of Native Industry last year to collect tapa cloths in Manua, and that he collected two or three hundred every other month to send to Tutuila. Elekana has had some experience in building houses. Both attended Poyer School in Tutuila. Sefe graduated but Elekana quit before graduation because he was over age. Sefe attended the Teachers Institute for the L. M. S. after graduating from Poyer. There is no evidence that Elekana went to school after leaving Poyer. On account of Sefe’s superior education and greater industry we believe that his capacity for leadership is greater than that of Elekana. It follows therefore that Sefe’s right to the name on the second issue is superior to that of Elekana.
*576On the issue of best hereditary right, the evidence is to the effect that Sefe is a grandson through his mother of Tauese Fauato and that Elekana is the great grandson through his grandmother of Tauese Mataila; and that Tauese Mataila was a descendant of certain other Taueses. Elekana’s genealogy filed in the case and sworn to as correct by him at the trial shows that he has one eighth Tauese blood in his veins. Sefe is a grandson of a Tauese and therefore has one quarter Tauese blood in his veins, or twice as much as Elekana. The evidence shows that the Tauese blood in each of them comes through the female line. From the foregoing it is apparent that Sefe has a better hereditary right to the name than Elekana.
On the issue of value to the Government of American Samoa our conclusion from the testimony is that both candidates stand on substantially the same basis.
From what has already been said it is clear that Sefe is entitled to the name Tauese. He has the superior right because he prevails over Elekana on the first three issues, namely: 1. the wish of the majority of the family; 2. forcefulness, character, personality and leadership; and 3. the best hereditary right to the name.
The Clerk of the High Court will advise the Attorney General to register Sefe for the matai name Tauese. Costs of $25.00 are hereby assessed against Elekana, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485011/ | DECISION
This litigation involves the right to the matai name Tupa’i. Sekoti filed for the name and Letomia filed an objection and became a candidate for the name. Formerly the law was to the effect that the High Court in deciding a matai name case should award the title to the candidate with the best hereditary right. The 1937 Fono passed a *578resolution, later approved by the Governor, that the High Court in the trial of matai name cases should be guided by the following in the priority listed:
1. The wish of the majority of the family.
2. The forcefulness, character, personality and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary; otherwise, the male descendant shall prevail.
4. The value of the holder of the matai name to the Government of American Samoa.
This is the law now.
At the outset it should be stated that the Court does not make the law. The Court takes the law as it finds it, deduces the facts from the evidence, and then applies the law to the facts, and thereby reaches a decision.
The first issue to be considered in connection with the two candidates for the name is the wish of the majority of the family. Petitions signed by various members of the family were filed in the case and introduced in evidence at .the trial. On Sekoti’s petition asking that he be given the name there were 69 signers. On Letomia’s 15 signers. Letomia objected to five of the signers on Sekoti’s petition, claiming that these five were not members of the family; however, Letomia admitted at the trial that all the remaining 64 signatures were properly on the petition for Sekoti. It is not necessary for the Court to determine whether the five names objected to should be counted or not. Conceding for the sake of argument, but not deciding, that all five should be excluded, Sekoti still has more than four times as many names on his petition as Letomia. It is apparent therefore, that a great majority of the family desire Sekoti to be the matai and only a small minority *579desire Letomia. On the issue of the wish of the majority of the family Sekoti’s right to the name is decidedly superior to that of Letomia.
On the issue of forcefulness, character, personality and leadership the evidence shows that there is not a great deal of difference between the candidates. However, on this issue we think that the scales favor Sekoti to some extent because his education is superior to that of Letomia. From the evidence it appears that Letomia attended school only about three years. Sekoti it appears attended the Pastors School and was in the sixth grade. From the standpoint of education Sekoti should be better qualified for leadership than Letomia and the Court so finds on this issue.
On the issue of value to the Government of American Samoa the Court finds from the evidence that both candidates stand' on substantially the same basis.
On the sole remaining issue to be considered, that of. best hereditary right, it appears from the evidence that Sekoti’s mother’s brother held the name Tupa’i. In other words Sekoti is a nephew of a holder of the name. The genealogy of Letomia which was introduced in evidence shows that he is a grandson of Tupa’i Lolo. The Court finds that it is not necessary to decide whether Sekoti, a nephew of a Tupa’i has a better hereditary right to the name than Letomia, the grandson of a Tupa’i. Let it be. conceded for the sake of argument that Letomia has the better hereditary right, still he would not be entitled to the name under the new 1937 law. The Court must in deciding a matai name case give more weight to the wish of the majority of the family than to the matter of best hereditary right. The law clearly means, since it states that the matters to be considered by the Court are to be considered in the priority listed, that the wish of the majority of the family in favor of one candidate shall be given more weight than the better hereditary right in the *580other candidate. In other words if one candidate has the majority of the family with him and his rival candidate has the better hereditary right to the name, then, other things being equal, the Court must under the law award the name to the candidate who has the majority of the family with him.
Also the law means that, other things being equal, a candidate who prevails on the second issue will prevail over a candidate with the better hereditary right, for the Court must give more weight to forcefulness, character, personality and leadership than to the best hereditary right.
Since the Court has already decided that the evidence shows that a great majority of the family desire Sekoti, and that Sekoti has the superior right on the issue of forcefulness, character, personality and leadership, it follows that he is entitled to the name even if it be admitted for the sake of argument that Letomia has the better hereditary right. It is decided that whether he has or not, still Sekoti is entitled to the name because he has the majority of the family with him and also prevails over Letomia on the second issue.
The Court has already stated that it finds that both candidates stand on substantially the same basis as far as the issue of value to the Government of American Samoa is concerned.
Then to sum up, Sekoti prevails over Letomia on the first two issues, and stands on an equal footing with him on the fourth issue, and as a consequence it follows that Sekoti is entitled to the name whether Letomia has the better hereditary right or not.
The Court therefore, decides that Sekoti is entitled to the matai name Tupa’i. The Clerk of the High Court will advise the Attorney General to register Sekoti for the *581name. Costs of $25.00 are hereby assessed against Leto mia, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485012/ | DECISION
This action is brought by various members of the *582Asuega family by Siitupe for removal of Asuega as matai of the family. In substance the charges made by the complainants against Asuega are that:
1. He threatened to burn the fale of the sister of Asuega Tui, now deceased.
2. He said that it would be a good thing if all the children of Alualu were dead.
3. (The third charge was withdrawn at the trial and need not be stated here.)
4. His pride caused the family to have difficulties with the village of Pago Pago.
5. (The fifth charge was also withdrawn at the trial and need not be stated.)
6. He does not allow any member of his family to end his name with Asuega.
7. He told the members of his family they could quarrel and fight as long as they desired.
8. He made strong native beer and sold it in violation of the law.
9. He made the girls of his family engage in immoral practices with and before strangers, and brought the family into disrepute thereby.
10. He claimed all the family lands for himself and his immediate family.
11. He embezzled church funds to the extent of $179.20 in violation of Section 37 of the Codification. The eleventh charge was added at the trial by way of amendment but no evidence in support of it was permitted to be introduced-until Asuega had had sufficient time to prepare to meet the charge.
The Court spent two days in listening to the testimony. It has considered the testimony with great care. A transcript of the evidence was prepared and the writer has *583carefully read the entire transcript, and parts of it many times, before the preparation of this opinion.
The charges will be taken up seriatim. There was abundance of evidence presented at the trial \to prove the first charge which involved the threat by the defendant to burn the fale in which the sister of Asuega Tui was living. It is true that this charge was denied by the defendant, as were most of the other charges, but the Court is clearly of the opinion that the evidence as to it clearly preponderates in favor of the complainants.
The Court regards the second charge as definitely proved also. There is no doubt in our minds after listening to the testimony that the defendant did say to others in substance that it would be a good thing if all the children of Alualu were dead. It appeared at the trial that the children of Alualu were members of the Asuega family.
The third charge was withdrawn in open court and therefore will not be considered.
With regard to the fourth charge it is quite clear from the evidence that the defendant had the floor of his fale higher above the ground than was warranted by his rank. It also appeared .that at a feast in honor of a new Governor, Asuega forcibly pulled a girl out of a siva team because she was occupying a place on the team which he considered should be occupied by his daughter. This act occurred in the presence of a great number of people and in a public place. Whether his daughter should have occupied the position that was had by the girl which he pulled out of the team or not makes no difference. His display of pride under the circumstances could not help but reflect unfavorably upon the Asuega family. His conduct in the village of Pago Pago was such that he was ordered out of the village. He admitted this himself upon the witness stand.
*584The fifth charge was withdrawn and will not be considered.
The sixth charge relating to his not allowing any member of the family to end his name with the name Asuega was no doubt proved. In view of the meager evidence as to the practice in American Samoa of allowing a member of a matai family to use the matai name as his second name, the Court is unwilling to express an opinion as to whether the action of defendant in this connection was proper or improper. In reaching its conclusion, the Court will give no consideration to the sixth charge.
While there was contradictory evidence as to the truth of the seventh charge to the effect that the defendant told members of his family that they could quarrel and fight as long as they desired, the Court regards this charge definitely proved.
The eighth charge concerning the making and selling of beer in violation of law we think was proved by the testimony of the defendant himself. He admitted on the stand that he sold native beer. In another part of his testimony he said that it was his wife who made the beer, and he admitted on cross examination that she made it in his fale and he did not stop her. The Court is inclined to the view that his claim that his wife made the beer and not himself is just a subterfuge, and whether he made it himself or his wife made it in his fale with his knowledge and he did not stop her makes little difference. His conduct in either case did not become a matai. There was some circumstantial evidence and the direct testimony of one witness that defendant made the beer himself.
The ninth charge is the most serious of all. It involves defendant’s use of his position as a matai to induce and compel girls of the Asuega family to engage in indecent and immoral practices. It was clearly proved that he asked girls of his own family (and a request to them from a matai is *585practically an order) and a few girls from other families to dance naked before strange men, and that as a result an indecent dance was put on by the girls before strange men, one of the girls dancing naked and others almost so. It was stated by various witnesses that on numerous occasions he had either requested, or ordered, girls of his matai family and other girls to indulge in sexual intercourse with strange men. One girl testified that she had sexual intercourse in his fale at his orders with a strange man and also danced naked. This girl belongs to his family. Several girls testified that they were told by Asuega to have sexual intercourse with strangers and denied actually having done so. This denial was of course a most natural one.
The tenth charge we do not regard as proved. It is true that there was some difficulty between the defendant and various members of his family in connection with the land Faatufatome but the charge .that he claimed all the family land for himself and all of his immediate family was certainly not sustained by the testimony. It is true that the evidence showed that Falealili, the defendant’s cousin and another matai of the family, chased boys out of this particular piece of land but that is not proof that the defendant ordered it to be done even granting that it was improper, which we are not prepared to say. There was some testimony to the effect that Asuega ordered certain members of the family to keep out of this piece of land but it did not appear that they suffered any injury as the result of the order. In fact the evidence showed that they made plantations in the land anyway. The family has some other lands and it may be that the members who claimed that they were excluded from Faatufatome had plenty of the other lands assigned for their use.
The eleventh charge involves the claim that the defendant embezzled $179.20 of church funds. The evidence quite clearly showed that the amount of church funds *586which came into his hands was not $179.20 but $235.00 instead and that he promised to repay this amount and never did it. When asked to return the money by the proper authorities the evidence shows that he stated that he had no money but that he would pay it (the $235.00) back. The money was traced to him. He knew it was church funds. He did not repay it. It does not follow from this evidence that he necessarily embezzled the money but his promise to pay it back pretty clearly demonstrates that he regarded himself as obligated to pay it back and his failure to do so under the circumstances is conduct unbecoming a matai.
A matai should be the leader of his family. He should be able with his capacity for leadership to influence the family to live peacefully and happily together. It came out in the testimony that the Asuega family have been divided for more than ten years. He has been the matai since 1917. It is not surprising from the evidence that the family was divided. In view of the testimony it could hardly be otherwise. A matai’s character and conduct should be such as to warrant the respect of the members of his family and of the people in other families. If the matai is not respected in the community his value as a matai is greatly diminished.
In view of the fact that the court is unanimously of the opinion that the first, second, fourth, seventh, eighth, and ninth charges are all definitely proved and the further fact that the evidence shows that his conduct in connection with the church fund was improper we are of the opinion that the defendant should be and he is hereby removed as a matai. The Clerk of the High Court will certify such fact to the Attorney General who, pursuant to Section 79 of the Codification of the Regulations and Orders for the Government of American Samoa, will remove the name of the defendant from the matai record.
*587Court costs in the sum of $50.00 are hereby assessed against the defendant, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485014/ | DECISION
The land Niualuaga in Leone, bordered on the southwest by the sea and on the east in part by government land on which was built the naval dispensary in 1916, was surveyed and offered for registration by Tiololo. Ilaoa objected to the proposed registration, claiming that the survey included some of his land. In making his objection he did not claim all of the surveyed land as his nor did he at the trial. He admitted that the southern part of the surveyed tract belongs to Toilolo. The dispute arises in part over the ownership of that portion of the land north of what was *603the southern boundary of an old pandanus patch that stood on the surveyed tract for many years and up to the time of its removal in 1936. There are three coconut trees standing near the most westerly corner of the surveyed tract. Ilaoa claimed that part of the surveyed land bordering on the sea and lying in a northwesterly direction from said three trees and also that part bordering on the sea and extending in a southeasterly direction from the same trees. Just how far to the southeast of the trees he claimed is not clear from the evidence or his objection and, as will be apparent later, is not important.
The evidence showed that all of the land in the surveyed tract is matai land, and that none of it is owned by either Toilolo or Ilaoa as individuals. Whenever in this decision any part of the land is spoken of as the property of either Toilolo or Ilaoa, it is understood that the ownership rests in the one or the other as the matai of his family, and not as an individual.
That part of the land north of what was the southern boundary of the old pandanus patch may conveniently be divided into two parts, (1) the part on which the old pandanus patch was, and (2) the part north of the old pandanus patch.
We shall first consider the part of the land on which the pandanus grew. Both parties introduced evidence of use and occupation of it coupled with claims of ownership thereof. While there was a conflict in the testimony, we think the evidence clearly preponderates in favor of the view that the Toilolo family have used and occupied this part under a claim of ownership for a period antedating the raising of the U.S. flag in Tutuila 38 years ago. There is no need to cite authority for the proposition that if the Toilolo family acquired ownership according to Samoan custom by taking possession of the land and using it and claiming it as its own, prior to the American occupation, it still has the *604title unless it voluntarily parted with it, or lost it through the operation of the doctrine of adverse possession, or it was taken through condemnation proceedings. We make this statement although we think that as against the objector it is not necessary for Toilolo to show use and occupation with claim of title for more than twenty years.
Mixed in the soil in one part of the land where the old pandanus patch was is some coral constituting the remains of an old fale. Olo gave testimony to the effect that he was 68 years old and that when he “was old enough” he was adopted by the present Toilolo’s father and lived with him in that fale. The present Toilolo, the proponent, testified that he was 59 years of age and lived in the fale when he was 16. Olo testified that several old women of the Toilolo family had lived in the fale and that all were now dead except one. It further appeared from his testimony that the fale was occupied by members of the Toilolo family prior to the time the naval dispensary was built. Olo testified also that the pandanus patch was on the land when he was living in the fale and prior to the time the dispensary was put up. Other witnesses for Toilolo testified that the Toilolo family had cut leaves from the pandanus plants for many years prior to the time they were removed from the land in 1936. It is clear to us from the whole evidence that all of the pandanus patch was planted many years ago either by Fipi, an elderly woman and a member of the Toilolo family, or by Fipi and another Toilolo woman. Mativa of Fagatogo testified that she and Fipi without objection from anyone cut the 1936 crop of leaves from the entire patch and that Fipi sold them to Mativa. Various pulenuus in many different years ordered the Toilolo family to clean up the pandanus patch.
There was some testimony to the effect that a part of the pandanus patch was planted by a member of the Ilaoa family and that that family had cut some of the leaves; also *605that the old fale was occupied by members of the Ilaoa family. The planting of the pandanus undoubtedly occurred many years ago and if any leaves were cut by the Ilaoa family it was likewise many years ago. The f ale had been gone for more than 22 years with only the coral remaining as concrete evidence of its prior existence. Toilolo testified that it was taken down before the dispensary was built. Taking the testimony as a whole, we think the passage of time has so dimmed the memory of Ilaoa’s witnesses on these matters that they were mistaken.
We conclude that the land, where the pandanus stood, was used and occupied under a claim of ownership by the Toilolo family for more than twenty years prior to Toilolo’s offer to register the land Niualuga. It follows, therefore, that that part of the land is Toilolo’s.
We shall now consider that part of the surveyed land that lies north of where the pandanus patch was. From Toilolo’s testimony it appears that the ownership of this patch has been a matter of dispute between the Toilolo family and Ilaoa family for some years; that about five years ago Ilaoa’s family set out some bananas on this piece over the objection of Toilolo and that for about three years before the bananas were set out a cook house owned by Tuiloau, a member of the Ilaoa family, stood on it; that before the cook house was put up this piece was just bush. There are two coconut trees standing at the most northerly corner of this disputed piece which corner is also the most northerly corner of the surveyed tract. Toilolo testified that he did not plant these two coconut trees, did not know when they were planted, and that he never got any nuts from them. If he claimed the land up to these two coconut trees it is indeed peculiar that he never got any of the nuts therefrom. There was evidence that these two trees were planted by a member of the Ilaoa family and that the Ilaoa family used the nuts from them. Since the land was just bush prior *606to the time the cook house was put on it, it is obvious that Toilolo was not using it and occupying it. There was no evidence that he used it or occupied it during the three years the cook house stood on it. And there was no evidence that he used it or occupied it after the Ilaoa family put the bananas in it some five years ago. There was testimony to the effect that the Ilaoa family took breadfruit and grapefruit from trees on that piece as well as bananas. Toilolo may have claimed the land, but since he did not use it, or occupy it, to the accompaniment of his claim he did not under the law acquire title to it. This disputed piece is the property of Ilaoa, he having used and occupied it with claim of ownership and there being no other objector.
This leaves the part of the tract claimed by Ilaoa and lying northwesterly and southeasterly of the three coconut trees to be considered. Olo testified that he saw the Toilolo family using the nuts from these trees “a long time ago”; in fact so many years ago that he could not remember how many; that when he was pulenuu he had given the Toilolo family orders to clean up around the trees. Salavea testified that he had seen Toilolo’s children taking nuts from these trees “for more than twenty years” without objection from anyone. Fipi testified that she saw Toilolo Moimoi plant the three coconut trees. Although there is some conflict in the testimony relating to these three trees we think that they were planted by the Toilolo family and that the nuts grown on them have been taken by the Toilolo family for more than twenty years. Examination of the evidence as a whole convinces us that the part of the surveyed land to the northwest of the three coconuts as well as to the southeast of them was occupied, used and claimed by the Toilolo family as its own for more than twenty years prior to the offer to register the land Niualuga; and that during none of that time was this part used or occupied by Ilaoa’s family. It *607follows therefore that this part belongs to Toilolo, and not to Ilaoa.
It was in evidence that the pandanus patch extended to the north end of the eastern boundary of the land, marked on the survey as having a bearing of 327° 6' N.W. and a length of 37.31'. The north side of the pandanus patch ran west and slightly north from the north end of the boundary just referred to. Taking into consideration the location of the three coconut trees on the survey and the location of the old pandanus patch and other pertinent evidence, we think the northern boundary of the land Niualuga begins at the north end of the line marked 327° 6' N.W. 37.3T on the survey and runs in a northwesterly direction to the north end of the western boundary which is designated on the survey as having a bearing of 255°20' S.W. and a length of 58'. The Court has calculated mathematically the length and direction of this boundary and finds that beginning at the north end of the line with a bearing of 327°6' N.W. and a length of 37.31' it extends 79.96' with a bearing of 273° N.W., to the north end of the line, as shown on the survey, having a bearing of 255°20' S.W. and a length of 58'.
The Court therefore ORDERS, ADJUDGES AND DECREES that that part of the surveyed tract, as shown on the survey filed in this cause, lying north of the above mentioned boundary with a length of 79.96' and a bearing of 273° N.W. is the property of Ilaoa as the matai of the Ilaoa family; and that that part of the surveyed tract, as shown on the survey, lying south of said boundary with a length of 79.96' and a bearing of 273° N.W. is the property of Toilolo as the matai of the Toilolo family.
For the purpose of clarification, the Court has caused the new boundary with the bearing 273° N.W. and a length of 79.96' to be marked with a dotted line in red on the survey filed for registration; and the four sided tract lying north of said dotted red line to be designated in red ink on the *608said survey as matai land of Ilaoa, area .031 A.; and the eight sided tract lying south of said red dotted line to be designated on said survey as matai land of Toilolo, area .278 A. The Court calculated the areas of the two tracts.
Court costs are assessed against Ilaoa in the sum of $20.00 and against Toilolo in the sum of $15.00, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485015/ | DECISION
This is an Appeal which has come up to this Court from a Judgment rendered by the District Court, No. 1, and in a cause in which William McMoor was the Plaintiff and Joseph Jewett the Defendant, and from a refusal of the said Court to grant a new trial upon motion of the Defendant J. Jewett for grounds shown in his Motion for a new trial. The form in which this Appeal was made was somewhat irregular, but owing to the absence of the opportunity of the litigants to obtain legal, advice, the Court was indulgent, and waived any irregularity in the manner of forwarding this appeal to the High Court. The records forwarded show that the trial between the parties took place in a regular manner before their Honors Judges E. W. Gurr and Mauga Taufaasau, of District Court No. 1, and that the trial was prosecuted to the end before said Court; and, in conformity with the Court, under the existing arrangements for judicial procedure in the United States Naval Station, Tutuila, the evidence taken and recorded in the *613Samoan language. The records sent up by that Court appear to be in order, and a translation of the evidence taken therein has been made, and which is certified to as being correct. The Appeal, or the Petition for Appeal, was presented by the Appellant through said District Court, upon a recommendation made by the Commandant of the United States Naval Station, Tutuila, “that the petition with affidavits attached thereto, receive the consideration of the Court, and be dealt with according to ordinary procedure, or with such variation of the procedure as may appear fair and expedient by the Court to meet the ends of justice. The District Court, for the purpose of facilitating progress in the case, waived all irregularities by letter dated January 1902, and forwarded the petition of the Appellant as forwarded to that Court by the Commandant, with the recommendation or suggestion that if the High Court should deem the form of the petition vital that further orders be issued to that Court for amendment of the same; and also, for the purpose of saving expense to the parties, that instead of producing to this Court a transcription of the evidence and proceedings taken in the lower Court, the original documents which form the records of that Court be also forwarded. Owing to the present conditions of the judicial arrangements in these islands, this Court accepted the records as forwarded by the District Court, but considered that the method adopted by the Appellant to procure a new trial was irregular. His petition addressed to the Commandant of the Station, although it may have contained sufficient grounds for an Appeal, was considered to be irregular in form, and the Appellant was directed to amend such petition so as to conform with the procedure of this Court. The Appellant was, therefore, ordered to make an amended statement on Appeal. The statement on Appeal, in its amended form, embraces all the grounds set forth in the Motion for a new trial before the District *614Court, except the claim for a trial by jury, and further grounds not previously brought before the District Court were added thereto. The action was brought into District Court in a regular manner. The Plaintiff called his wife Pulemota, Tofe, Sina and himself as witnesses, and the Defendant failed to offer any evidence. The Court decided that the Defendant should pay to the Plaintiff the sum of Seventy-five Dollars ($75) as damages, and the costs of the cause up to that time, amounting to Twenty-five Dollars ($25). The Appellant applied for a new trial on the following grounds:—
“ (1) That the proceedings were irregular—
(a) There was no Interperter furnished, and I was not able to know exactly what the adverse party and witnesses stated, in order to make answer or cross question.
(b) There was no official stenographer furnished, and I feel satisfied that the native clerk was unable to take evidence as it was given by both parties.
(2) That the findings of the Court is erroneous and is not based upon or in conformity with the evidence for the reason that the evidence of the Plaintiff’s wife is not credible or to be relied upon. That the amount or damages awarded by the Court is unjustifiable and grossly inconsistent with the facts of the case, and is excessive for the reason—
(a) That the Plaintiff admits his wife was of a loose character and licentious behavior.
(b) That he has suffered no special damage and has not been deprived of his wife’s company.
And on further grounds—
(3) That owing to the sickness of Gaogao it was impossible for that witness to attend Court.
And owing to the absence of Faauu from Pago Pago the Defendant was not able to produce their evidence in his favor at the trial that such evidence is material to his defense.
(4) That new and material evidence has been discovered and came to the knowledge of the Defendant which he was not aware of at time of trial, namely: the evidence of F. Miller, G. Petersen, and Setoa.
*615(5) That Defendant not being versed in law, and being unable to obtain legal advice at the trial, did not call or offer evidence on his behalf, being convinced and of the opinion as the evidence for the plaintiff more especially with reference to Plaintiff’s admissions as to his wife’s character, that any evidence unsufficient to the Court in finding damages against Defendant but that Defendant on a new trial would call the evidence of Mr. Leonard and Talisua both which could have been called at the time of trial except for reason stated above.
(6) That verdict was secured by false testimony and mistake.”
In ground No. 1, sub-section “A”, the Court sustains the finding of the District Court; and, also, in sub-section “B”, the Court sustains the finding of the District Court.
The ground contained in section 2: Upon reviewing the evidence taken before the District Court, this Court is of the opinion that the Appellant did not in any way attempt to impeach the veracity of the testimony of the Plaintiff’s wife, although he had the opportunity to cross-examine her and did cross-examine the said witness, on certain points. It appears to this Court that the finding of the lower court is not erroneous, and is in conformity with the weight of evidence, and that the evidence taken before the Court justifies the judgment.
“Where the trial is before a Court, or referee, a new trial will not lie where there is sufficient competent evidence to justify the judgment... or if there is uncontradicted evidence sufficient to warrant the verdict of the jury.” (Holbrook v. Jackson, 7 Cush. 136, and Zeigler v. Wells, 28 Cal. 263 — See Estee, paragraph 4902, and again, in par. 4920 of the same authority (Estee) “In some extraordinary cases where the verdict of a jury is clearly against the weight of evidence a new trial will be awarded, but the Supreme Court will not interfere with the verdict of a jury on the ground that it is against the weight of evidence, except in extraordinary cases. To justify the Court in setting aside the verdict as against the weight of evi*616dence, the Court should be brought to the irresistible conclusion that the verdict was not the free, sound and unbiased exercise of judgment on the part of the jury, and that manifest injustice would result.” And further: “If the verdict is against the weight of evidence, but there is still some evidence to justify it, a new trial will not be granted on Appeal for insufficiency of evidence to sustain the verdict.”
As to sub-section “A”, namely, “that Plaintiff admitted that his wife was of a loose character and of licentious behavior,” the Court considers that the question of licentious behavior, as far as it is authorized to do so by the evidence produced before it during the trial, the Court below has given that matter sufficient consideration.
Judge Gurr, in his opinion on that point says:—
“The levity of the conduct of the wife when about to give her evidence, and at the time of taking the oath, induced me to consider that she is frivolous, and I have allowed that conduct in mitigation of damages tó a certain extent, and there would have been a greater mitigation of damages had any evidence been produced bearing on the inconstancy or general misconduct of the woman.”
But the Appellant relied on the ground that the Plaintiff admitted his wife was of a loose character and licentious behavior.
Presuming that the husband knew of the looseness of character on the part of his wife, the Court is of the opinion that that would not have been a complete answer to the action. “But the fact that the wife’s character for chastity was bad before the Plaintiff married her; that he lived with her after he knew of the criminal intimacy of the Defendant; that he had connived at her intimacy with other men, or that the Plaintiff had been false to his wife, only go in mitigation of damages.” “A new trial should not be granted unless the evidence strongly preponderates against the verdict” — (Estee, par. 4850).
*617And with reference to the amount of damages awarded by the Court being unjustifiable and grossly inconsistent with the facts of the case, it is laid down in Estee, par. 4909, that:—
“The mere fact that the damages are excessive is not a ground for a new trial; they must appear to have been given under the influence of passion or prejudice.” And again: in par. 4912 of the same authority it is stated that “The facts should be stated from which the Court can perceive whether the damages are excessive and whether on another trial there would be any probability of a verdict for a less amount, or that there is any defense to the claim.” And in par. 4914 it is further laid down “That the Court will not grant a new trial on the ground of excessiveness only when the verdict was in accord with the decision of the Court, or when the Defendant leaves the matter to general inference, or where the claim for damages rests entirely on the uncontroverted allegations of the complaint, judgment will not be disturbed.”
This Court considers the weight of evidence in favor of the judgment, and sustains the finding of the District Court in that respect. (See also California Code, Civil Procedure, Section 657, sub-section 5.)
And in the ground stated in sub-section “B” of section 2, it is considered by the Court to be insufficient upon which to grant a new trial. It is unnecessary in actions of this nature for personal injury for the Plaintiff to prove special damages. (Quote authority.)
In Greenleaf, par. 1270, Vol. 3 “In an action for seduction, mental suffering is a basis for recovery without special allegation.” In paragraph 267, Vol. 2, Greenleaf, it is stated “Injury to the person or to the reputation consist in the pain inflicted whether bodily or mental, and in the expenses and loss of property which they occasion, the jury, therefore, in the estimation of damages, are to consider not *618only the direct expenses incurred by the Plaintiff, but the loss of his time, his bodily suffering and, if the injury is wilful, his mental agony or sorrow. The injury to his reputation, the circumstances of indignity and contumely under which the wrong done, and consequent public disgrace of the Plaintiff, together with any other circumstances belonging to the wrongful act and tending to the Plaintiff’s discomfort.” And also, in the note following par. 267, it is stated: “In an action for seduction, injury to the Plaintiff’s feelings is an element in computing damages as being a material consequence to the principal injury, and need not be separately averred in the declaration.” The Court considers that in cases of criminal conversation that special damage need not be averred; that the damages assessed by the District Court are not excessive upon the showing made by the Plaintiff in that Court, and that it appears upon record that punitive or exemplary damages have been awarded by the District Court following the rule laid down in Johnson v. Disbrow, 47 Mich. 59, and referred to in par. 376 Vol. 1 of Sedgewick on damages that “exemplary damages have been allowed in actions for criminal conversation.” This Court sustains the finding of the District Court in the amount of damages assessed.
As to ground No. 3, the Court upholds the ruling of the District Court regarding the evidence of Gaogao, and applies the same rule to the evidence desired to be produced through Faauu.
The Appellant states in ground No. 4 “That nevr and material evidence has been discovered and came to the knowledge of the Defendant which he was not aware of at time of trial, namely, the evidence of F. Miller, G. Petersen and Setoa.”
The refusal of the lower Court to grant a new trial for this cause upon the affidavits then before that Court is upheld.
*619Upon the moving papers in this Court it appears that the evidence desired to be produced is, without doubt, in the cases of that of Miller and Petersen, cumulative and impeaching, whilst that of Setoa must be viewed with a great deal of caution.
Evidence “if merely cumulative, it is no ground for a new trial”. (Estee’s Pleadings 4887 and authorities there cited.)
“It must be shown that it is not to impeach an adverse witness. It must go to the merits of the case, and not be such as tends merely to discredit a witness.” (Estee 4888 and citations.)
And “The moving party must show by his own affidavit that the new evidence was not known to him at the time of the trial. Upon that question the affidavits of other persons are not sufficient (Estees Pleadings 4890) (Arnold v. Skaggs, 34 Cal. 684).
The affidavit of the Appellant here filed does not cover this ground sufficiently to justify the Court in giving it any force.
One fact intended to be proved by Setoa must have been within the personal knowledge of the Appellant at the time of the trial. He must have known if he were innocent of the alleged criminal connection that the wife’s testimony was false, and it was his duty at the time to controvert the evidence if not by tendering evidence, his own evidence, then by endeavoring to ascertain and call other witnesses.
The fact of mistaken opinion as alleged in ground No. 5 is no cause for new trial.
“Mere surprise at the result of a trial is no ground for a new trial. Nor that the party was mistaken as to the nature of his case. (Estee 4882 and cases cited.)
The sixth ground “That judgment was secured by false testimony and mistake” is a special plea, and was not put forward when the motion was made in the lower Court.
*620Some of the affidavits submitted are clearly intended to prove perjury on the part of the Plaintiff’s wife. As stated above, the Court is of the opinion that the Appellant should have controverted her testimony at the first trial by showing that it was false.
It has already been stated that the new evidence must not be impeaching.
But this is a Court of Equity as well as a Court of Law, and when it is made to appear before a Court of Equity that a judgment has been obtained by mistake, fraud or false testimony, it will interfere and cause the judgment to be vacated.
It is the opinion of the Court that the nature of the evidence outlined in the affidavits is insufficient by themselves [sic] to sustain this plea, and to induce the Court to order a new trial on that ground alone.
But although the court cannot allow a new trial on the grounds stated in the motion, it is desirous, owing to the alleged possibility of the judgment having been obtained by false testimony, to act indulgently towards the Appellant and to give him an opportunity of bringing forth any testimony that might result in a different judgment to that rendered in the lower Court, and the Court as a matter of favor alone, will grant a new trial to be taken in the High Court of Tutuila on terms. (Estee’s Pleadings Page 4851.)
“When a suit has been regularly prosecuted to judgment, and substantial justice has been done, the parties are not entitled to invoke the interposition of the Court for the purpose of having the cause re-tried and again determined at the expense of the public, and to the delay of other suitors although both of the litigants join in the application. (Estee’s Pleadings 4847.)
A new trial will be ordered and an order setting aside the judgment in the Court below will be made in the High Court upon the conditions:—
*6211. That the Appellant pay all costs incurred in the proceedings both in the lower court and this Court up to the filing of this order.
2. That an undertaking be entered into by the Appellant and sureties that he will pay all costs and damages which may be awarded against him on the new trial, not exceeding Two Hundred Dollars ($200.00). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485017/ | *624DECISION
There seems to the President of the High Court of Tutuila no reason why this case should ever have been tried in the Village Court of Pago Pago, and that the action of that Court is sustained by District Court, No. 1, is a matter of surprise.
The evidence shows that this is an action for goods furnished to a Samoan, contrary to the provisions of Regulation, No. 3, known as the Samoan Labor and Contract Regulation, 1901, which regulation expressly declared that “NO ACTION SHALL LIE FOR THE SUBSEQUENT RECOVERY OF ANY GOODS OR CASH SUPPLIED ON CREDIT TO ANY SAMOAN CONTRARY TO THE PROVISIONS OF THIS REGULATION.”
It would seem that the plain duty of both the village and the district courts was to dismiss the action at once.
But the suit was brought by the native wife of the real plaintiff, in order ,to make it appear that the debt was one between natives, and, therefore, within the jurisdiction of the village court.
This was plainly a fraud. The evidence shows that the debt was owing to one I. Railey, a foreigner, but the suit was instituted by his wife.
Regulation No. 5, 1900, declares the form of government of Tutuila, and, under the head of Village Courts, declares that:
“Village Magistrates shall have jurisdiction over:
(a) All civil matters between natives when the amount in dispute does not exceed the sum of ten dollars, but he shall have no jurisdiction in any matter concerning real property or rights affecting the same.”
The amount in dispute being less than ten dollars, Railey *625attempted to set up his wife as the Plaintiff, in order to evade the law.
But there were two legal impediments to such a course,—
First, — Railey could not transfer a cause of action which he himself never possessed.
Second, — In so far as Railey’s wife was interested in debts owing to Railey, who was, like him, unable to go into the village court, because she is a foreigner for such purposes, and the village magistrate has no jurisdiction in any matters concerning foreigners.
So far, the ease is clearly one that should have been dismissed, but the decision of the District Court No. 1, contains matter that it is necessary to notice, in order to remove certain false impressions, of the constitution of courts and of the power to modify laws, that seem to exist.
The decision of District Court, No. 1, which strikes this court as partaking more of the nature of an argument for the appellee than of the nature of a judicial decision, relies upon a conversation — not of record — between one of the district judges sitting on the case and a former acting commandant, partly, for authority to try this case in a village court.
It would be fatal to all judicial procedure and to all law here if the express law of the land were alterable in such manner, and, in the absence of any record of such authority, this contention cannot be accepted as law.
It is further held, in the opinion of the district court, that certain disregard of law, admitted ,to have been practiced in the office of the Secretary of Native Affairs, in alleged conformity with the before-mentioned conversation, is binding upon the High Court.
The Secretary of Native Affairs is not ex officio a member of the High Court. He has a certain executive *626authority to supervise the conduct of the magistrates and judges of the lower courts in regard to the manner of performing their duties, but that authority is purely ministerial, and not, in the opinion of this court, judicial. To allow any such authority would be to supplant the High Court and place in the hands of a subordinate executive official the entire control of the interpretation of the laws, which it is inconceivable that the organizer of this government could have intended for a moment.
That, in view of the manner of calling a session of the High Court, anyone can seriously advance the opinion that any action of the Secretary of Native Affairs, in his ministerial capacity, is binding upon the High Court, is beyond our understanding. Such a view practically destroys the High Court and the right of appeal thereto.
Stress is laid upon certain instructions given to magistrates. These instructions were given in the Samoan language, and do not appear in the English translation of instructions to magistrates furnished to the President of the High Court some time after his arrival in these islands in 1905. If they have been issued since his arrival, they have been issued without authority, and if before that time, they should have been reported.
It was learned while this appeal was pending, that instructions looking to trials in line with the decision appealed from had been given, and an order was immediately given by the Governor to revoke such instructions.
It may be possible that the Samoan Labor and Contract Regulation, 1901, may bear hard upon certain people. If this be true, appeal should be made to the law-making power. It is always dangerous to allow courts to legislate, and it seems to this court .that this is what has been attempted here.
Further, if one court may legislate, why not any court? What sort of law would there be.
*627The argument against the appellee that he waived his rights might stand, if it were merely a question of personal privilege, but this court holds that the subject-matter at issue was beyond the jurisdiction of the village court, and that therefore, waiver could not give jurisdiction.
In order that no misunderstandings may arise in the future, the remarks of the District Court upon the probable effect of the penal clause of the Samoan Labor and Contract Regulation, No. 3, 1901, are to be understood merely discussion by the way, and are not to be regarded as a judicial determination of .the question.
It is therefore ordered that the decision of the District Court, No. 1, upholding the judgment of the Village Court be reversed. In view of the absolute want of jurisdiction a new trial will not be granted; but upon consideration of the statement contained in the opinion of the District Court that such cases have been tried in the Village Courts, and have been passed by the Secretary of Native Affairs, it is possible that the appellee may have been misled as to this matter, and inasmuch as the money to pay the debt has been deposited in the Court, the case will be dismissed without costs. Whatever costs may have been collected from either party will be remitted and returned. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485018/ | DECISION
Undeniably, a breach of the peace occurred at Pago Pago, as charged in the complaint. The orders of District Governor Mauga Moimoi, as a peace officer, were deliberately disobeyed. The course of conduct adopted by the eight young men, who come before this court as appellants, tended to arouse a feeling of violent antagonism and resentment on the part of the people of the Village of Pago Pago, and this Court is satisfied that their riotous and *629intemperate behavior in their boats while returning from Pago Pago was primarily intended to accomplish this end.
This conclusion, however, is arrived at by this Court by disregarding in toto the various immaterial and impertinent allusions in the testimony of witnesses for the prosecution, attributing to District Governor Mauga certain powers and prerogatives of which he is not possessed.
The disorderly conduct of the young men, who appear as appellants in this court, was a clear violation of the laws of the United States Naval Station, and this misconduct is greatly enhanced and aggravated because it was committed in express disobedience of the orders of a peace officer.
It has been testified that Mauga Moimoi is the “Tupu” of the Bay of Pago Pago. A reference to Pratt’s Grammar and Dictionary of the Samoan language discloses that a “Tupu” is a “king” — a “monarch” — a “sovereign”. It implies a far higher authority than a “Faipule” or a “Matua” or a “Tulafale Ali’i” — and this Court is informed that before the establishment of foreign governments in these islands, the word “Tupu” or its synonym “Tui” represented the highest sovereign power, without limitation or condition.
It may be that this term was applied to District Governor Mauga by the enthusiastic witnesses for the prosecution merely as a meaningless compliment to one who once held or claimed such an honor before the establishment of the Government, but inasmuch as it has been reiterated in the record of this case, and no comment or correction has been made regarding it by the Court below, it devolves upon this Court to correct any false impression that may have arisen from the decision of the District Court. Whatever authority District Governor *630Mauga may have asserted in the Island of Tutuila before the . Cession of this island to the United States of America has been relinquished, and since that Cession, Mauga has derived his authority solely by virtue of his office as a District Governor. He is appointed by and holds office at the pleasure of the Governor of Tutuila. Of course, he may not overstep that authority by attempting to assert officially any of the prerogatives ascribed to him by the complaining witness, Teo, i.e., prohibiting the wearing of headgear in his presence, etc. Teo, the Village Chief of Pago Pago, by such reckless and intemperate testimony, displays a woeful ignorance of the system of government of this Colony, and the Court elucidates its reasons for sustaining this decision for his benefit and information, as well as for the guidance of the people of this Colony.
Let it be understood that any orders of the District Governor, which are within the scope of his authority as a peace officer, shall be obeyed in the Bay of Pago Pago or in any other place in the Eastern District.
The decision of the District Court cannot be passed over without comment. The testimony of various witnesses [that] Mauga is the Monarch of this Bay; that he may arbitrarily prohibit certain lawful acts, and otherwise assume quasi-sovereign privileges, has been entered of record, and the court below failed to exclude such testimony, and no mention has been made of the impertinence and immateriality of this testimony in the written decision of the Court below. This Court is constrained to express an opinion that in the absence of this necessary comment on the part of the Court below to this .testimony, a doubt arises as to whether the Court below was not influenced in deciding the case upon this evidence. The testimony should have been excluded summarily by the order of the District Court, and a minute to .that effect entered upon the record. Perhaps, it would have been the part of wisdom also, to refer to this *631improper testimony in the decision of the District Court to point out clearly to the parties in the case that any testimony that Mauga was the “Tupu” of this Bay had no bearing whatsoever upon the decision of the District Court.
The judgment of the District Court is sustained without costs. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485019/ | DECISION
The attached document is accepted as an appeal from the decision of the High Court in the above case by Sagaina.
The grounds for appeal are stated as follows:—
1. That the Maugas do not know where the name Mauga got the original right to the land Fatumafuti, whereas the plaintiffs have shown that they procured claim to the said land by purchase from Savea, the consideration being two (2) fine mats and two (2) bolts of cloth.
2. That the appellant, Sagaina, is a brother of Mauga Taufaasau and that if Mauga Taufaasau should die, and he, the appellant, thereupon succeed to the name Mauga, *632the acceptance of the sum awarded to him by the Court would destroy his interest in the property.
3. The appellant further states; “Had this land been decided entirely to Mauga Moimoi, excluding from it Sagaina and all his descendants, it would be well to us both; to divide the land in two would be in accordance with our wishes.”
4. The appellant further states that Mailo’s mother and the descendants of Sagaina are buried on the land and could only be removed by an expenditure of Two Hundred Dollars and thirty fine mats.
The contention that the appellant’s (Sagaina’s) ancestors obtained the land by purchase is based upon a tradition not supported by evidence and discredited by the present Savea who testifies that he never heard of such transaction, and it is further discredited by the production in Court of a fraudulent letter by counsel for appellants with the intention of strengthening their contention.
Paragraphs 2, 3 and 4, dealing only with the effect of the High Court’s decision upon the appellants’ interest, need not here be considered.
The decree issued in the above-entitled cause is hereby affirmed, and the appeal dismissed.
Costs upon appeal are assessed against the defendants, Sagaina and Tufaina, in the sum of Fifteen Dollars ($15.00). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485057/ | *168ORDER
On the 11th day of September 1944, Luapo of Leone filed an application with the Attorney General to register the matai name “Atiga”. Notice of his application was published on the same day on the bulletin board at the Administration Building and remained posted for a period of 30 days. On the 7th day of October 1944, Sipunu of Leone filed his objection to the registration to this matai name by Luapo of Leone, and at the same time claimed that he was entitled to hold the matai name “Atiga”.
The case was called before the High Court of American Samoa, January 22, 1945. Both parties requested that they be allowed to have another meeting and conference of the family members to see whether or not an agreement could be reached as to who should hold this title. The case was continued until Monday, January 29, 1945, in order to give the family an opportunity to hold another meeting in an effort to decide who should hold the matai name “Atiga”. When the case was called again for trial on January 29, 1945, Sipunu of Leone stated in open court that as a result of the family conference during the past week he desired to withdraw his objection and to consent to the appointment of Luapo of Leone to hold the matai name “Atiga”. The matter having been agreed upon by the family and the parties to the contest, now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Luapo of Leone is the true and lawful successor and holder of the matai name “Atiga” and that he be allowed forthwith to register this name.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that court cost in this case be taxed in the sum of $25.00 and that the cost be paid in equal parts by Luapo of Leone and Sipunu of Leone.
*169IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be forthwith delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485584/ | *178Petitioners move for partial summary judgment against the assessment of certain deficiency determinations made by the respondent, American Samoa Government, involving income tax years 1980, 1981 and 1982 upon the ground that the asserted tax deficiencies were barred by the three year statute of limitation provided in the United States Internal Revenue Code, 26 U.S.C. § 6501(a), as adopted by the Territory in A.S.C.A. § 11.0401, with amendments A.S.C.A. §§ 11.0501 et. seq.
At the hearing of petitioners’ motion, respondents in their memorandum supplied and filed the day before raised the "fraud" exception, provided in the enactment, whereby a tax may be assessed at any time. No showing of any sort was offered by respondent as to fraud.
Under 26 U.S.C. § 7454 it is provided that the burden of proof in any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax shall be upon the respondent. The courts have held that the standard of requisite proof is "clear and convincing evidence". Kreps v. Commissioner, 351 F.2d 1 (2d Cir. 1965); Carter v. Campbell, 264 F.2d 930 (5th Cir. 1959).
Upon further briefing directed by the Court, respondent abandoned its fraud contention and further advised the Court that'it was not opposing summary judgment in favor of petitioners, for the year 1981. In lieu of the fraud exception to the general three-year statute of limitation, respondent invokes the six-year limitation exception provided in the Code, 26 U.S.C. § 6501(e)(1)(A). Essentially this enactment provides that in the case of a tax payer omitting from gross income an amount properly' includible therein in excess of 25 percent of the amount of gross income stated in the return, the corresponding taxes may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at anytime within six years after the return was filed.
It has been held that this provision is not a penalty statute, but merely provides a longer period in which a deficiency assessment may be made whenever there is an omission of more than 25 percent of gross income stated in the return. Greiger’s Estate v. Commissioner, 352 F.2d 221 (8th Cir. 1965) cert. denied 382 U.S. 1012 (1966).
*179For purposes of this enactment, subparagraph (A) thereof provides that the term "gross income" means the total of the amounts received or accrued from the sale of goods or services (if such amounts are required to be shown on the return) prior to diminution by the cost of such sales or services; and in determining the amount omitted from gross income, there shall not be.taken into account any amount which is omitted from gross income stated in the return if such amount is disclosed in the return, or in a statement attached thereto, in a manner adequate to apprise the government of the nature and amount of such item.
Prior to Congressional supply of this definitional or clarifying subparagraph, the Supreme Court harmoniously interpreted the language "omit from gross income any amount includible therein" as embracing only the .omission from a return of an item received by or accruing to the taxpayer, and did not include an understatement of gross income arising from an error in reporting an item disclosed on the face of the return. Colony Inc. v. Commissioner of Internal Revenue, 357 U.S. 28 (1958). In other words, the enactment applied only in those instances concerning data nonexistent on the return; where the return on its face provides no clue to the existence of the omitted items, the Commissioner is at a special' disadvantage in detecting errors. On the other hand, there is no disadvantage when the understatement of a tax arises from an error in reporting an item disclosed on the face of the return.
Given, therefore, legislative intendment as to the proper ambit of 26 U.S.C. § 6501(e)(1), we are of the opinion that the reliance by respondent herein on the six-year limitation provision is misplaced for the reason following. By way of explaining the various deficiency notices for years 1980, 1981, and 1982, respondents have documented as follows:
Due to your failure to submit this office with records requested to substantiate your profit and loss statement, we therefore have no alternative but used all informations as reported on the original returns filed with this office. (Emphasis added).
On these factual assertions by respondents provided as exhibits to the petition and admitted in the answer filed herein, we conclude that the *180omissions excepted to by respondents pertained to errors disclosed on the face of the return. As a matter of law the six-year limitation provision is inapplicable, and accordingly the general three-year limitation statute governs.
The motion for summary partial judgment is granted and it is so Ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485020/ | DECISION
This is an appeal from the decision of the High Court by the defendant in the case of Puailoa and Fanene versus Magalei.
The appeal presents:—
1. An expression of dissatisfaction with the decision of the High Court.
2. An expression of dissatisfaction with the evidence given by the people of Faleniu.
3. An effort to discredit the testimony of Siufanua by the statement “Siufanua was put in jail for speaking falsely and dodgingbefore the Court.”
4. An ex parte statement of the appellant’s own case.
After a careful review of the case the President of the
High Court finds:—
1. That the appellant offers no new matter for consideration.
2. That the appellant offers no evidence tending to discredit the testimony of the people of Faleniu, of Alia, or of Siufanua.
3. The statement that Siufanua was put in jail for *634“speaking falsely and dodging before the Court” is not borne out by the Court record, — it appears that Siufanua was committed for refusing to answer a question; the natural inference is that he was unwilling to make a true statement, but would not make a false statement. He subsequently answered the question and the truthfulness of his reply was not questioned by the appellant.
4. The petition for appeal presents merely an ex parte statement of the appellant’s own case.
It is the opinion of the President of the High Court that the case was properly tried and that the decree of the Court was in accordance with the law and the facts adduced.
The appeal is denied. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485021/ | DECISION ON APPEAL
An appeal has been filed from the decree of the High Court in the case of Fuimaono, et al. v. Leasiolagi, et al., awarding the title of the lands in dispute to the plaintiffs.
Although no grounds for appeal were stated, other than “matou le malie” the proceedings and voluminous testimony in this case have been given the fullest measure of consideration, and the President of the High Court has *635endeavored to view the case from all angles, and to determine whether the evidence produced justified the findings of fact and law by the trial court.
Defendants’ claim is based primarily upon shadowy and uncertain tradition, supported by evidence as to efforts of Leasiolagi to secure possession of the land during the present generation. These efforts were evidently abandoned before the year 1900, and at the time of the establishment of this Government, Fuimaono and his family were peaceably occupying the land. In view of his continuous resistance of the claims of Leasiolagi, it is futile to ask the Court to believe that he was merely a tenant at the pleasure of Leasiolagi. It must be presumed, instead, that Fuimaono’s resistance was successful.
Plaintiffs’ claim, on the other hand, begins with the usual traditional title, but is strengthened beyond all possibility of doubt by their continued possession and cultivation up to and beyond the time of the establishment of this Government, and their persistent and warlike defiance of the traditional claims of defendants.
No impartial tribunal would render a different decision. The case has been properly tried and both sides have been granted every reasonable indulgence.
The appeal is denied and the decree AFFIRMED. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485024/ | DECISION
A new trial is granted in this case, it being believed that the evidence as to the age of the girl Pulea is not conclusive, particularly as the defendant now avers that the testimony of Alesio and Pulea was false, and that through ignorance and lack of experience he failed to produce witnesses or to cross-examine the witnesses of plaintiff. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485026/ | DECISION
The defendant was charged with permitting his pig to run at large and damage a plantation. He was tried before District Judge Muli on December 16, 1937. After hearing the case the Court recommended that the defendant be fined $15.00, payable in 30 days, or be sent to Jail for one and a half months on nonpayment of the fine. The Chief Justice remanded the case to the District Court for retrial. It was again heard by Judge Muli on January 20, 1938 with the result that the District Judge recommended that the defendant pay a fine of $10.00 within 20 days or be sent to Jail for one and a half months. A fine of $5.00 *664payable within 20 days or 15 days in Jail was the judgment finally approved.
The defendant then appealed to the High Court and argued his appeal in person. An examination of the record shows that in substance his appeal is based on the claim that the finding of the District Court that the defendant was guilty was contrary to .the evidence.
The real argument hinges around the ownership of the pig which was admittedly running at large and damaging the plantation. The defendant claimed at the trials that it was not his but belonged to another person. It appears from the evidence, and the defendant admitted in his statement to the High Court, that after the pig was killed and roasted he claimed it as his own. The record shows that at the first trial the defendant also admitted that the pig was his own and that he took, it home after it was killed and roasted. The complaining witness testified that after the pig was roasted and before it was consumed he described the pig to the defendant and the defendant insisted on taking the roasted pig, claiming it to be his. The defendant claimed that he was mistaken in the ownership of the pig and that it was really the property of Siale (C. Reid). Some evidence was introduced to that effect thereby producing a conflict.
The District Court apparently believed the evidence that pointed to the defendant’s guilt and disbelieved the evidence pointing to his non-guilt. It was the duty of the Court to weigh the evidence and reach a conclusion. There was an abundance of evidence from which the Court could very properly reach the conclusion that the defendant was guilty, especially since he had made admissions to the effect that the pig was his.
“Ordinarily it is not the province of the appellate court to determine the credibility of conflicting evidence. The presumption is in favor of the verdict, and the appellate court will not interfere when *665the evidence is conflicting, if there is material evidence tending to support the verdict, although it may differ from the jury as to the preponderance of the evidence.” 17 Corpus Juris, pp. 264 and 267, citing many cases.
In American Samoa the Court itself passes upon the evidence instead of a jury, but the legal principle just quoted is applicable nevertheless.
The High Court has considered this case with care and can see no reason, since there was plenty of evidence from which the District Judge could very well conclude that the defendant was guilty, for interfering with its finding of guilt.
The judgment that the defendant pay a fine of $5.00 within 20 days or be sent to Jail for 15 days is hereby affirmed. High Court costs in the amount of $10.00 are hereby assessed against the defendant, the same to be paid within 40 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485027/ | ORDER FOR REDUCTION IN ALIMONY
BE IT REMEMBERED that Pasa and Faiisiota, the parties to the above entitled action both appeared in Court on February 7, 1947 at 9 :S0 A.M. and it appearing to the court, after a hearing in which both said parties participated, that the pay of Faiisiota, the respondent, has been reduced from 46 cents an hour to 24 cents an hour, therefore IT IS ORDERED that the monthly payment of $20.00 provided for in the original decree be reduced to $10.00 as of January 1, 1947.- It is recited herein that Pasa, the petitioner, in view of the change of circumstances was agreeable to the reduction. Faiisiota should get a receipt from Pasa each time he makes a payment to her.
s/ Arthur A. Morrow
ARTHUR A. MORROW
Chief Justice | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485028/ | ORDER
Now on this 14th day of November, this action comes regularly on for hearing. Petitioners appeared in person and respondent has entered its general appearance herein and waived any further notice with respect to the trial of this action.
From the pleadings and the evidence heard, the court finds that all the material allegations of the petition are true and that petitioners are entitled to the relief prayed for.
It is, therefore, ORDERED, ADJUDGED AND DECREED that petitioners Faalo Patea, Lutelu Patea and Titipa Patea, the surviving children, all of whom have reached his or her majority are the sole heirs of Leaualofa Patea, deceased, and are entitled to inherit and have and recover of and from respondent the sum of $391.24 on deposit with the respondent in a savings account number 1045 in equal shares.
It is, further ORDERED, ADJUDGED AND DECREED that the Bank of American Samoa be and is *5hereby authorized and directed to pay each of said petitioners one-third of said sum together with any interest which may have accrued thereon; and upon the payment of said money by respondent to petitioners, respondent shall be released from any and all further liability in this connection with said money and savings account. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485029/ | DECISION
The land Laolao lying near the village of Pago Pago was surveyed and offered for registration by Poi, pursuant to Section 74 of the Codification. Talo objected to the registration of the land as Poi’s claiming that it was his *10property; hence this litigation. At the hearing Poi stated that his claim to the land was as matai of the Poi family, and not as an individual. Talo likewise stated that he claimed as matai of the Talo family and not as an individual.
From the evidence, which we have examined with great care, it is clear to us that the land Laolao was in the possession of and being used by the Poi family at the time of the establishment of the Government in 1900. There was convincing testimony that the copra on the land was being cut by Poi Peniata, the immediate predecessor, of the present Poi, when the American flag was hoisted in Tutuila. There was no evidence to show that at that time there was an outstanding title in any other family or person, or that the land was claimed by anyone else. We must conclude, therefore, that in 1900 this land was, according to Samoan customs, the property of the Poi family. Having acquired title to the land by Samoan custom, it is still the property of thé Poi family unless the Pois have parted with its ownership voluntarily, lost it through the operation of the doctrine of adverse possession, or it has been taken through condemnation proceedings. Ilaoa v. Toilolo, No. 5-1937. The acquisition of Tutuila by the, United States did not affect private land titles. There was no evidence that the Poi family has parted with its ownership voluntarily, or that the land was condemned. Therefore, the possibility of loss of title through either of the methods set out in the preceding sentence may be put to one side. This leaves the question' of the loss of title by the Poi family to the Talo family through operation of the doctrine of adverse possession to be considered.
It is elementary that an act of the. English parliament in force at the time of the American Revolution and *11applicable to the new conditions and surroundings in the States became a part of the law of most of the States of the United States, either by express adoption or judicial construction. See 12 Corpus Juris 184-186. Referring to the common law the editors of Black’s Law Dictionary (3rd Ed.) at page 368 say: “. . . As concerns its force and authority in the United States, the phrase designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here (meaning the United States) at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States (citing various cases).”
Section 3(1) of the Codification of the Regulations and Orders for the Government of American Samoa provides that “. . . so much of the common law of England as is applicable and not repugnant .to or inconsistent with the Constitution and laws of the United States of America, and the laws of American Samoa, is declared to be in full force within American Samoa.”
It requires no argument to reach the conclusion that the Statute of 21 James I, Chap. 16, passed by the English parliament in 1623 and, with certain exceptions, limiting actions for the recovery of real property to a period within twenty years after the accrual of the right of action, is applicable and suitable to conditions in American Samoa in the absence of a provision in the Codification prescribing a period within which actions to recover real property may be brought after the accrual of the right to sue. Nor are the provisions of that statute “repugnant to or inconsistent with the Constitution and laws of the United States of America.” If that statute is not in force here, then there is no limitation upon the time within which an action may be brought for the recovery of real *12property, and conceivably such an action might be maintained after a hundred years after the accrual of the right of action. Such a situation should not be tolerated, and in view of the provisions of Sec. 3(1) of the Codification we do not believe that it was the intent of the legislative authority that it should be.
We think that the phrase English common law as used in Sec. 3(1) should be interpreted to include such acts of the English parliament as were in force at the time of the American Revolution and are suitable to conditions in American Samoa. It is our opinion that the Statute of 21 James I, Chap. 16, is a part of the law of American Samoa.
It is generally held that the operation of such a statute is to transfer the title to the land to the wrongful possessor. Tiffany on Real Property, 997-8; Baker v. Oakwood, 123 N.Y. 16; Hughes v. Graves, 39 Vt. 359; Harpending v. Reformed Protestant Dutch Church of New York City, 16 Peters (U.S.) 455; Schock v. Falls City, 31 Nebr. 599; Jacks v. Chaffin, 34 Ark. 534; McDuffee v. Sinnott; 119 Ill. 449; Way v. Hooten, 156 Penn. St. 8; Mitchell v. Campbell, 19 Oreg. 198.
To acquire title by adverse possession, the possession must have been continuous and uninterrupted for the statutory period. “The adverse possession must continue without interruption for the statutory period, and, if an interruption occurs and possession is thereafter resumed, the limitation period commences to run only after the time of such resumption.” Tiffany on Real Property, 999, citing Steeple v. Downing, 60 Ind. 478; Ross v. Goodwin, 88 Ala. 390; Armstrong v. Risteau’s Lessee, 5 Md. 256; Old South Society v. Wainwright, 156 Mass. 115; Bliss v. Johnson, 94 N.Y. 235.
What does the evidence show as to the possession of the land Laolao by the Talo family? It is admitted that the present Talo built a small fale on the land about 1935 and *13that he buried one of his children on it in 1936; that he, or the members of his family under his mataiship, planted bananas, taro and pineapples on the land for some two or three years (some witnesses put it at five years) prior to the institution of the action in the latter part of 1937. There was some evidence, which we do not regard as entitled to much weight, that Talo Taluega was in possession of the land for a period of between one and a half and two and a half years some fifteen or twenty years prior to 1937. He stated on the stand that he had been living in Sailele for “about fifteen years” prior to the hearing of the case. There was also some evidence that he had possession for a few months in 1915. Talo Taluega testified that other Talos had used the lands at other times. However, the record of the testimony shows that upon further examination he admitted that he was basing his statement on hearsay, that he had no personal knowledge of the truth of his statement and that he was just repeating what he had heard. This hearsay testimony cannot be considered.
Falealili testified that he was 47 years of age and had lived in Pago Pago all his life and had been familiar with the land ever since he was old enough to “know things.” He stated that the Talo family had cut the copra from the land all the time that he had been familiar with it. On further questioning he admitted that he had seen Talo Siolo cutting copra on the land on two occasions only, and no one else; that he had not seen anyone cutting copra on it for twenty-eight years. And he finally admitted that he did not know “very much about (the) copra cutting.” The testimony of the other witnesses for Talo as to the use and occupation of the land by the Talo family was equally unsatisfactory to prove adverse possession of it for twenty years.
As a whole the evidence clearly preponderates in favor *14of the view that the Poi family through use and occupation of the land was, under Samoan customs, its owner when the Government was established in 1900; that it used and occupied the land continuously and without interruption at least until 1932, and probably until 1935. In one of these two last mentioned years Talo took the possession from Poi and has held it since. Poi objected verbally, but without physical interference.
Let it be assumed for the sake of argument that the Talo family had the use and possession of the land for a few months in 1915 and again for two and a half years some fifteen or twenty years prior to 1937 and again from 1932 on (and this is putting the case for Talo much more favorably than the evidence as a whole warrants) nevertheless the Talo family did not acquire title to the land by adverse possession. Title to land, as heretofore stated in this opinion, cannot be acquired by adverse possession unless such possession be continuous and uninterrupted for the statutory period which in the case of American Samoa is twenty years. Upon the assumption stated the Talo family had possession for about nine years only and not twenty years, and in addition the possession was broken up into three parts and consequently was not uninterrupted as the law requires.
It follows, therefore, from the principles of law herein stated and their application to the evidence adduced at the hearing that the land Laolao is the property of the Poi family and not the Talo family.
It is accordingly ORDERED, ADJUDGED AND DECREED that the land Laolao, as shown on the survey filed for registration by Poi, be registered as the property of Poi in his capacity as the matai of the Poi family. Court costs in the sum of $25.00 are hereby assessed against Talo, the same to be paid within sixty days.
All the Judges concur. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485039/ | MORROW, Chief Justice
Savea Valu made application to the Attorney General to have his name recorded as the holder of the matai name Mulitauaopele. Lavatai Tulei filed an objection to the proposed registration and became a candidate for the name himself. Hence this litigation. Sec. 79(4) of the Codification.
*78Formerly the law was to the effect that the High Court, in a matai name case, should award the title to the candidate with the best hereditary right. This law was changed in 1937 to read:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority of the family.
2. The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Sec. 79 (4A) of the Codification of the Regulations and Orders for the Government of American Samoa.
Under the law as it now stands the Court should first determine which of the candidates the majority of the family wish to have the name. In this case each of the candidates filed a petition signed by various members of the Mulitauaopele family asking that he be awarded the name. 258 members of the family signed the petition for Savea Valu and 212 signed the petition for Lavatai Tulei. It is obvious that the signer of such a petition should be old enough to have an intelligent wish as to who he desires to be his matai. This Court has not found it necessary to determine what age a child ought to have attained in order to have an intelligent wish in regard to this matter. However, it is quite obvious that a child under ten years of age could not very well have the education and experience and mental development necessary to have such a wish. The Court has examined both petitions and finds that on Savea’s petition no signer has given his age as under ten. On Lavatai’s petition 31 of the signers give their ages as ranging from two to nine years respectively. At the hearing counsel for *79Lavatai after examining the petition for Savea stated that he objected to 34 of the signers for Savea as being too young. He objected to three others on various other grounds, making the total number objected to 37. If we deduct the 37 names from Savea’s petition we have left 221 not objected to. If we count every one of the signatures for Lavatai, including the signatures of the 31 giving their ages as from two to nine years, Savea still has a majority of the family supporting him.
If the contention of counsel for Lavatai that 34 signers on Savea’s petition, all of whom are ten years of age or over, were too young to be considered has any validity it would follow as a matter of course that the 31 signers on Lavatai’s petition ranging from two to nine years of age could not be considered either.
It is apparent from the testimony and from the record that Savea prevails upon the issue of the wish of the majority of the family. Under the law the wish of the majority of the family is to be given more weight in determining who shall have the name than any of the other three matters to be considered.
We think that Savea prevails on the issue of “forcefulness, character, personality, and leadership.” It is true that he was in some difficulty many years ago when quite a young man. However, we do not believe, in view of the fact that at that time American Samoa had been under the authority of the United States only a few years, that he should be judged by the standards of Western civilization. Rather we should look at the matter in the light of conditions as they existed in this part of the South Seas at the time. In view of his apparent good conduct during the many years since the difficulty occurred, we think his character does not stand in the way of his becoming the matai. His capacity for leadership of the family is superior to that of Lavatai. Savea has a fale in Laulii to which village *80the matai name Mulitauaopele is attached. He spends about half his time in that village. Lavatai rarely goes to Laulii and then only on short visits. The evidence leads us to believe that Savea is much better acquainted with the members of the family, their affairs, and their needs than Lavatai. Consequently he is better prepared to undertake the leadership of the family than Lavatai. The testimony showed that Savea cut about six times as much copra last year as Lavatai. We believe that he is more industrious than Lavatai and will as the matai set a better example for industry among the family members. His personality is as good as Lavatai’s. Savea has never been brought into court for non-payment of his taxes. The testimony showed that just recently Lavatai was. Sec. 98(8) of the Codification reads in part as follows:
“Every taxpayer shall be listed for taxation in the village in which the matai of his family resides and each matai shall be personally responsible for the payment of the taxes of every member of said matai’s family residing on said family lands.”
It is apparent that a matai who does not pay his taxes on time and has to be brought into Court is not setting the right example for the other taxpayers in his family. He is not likely to carry out his duties under the law just quoted.
We shall next consider the matter of hereditary right. It appears .to the court from the testimony that Savea is the true son of Savea Tata who was a former holder of the name Mulitauaopele. While there was some conflict in the testimony as to whether Savea Tata ever held the name we think the weight of the evidence is distinctly in favor of our conclusion on this point. The .testimony also shows to our satisfaction that Pele Fia and Pele Tinoifili were related to Savea. Pele Fia was his cousin; just what Savea’s relationship to Pele Tinoifili was does not appear from the testimony. That Lavatai was the son of a former holder of the name is clear from the .testimony. His father was Pele *81Lavatai Seinoa. Lavatai stated that he was related to some other Peles hut did not know how. On the whole of the testimony it is apparent that Savea has as good a right to the name as Lavatai in-so-far as the matter of hereditary right is to he considered.
The next and final matter for consideration is the “value of the holder of the Matai name to the Government of American Samoa.” Copra and Samoan curios are exported. They bring money into American Samoa. When money from the outside world comes to American Samoa it improves economic conditions here and is indirectly helpful to the Government. Lavatai’s testimony reveals that he cut $12.00 worth of copra last year. Savea’s testimony shows that during the same time he cut $70.00 worth. Lavatai makes no Samoan curios for export. Savea does. Savea pays his taxes on time and it has not been necessary to bring him into court to collect them. This cannot be said for Lavatai. Savea’s example as a taxpayer is much better for the members of the family to follow than Lavatai’s. On the record of the testimony, it is apparent that Savea will be more valuable to the Government as the matai of the Mulitauaopele family than Lavatai.
In view of our findings that Savea Valu prevails over Lavatai on the 1st, 2nd and 4th issues, and is at least on an equal footing with him on the 3rd issue of best hereditary right, it follows that he is entitled to the name.
The Attorney General will be advised to record Savea Valu as the holder of the matai name Mulitauaopele.
Costs of $25.00 are hereby assessed against Lavatai, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485040/ | DECISION
MORROW, Chief Justice
The record shows that Laisene filed his application on June 2, 1939 to be registered as the matai of the Lagafuaina family, and that Sueuga filed an objection thereto on June 20, 1939, becoming a candidate for the name himself.
At the outset the court wishes to point out that in reaching a decision in a case such as this the court ascertains the facts from the evidence and then applies the law thereto. The court does not make the law nor is it free to make any decision which it wishes. It must decide the case according to .the law and the evidence. If the law were otherwise the rights, titles and property of the Samoan people would be endangered.
Formerly the law was to the effect that the High Court in a matai name case should award the matai name to the candidate with the best hereditary right. In 1937 the Fono recommended that the law be changed and pursuant to the recommendation the Governor enacted Par. 4A of Sec. 79 of the Codification of the Regulations and Orders for the Government of American Samoa, which paragraph reads as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority of the family.
2. The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
*844. The value of the holder of the Matai name to the Government of American Samoa.”
The law obviously means that the wish of the majority of the family shall be given more weight by the court in awarding a matai name than any other of the matters to be considered by it; likewise that the “forcefulness, character, personality and leadership of the candidate” shall be given more weight than the matter of hereditary right or the value of the holder of the matai name to the Government of American Samoa; likewise that the matter of hereditary right shall receive more consideration than the matter of the value of the holder of the matai name to the government. An examination of the decisions of .this court applying the foregoing Par. 4A will demonstrate that the foregoing interpretation of the statute has been uniformly followed.
We shall now determine which of the candidates the majority of the family wish to be the matai. Each of the candidates filed with the Clerk of the Court a petition signed by various members of the family asking that he be made the matai. These petitions were introduced in evidence as evidence of the wishes of the family. The petition for Laisene had 117 signatures on it. That for Sueuga had 69. Counsel for Sueuga objected to 38 of the signers on Laisene’s petition claiming that these 38 signers were not members of the Lagafuaina family and also that they were too young to sign such a petition. We assume that the objection on the ground of age was based upon the theory that these 38 were too young to have an intelligent wish as to who should be the matai of the family.
There was conflicting evidence as to whether the 38 were members of the Lagafuaina family. It was claimed for Sueuga that they were members of the Taumua family and for .that reason could not be members of the Lagafuaina family. It does not follow, granting that they were mem*85bers of the Taumua family, that they could not also be members of the Lagafuaina family. Samoan custom permits a person to be a member of two different families at the same time. That the claim has no foundation whatsoever is shown conclusively by the testimony of Sueuga himself. He testified that he was a member of the Mauga family being the son of Mauga Manuma; also that he was a member of the Teo family with whom he has lived all of his life. He also testified that he was a member of the Lagafuaina family. Some of the 38 objected to were nieces and nephews of Laisene. The evidence showed that Laisene’s grandfather was a Lagafuaina. Therefore one fourth of his blood is Lagafuaina blood. His nieces and nephews consequently have one eighth Lagafuaina blood. Sueuga testified that his great-great-grandfather was Lagafuaina Vaitofiga. His testimony on this point was not disputed. He has one sixteenth Lagafuaina blood in his veins; it would certainly follow that Laisene’s nieces and nephews with one eighth Lagafuaina blood in their veins would also be members. If Sueuga is a member of the Mauga, Teo and Lagafuaina families at the same time, as his testimony showed him to be, there is no reason why Laisene’s nieces and. nephews cannot belong to the Taumua and Lagafuaina families at the same time. The nieces and nephews of Laisene have twice as much Lagafuaina blood as Sueuga. If he is a member of the Lagafuaina family, they certainly are too. If they are not members of the family, then Sueuga is not and he is seeking a matai title without being a member of the family. But we think both Sueuga and Laisene’s nieces and nephews are members of the Lagafuaina family according to Samoan custom.
Some of the 38 signers objected to were too young and should not be counted. However, it is not necessary for us to determine which of the 38 should not be counted on ac*86count of their extreme youth and consequent inability to have an intelligent wish as to who should be the matai of their family. If we exclude from consideration every one of the 38 objected to (and it is obvious that all of them should not be excluded) Laisene still has 79 members wishing him to be the matai. Sueuga has only 69. Consequently, Laisene having a majority of the family with him prevails upon the first issue.
We shall now consider the matter of forcefulness, character, personality and leadership of the respective candidates. There was nothing in the evidence tending to show that the character of either of the candidates was otherwise than good. As far as personality and forcefulness are concerned, we believe the candidates to be substantially on a par. However, the evidence shows that Laisene has lived all of his life in Nuuuli with the exception of a few months which he spent in Honolulu. Sueuga has lived all of his life in the village of Pago Pago, making only an occasional visit to Nuuuli. Laisene has lived in .the Lagafuaina family for a portion of his life. Sueuga has always lived in the Teo family. The name Lagafuaina is attached to the village of Nuuuli. The majority of the members of the family live in that village and surrounding territory. The family lands are in or near that village. Laisene having lived in Nuuuli all of his life except for a few months and for a portion of his life in the Lagafuaina family is very much better acquainted with the needs of the various members of the Lagafuaina family and with the family lands on which he has worked than is Sueuga who has never lived in Nuuuli, but has spent all of his 58 years in Pago Pago. Laisene is a member of the Fita Fita Guard. Sueuga is a retired Fita Fita.
We believe that Laisene particularly in view of his obviously greater familiarity with the needs of the family and the family lands is better prepared to undertake the *87leadership of the Lagafuaina family than Sueuga. Consequently Laisene prevails over Sueuga upon the second issue.
The undisputed evidence showed that Sueuga is the great-great-grandson of Lagafuaina Vaitofiga and'that Laisene is the grandson of Lagafuaina Sene, the nephew of Lagafuaina Vita, and the first cousin of Lagafuaina Vaa. In view of the foregoing Laisene has one fourth Lagafuaina blood in his veins. Sueuga has one sixteenth or only one fourth as much as Laisene. Each of the candidates traced his descent from a Lagafuaina through the daughter of a Lagafuaina. Inasmuch as Laisene has four times as much Lagafuaina blood as Sueuga it is obvious that he has the better hereditary right to the name and prevails upon the third issue.
On the issue of the value of the holder of the name to the Government of American Samoa we think the principal matter to be considered is the ability of each of the respective candidates to look after the family affairs. Laisene is 39 years old. Sueuga is 58. Laisene is in .the prime of life. Sueuga has passed his zenith. Laisene having lived in Nuuuli all his life with the exception of a few months is much more familiar with the family needs and family problems than is Sueuga who has spent his 58 years in Pago Pago. We think in view of the foregoing that Laisene is the better qualified for leadership of the family and for that reason he will be more valuable to the Government as the matai of the Lagafuaina family than would Sueuga. It follows that Laisene prevails upon the fourth issue.
To sum up, the majority of the family wish Laisene to be the matai; his capacity for leadership, which the second part of the statute requires us to consider, is superior to that of Sueuga; Laisene has four times as much Lagafuaina blood in his veins as Sueuga and consequently the better hereditary right to the name; he will be more valuable *88to the Government as the Lagafuaina than will Sueuga because his greater familiarity with the needs of the family and its lands gives him the superior qualifications for the direction of the family affairs.
Our conclusion, therefore, is that under the law and the evidence Laisene is entitled to the matai name Lagafuaina. The Attorney General will be advised to record Laisene as the Lagafuaina.
Costs in the sum of $25.00 are hereby assessed against Sueuga, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485041/ | To the High Court:
We, the undersigned, Faleafine, Feafeaga and Letuli of Iliili, parties to the High Court case No. 7-1935 involving the ownership of the land Lepulele, hereby request the High Court to withdraw this case from the calendar as it has been amicably settled among ourselves.
Witness:
/s/ S. Muli
/s/ Taliutaf a
/s/Faleafine
/s/ Feafeaga
/s/ Letuli
Copy to: The Pulenuu of Ili’ili | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485044/ | DECISION
MORROW, Chief Justice.
This case involves the right to the matai name Pulu of Pago Pago. The record shows that Soloi filed an applica*99tion to be registered as the Pulu on October 23, 1939 and that an objection to such proposed registration was filed in behalf of Taufaasau on November 20, 1939, the latter becoming a candidate for the name.
Formerly the law was to the effect that the High Court in the decision of a case involving the right to a matai name should award the name to the candidate with the better hereditary right.
The law was changed in 1937 pursuant to a resolution of the Fono for that year. The present law, embodied in Sec. 79 (4A) of the Codification of the Regulations and Orders for the Government of American Samoa, reads as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority of the family.
2. The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the matai name to the Government of American Samoa.”
There was filed in behalf of each candidate a petition purporting to be signed by various members of the Pulu family supporting his candidacy. These petitions were received in evidence on the issue of the wish of the majority of the family. There were 115 names on the petition favoring Soloi while there were 132 on the petition for Taufaasau. Taufaasau made no objection to any of the names on Soloi’s petition. On the last page of the petition for Taufaasau there were 18 purported signatures. Taufaasau himself admitted in his testimony that the said last page was, as he said, “not genuine” and added he “did not know where it came from.” Mr. Griffith, Ass’t. Cashier of the *100Bank of American Samoa, after qualifying as an expert witness on handwriting testified that in his opinion the eighteen purported signatures on the said last page as well as the first six purported signatures of the next to the last page of Taufaasau’s petition were all written by the same hand. Mr. Griffith also testified that in his opinion eight other signatures on the next to the last page were written by one hand. The entire court is convinced that Mr. Griffith’s testimony is correct. It follows that thirty-two signatures on Taufaasau’s petition cannot be counted. Excluding said thirty-two signatures it is apparent that a majority of the Pulu family wish Soloi to be the Pulu. Soloi, therefore, prevails over Taufaasau with respect to the first issue.
On the issue of “forcefulness, character, personality and leadership of the candidate” it appeared that Soloi is 59 years of age while Taufaasau is 27; that Soloi and Taufaasau each have plantations; that Soloi manufactures curios from which he has a monthly income of approximately $20.00 while Taufaasau is in the Fita Fita guard as an apprentice seaman with a salary of $23.00 per month; that Soloi occasionally sells a pig through which his income is increased. Soloi has served former Pulus. According to his own testimony Taufaasau has not, his service to matais having been limited to the Mauga and Sagaiga. The testimony was to the effect that Soloi attended school for ten years while Taufaasau reached the seventh grade.
Taufaasau has been in the Fita Fita guard for over eight years and attained the rating of a Seaman 2nd class. He was recently court-martialed for missing his ship in Apia and disrated to an apprentice seaman. It appeared that both candidates have kept their taxes paid and that neither has been convicted of a public offence in the civil courts. Soloi has had charge of the Pulu family lands since *101the former holder of the name passed away. Each candidate has entertained guests.
In view of all of the testimony bearing on the “forcefulness, character, personality and leadership” of the respective candidates, we are of the opinion that Soloi prevails over Taufaasau on that issue. Soloi has lived many more years than has Taufaasau, and is a much more experienced man.
On the issue of “best hereditary right” it was undisputed that the father of Soloi was Pulu Tuivaiulu and that Pulu Sail! was his grandfather. There were many other Pulus in his ancestry. Taufaasau is the grandson of a Pulu and the great great grandson of another Pulu. Soloi has one half Pulu blood in his veins while Taufaasau has one-fourth. It is apparent that Soloi prevails over Taufaasau on the issue of best hereditary right.
On the issue of the “value of the holder of the matai name to the Government of American Samoa” we think that Soloi also prevails over Taufaasau because we believe in view of all of the evidence that he is better qualified by character, personality, experience and capacity for leadership to manage the affairs of the Pulu family. The better a matai handles family affairs the more valuable he is to the Government. As before stated, it appears from the evidence that a majority of the family desire Soloi to be the matai. That very fact is evidence of the esteem in which he is held by the family and should make it easier for him to unify it and manage its affairs than for one who has only a minority of the family with him.
The undisputed evidence showed that Soloi meets the eligibility requirements of Sec. 81 of the Codification for the holding of a matai title.
The Attorney General will be advised to register Soloi as the Pulu. Costs in the sum of $25.00 are assessed against Taufaasau, the same to be paid in 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485046/ | DECISION
MORROW, Chief Justice.
The record shows that on February 23, 1940 Sitau filed an application with the Attorney General to be registered as the holder of the matai name Ofoia of Vaitogi. Aano filed an objection to such proposed registration on March 4, 1940 and became a candidate for the name himself. Hence this litigation.
At the outset it should be stated .that the court in reaching its decision is bound by the law. The court does not make law. It takes the law as it finds it, ascertains the facts from the evidence and applies the law to the facts, thereby reaching its decision. If the judges were to follow their *109personal likes and dislikes in deciding cases instead of reaching their decisions by the application of the law to the ascertained facts, the titles, lands and liberties of the Samoan people would be endangered.
Formerly the law was to the effect that the court in awarding a matai name should award it to the candidate with the best hereditary right. The 1937 Fono recommended a change in the law. Its recommendation was enacted into law by the Governor. The law governing the decision in this type of case is now found in Sec. 70 (4A) of the Codification and reads as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority of the family.
2. The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each of the candidates in accordance with the customary procedure in this type of case filed with the Court a petition signed by those members of the family favoring his candidacy. These petitions were in evidence. There were 122 signers on the petition for Aano of whom 21 were 8 years of age or less. There were 115 signers on Sitau’s petition of whom 12 were 8 years of age or less.
We have intimated in a number of matai name cases that a child of such tender years as to be incapable of having an intelligent wish as to who should be its matai could not be considered in ascertaining the wish of the majority of the family. See Lauvai v. Siitwpe, No. 9-1938; Sueuga v. Laisene, No. 5-1939. We do not decide what age a child must have reached in order to have an intelligent wish as to who *110should be the family matai. However, we think that a child 8 years of age, or under, is too young to have such a wish, and that his name to a petition of the kind under consideration should not be counted. Upon that basis 103 members of the family prefer Sitau and 101 prefer Aano. Each candidate objected to certain of the names on the other’s petition. We think, however, that the names on both petitions were unobjectionable except insofar as they were those of children too young to have an intelligent wish as to who should be the matai.
From the foregoing it appears that a majority of the Ofoia family wish Sitau to be its matai and that he prevails over Aano on the first issue.
On the issue of forcefulness, character, personality, and leadership we think that Sitau prevails over Aano. Both of the candidates are splendid young men of good character and personality. The court was well impressed by both Sitau and Aano. However, we think that under the circumstances as disclosed in the evidence Sitau will be able to assume leadership of the family and look after its affairs better than Aano. Sitau has lived in Vaitogi all of his life. The name is attached to the village of Vaitogi. Aano has lived in Nuuuli for the last eight or more years while he has been a member of the Fita Fita Guard. Nuuuli is much closer to the Naval Station than Vaitogi and it has been possible for him to visit his wife and children in Nuuuli much of tener than would have been the case had he had his immediate family in Vaitogi. His headquarters during his membership in the Guard has predominantly been the Naval Station. Of necessity he has gotten out of intimate touch with the affairs of the Ofoia family at Vaitogi. He is not as familiar with family needs as is Sitau, nor does he know the members of the family as well. He couldn’t because he has been away from the Ofoia family for years, only going back to Vaitogi occasionally to visit. *111A matai who lives with his family is better able, other things being equal, to look after family affairs than one who has another job to fill and who can spend only a small part of his time with his family. A man cannot serve two masters and serve them both well.
If Aano who has to spend most of his time at the Naval Station should be given the name, he would not be able to spend the amount of time in Vaitogi that a matai of that village should spend with his family in order to look after the affairs of his family properly. Furthermore the President of the United States has declared that a national emergency exists now. It might be that the war situation will develop in such a way that Aano could not leave the Station to visit Vaitogi for a month or more at a time. Sitau is very industrious. He has splendid plantations. He cuts a large amount of copra and makes curios for sale in addition. His education is equal to that of Aano.
We are convinced in the light of all of the evidence that he will be better able to look after the affairs of the Ofoia family and to provide the leadership that the family needs than would Aano. Sitau prevails over Aano on the second issue.
Sitau is the true son of Ofoia Soli and the grandson of Afoia Amosa. He has one half Ofoia blood in his veins. Aano is the great grandson of Ofoia Leena. He has one eighth Ofoia blood in his veins. Sitau has the better hereditary right to the name than does Aano and prevails over Aano on .the third issue.
The candidate who will look after the affairs of the Ofoia family — and it is a large family — the best will be the most valuable to the Government of American Samoa. It is very important that the plantations of a Samoan family be well looked after and cared for. There are times when there are food shortages in all, or parts, of American Samoa. A hurricane may de*112stroy a large part of the available food crop. The family with the best plantations will be best able to survive such a catastrophe and will be a less burden on the Government. Certainly Sitau who has some of the best kept plantations in the Vaitogi area and who lives in the village and is industrious is better qualified to see that the Ofoia family plantations are well kept than is Aano who is not primarily an agriculturist at all and who can only spend a small part of his time in Vaitogi. The Government is interested in the Ofoia family living in peace and happiness and amicably with its neighbors. Other things being equal a man who has lived with the family all of his life and who will continue to live with it is obviously better prepared to take care of the family affairs than is a man who has lived away from the family for eight or more years, whose interests are primarily in his job and not his family, and who can only visit his family a small portion of his time. It is obvious that Sitau will be more valuable as a matai to the Government of American Samoa than Aano would be. Sitau prevails over Aano on the fourth issue.
Pursuant to the Statute (Sec. 79 (4A) of the Codification above quoted), Sitau will be registered as the Ofoia of Vaitogi.
Costs in the sum of $25.00 are hereby assessed against Aano, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485047/ | DECISION
MORROW, Chief Justice.
Asoau had the land Malae in Faleasao surveyed and thereafter, pursuant to Sec. 74 of the Codification, made application to the Registrar of Titles to have the land as surveyed registered as his property. He filed .the survey with the Registrar. Siva filed an objection to the proposed registration, claiming that the land was his. Hence this litigation. See Sec. 74(3) of the Codification.
. At the hearing it appeared that Siva and Asoau each claimed ownership of the land in his capacity as a matai, and not as an individual.
It is clear from the evidence that for many, many years prior to the establishment of the Government in the Manua Group in 1904 and continuing up to the present time the land has been continuously occupied and used by the members of the Asoau family under a claim of ownership, save in a few instances where they have permitted others after the establishment of the Government in Manua to occupy and use parts of it, always retaining the general ownership nevertheless. The land, being occupied and used by that family at the time of the establishment of the Government in Manua was Asoau property at that time under Samoan custom. Salavea L. of Leone v. Ilaoa of Leone, No. 2-1938.
“And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes everyone else but the owner from the use of it.” II Blaekstone’s Commentaries 8. It is significant that *115Blackstone’s statement on the manner of acquisition of the original title to land is in substantial accord with Samoan custom.
The cession of the Manua Group to the United States in 1904 did not affect private land titles. Salavea L. of Leone v. Ilaoa of Leone, supra; Talo v. Poi, No. 16-1937. Therefore, unless the Asoau family has parted with its title since 1904, the land Malae is still its property. While there was evidence that various Asoaus had permitted use of parts of the land by others, it does not appear that they parted or intended to part with the ownership of such parts. It follows, therefore, that the land Malae is family land belonging to the Asoau title.
We think that Siva’s own testimony shows conclusively that the land is Asoau property and not Siva’s. In response to an inquiry of Siva as to whether he had rendered service to an Asoau, he testified “Yes for Asoau Filifaatali.” This circumstantially shows that he is a member of the Asoau family. He also testified that he was a candidate for the Asoau title when the present Asoau received it and that he was “the true heir of Asoau Vaipuata.” His testimony reveals the fact that he belongs to one branch of the Asoau family. He admitted that various Asoaus are buried on the land and that there are Asoau houses and plantations on the land, and said that he (Siva) “descended from Asoau Taiga.” In response to the question: “Has that land (Malae) been in .the possession of Asoau ever since the Government was established?” Siva answered “Yes.”
It also appears from his own testimony that he made no claims to the ownership of the land until his candidacy for the Asoau title in 1926 was unsuccessful, and the present holder received the name from the family. Siva testified that he was 59 years old, had been familiar with the land since 1900, and had lived in Faleasao from 1907 to *1161928. For him to see land occupied and used daily from 1907 to 1926 by others claiming it as their own without objection or assertion of ownership in himself during all that time is a strong circumstance indicating that such land was not his. One does not ordinarily stand by in silence for 19 years while watching someone else occupy and use his property for that period. Such conduct is not according to human nature. If it was Siva’s land why didn’t he make some claim to it during those 19 years? We can come to no other conclusion from his own testimony than that land was not Siva’s and he knew it. Not only does his testimony fail to show that it was his, but on the other hand it shows that it belongs to the Asoau.
While it is not necessary to a proper decision of this case, it may very properly be stated that if in 1904, when the Government was established in Manua, there was any defect in the Asoau title to the land, that defect has long since been removed through the operation of the Statute of Limitations. That Statute (21 James I, Chap. 16) passed by the English Parliament in 1623 is a part of the law of American Samoa by force of Sec. 3(1) of the Codification of the Regulations and Orders for the Government of American Samoa. Talo v. Poi, No. 16-1937.
The evidence shows that the possession of the Asoaus has been of such character beginning with the establishment of the Government in Manua and continuing to the present time as to wipe out any claim by another and to perfect the title in themselves, if there was any defect in their .title.
The Registrar of Titles will be advised to register the land “Malae” in Faleasao as the property of the Asoau in his capacity as the matai of the Asoau family.
Court costs in the sum of $25.00 are hereby assessed against Siva, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485048/ | *119DECISION
MORROW, Chief Justice.
Since Fatu withdrew his objection and his candidacy during the course of the hearing, his rights, if any, to the matai name Ilaoa of Leone will not be considered.
Formerly the law was to the effect that the High Court in a matai name case should award the name to the candidate with the best hereditary right. This law was changed in 1937 upon the recommendation of the Fono to read as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority of the family.
2. The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Sec. 79 (4A) of the Codification of the Regulations and Orders for the Government of American Samoa.
In this case each of the candidates filed a petition with the Clerk of the High Court signed by those members of the Ilaoa family favoring his candidacy. The petitions were received in evidence on the issue of the wishes of the family as to who should be its matai. There were 233 signatures on the petition of Ieliko (Eric Ripley), who throughout this decision will be referred to as Eric; 24 signatures on Fatu’s petition and 64 on Tuinei’s. There were 148 signatures on Aumavae’s petition. In view of Fatu’s withdrawal of his candidacy in favor of Aumavae we shall consider for the purpose of our decision (it can make no difference in the result) that the 24 signers for Fatu attached their signatures to Aumavae’s petition although it was not made *120clear to the court that such was the intention of Fatu and those members of the family backing his candidacy. We need not consider whether such backing may be transferred from one candidate to another during the course of the hearing since it is immaterial in this particular case, Eric having more members of the family backing him than has Aumavae, whether or not, the 24 backers of Fatu are counted for Aumavae. Five names on Aumavae’s petition were questioned. Whether they were properly on the petition will not be considered since a consideration of the matter cannot affect the result, Eric having more names on his petition than Aumavae with or without the five questioned names.
In view of the fact that Eric has 233 signatures on his petition and Aumavae has only 172 (and this figure includes the 24 on Fatu’s and does not exclude the 5 signatures on Aumavae’s which were questioned) while there are but 64 signatures on Tuinei’s petition, it follows that Eric prevails over both Aumavae and Tuinei on the matter of the wishes of the family as to who shall be its matai.
We shall next consider the “forcefulness, character, personality and leadership” of the candidates as the law requires us to do.
The records of the District Court No. 2 reveal the fact that Tuinei was convicted of the crime of adultery in March of this year and that he was duly sentenced upon such conviction. The testimony in the present case shows that in response to the question “Have you ever been convicted in court of a public offence?” Tuinei, while on the witness-stand, answered “No.” The evidence indicates that Tuinei is quarrelsome, gambles and his conduct is indicative of general unfitness to have the matai name Ilaoa. A man whose character is such that he will commit adultery, quarrel and gamble cannot command the respect of his family and the community at large which respect the *121holder of a high name should have. Consequently his capacity for leadership will be limited. The name Ilaoa is attached to the village of Leone. It is significant that not a single member of the family residing in Leone signed Tuinei’s petition although the evidence shows that more than 150 members of the family live there. Those members will be most affected by this decision. Tuinei testified that he has not lived in Leone since 1906 and that he visited Leone “very, very seldom.” It is obvious that he is unfamiliar with family affairs, and other things being equal,, is not in as good a position to assume leadership of the large Ilaoa family as a candidate who is familiar with family affairs.
Aumavae has been the pulenuu of Leone on a number of occasions. He has never been convicted of a public offence and neither has Eric. Both Aumavae and Eric live in Leone and are familiar with the affairs of the Ilaoa family. Eric is a leading carpenter at the Naval Station and earns $21.12 per week which amounts to more than $1,000.00 per year. He also cuts copra and makes Samoan curios, thereby supplementing his income as a carpenter in the Public Works Department by about $200.00 a year. In addition he does odd jobs as a carpenter adding still more to his income. Tuinei receives $60.10 per month as a retired Fita. He also sells plantation products as well as fish, mats and Samoan curios. However, his total annual income is less than that of Eric. Aumavae does not cut copra himself, due no doubt to the fact that his health is not very good. He does have some income from copra cut by members of his family as well as some additional income from the manufacture of Samoan curios. The evidence shows his income to be less than that of either Eric or Tuinei. We reach the conclusion from the evidence that Eric is in a better position financially than either Aumavae or Tuinei to assist the family in times of difficulty or disaster.
*122Both Tuinei and Aumavae have been matais for many years. Eric is not already a matai. Tuinei is 54 years old, Aumavae 50 and Eric 34. Aumavae is not well. Eric is in good health. It is obvious that Aumavae has passed the prime of life. Eric is, or soon will be, in the prime of life. Since Tuinei is a convicted adulterer and has other unfortunate traits of character and not quite one member in seven of the family wants him as the matai it is apparent to every member of the court that both Eric and Aumavae surpass him with respect to “forcefulness, character, personality and leadership.” As between Eric and Aumavae we think in the light of all the testimony that Eric surpasses Aumavae with respect to these same matters. A 59 year old man who is not in good health is no.t in as good a position, other things being equal, to undertake the leadership of a large family as a man in good health who is 34 years of age. Eric is an industrious, skilled artisan and has a larger income with which to assist the family than has Aumavae. Eric speaks English well which is a decided asset should he desire to deal with the Government in behalf of the family. Our conclusion is that Eric prevails over both Aumavae and Tuinei on the issue of “forcefulness, character, personality, and leadership.”
Eric is the grandson through his mother of Ilaoa Tuiloua. Consequently he has one quarter Ilaoa blood in his veins. Aumavae is the great-grandson of Ilaoa Aumavae. He has one eighth Ilaoa blood in his veins. Tuinei is the grandson of Ilaoa Taatofa. He has one fourth Ilaoa blood in his veins. There was no evidence that it had been customary in the family for the male and female descendants to be equal. Consequently Tuinei prevails over Eric and Aumavae on the issue of the hereditary right.
We shall now consider the last issue, viz., that of the “value of the holder of the matai name to the Government of American Samoa.” Obviously the candidate who is best *123qualified to undertake the mataiship will be the most valuable to the Government of American Samoa. The fact that Eric has more members of the family who want him to be the matai than either of the other two candidates indicates that he will be better able to lead the family than either of them; that he has already assumed a position of influence and leadership in the family; that he will be better able to consolidate the family into a unit and wipe out family dissensions occasioned by the selection of a new matai. Most of the lesser matais in the family favor Eric. This will be of assistance to him whereas by the same token it would be to the disadvantage of either of the other candidates in an attempt to consolidate the family into a peaceful, happy organization.
The labor of Eric together with his copra and Samoan curios bring on the average more than $100.00 of money from the outside world into the islands every month. Aumavae does not cut copra himself. He does not have a job at the station. Some curios made by him bring money into the islands but the amount is very small in comparison with what Eric brings in. Tuinei’s pay as a retired Fita together with money from his sales of curios, mats, and food does not amount to as much as Eric’s income from the outside world. The more money brought into the islands from the outside world the better for the Government for, as the money is disseminated among aigas under Samoan custom, the more people there are who can pay their taxes. Eric, being a skilled carpenter, can teach and being a leading carpenter at the Naval Station does teach carpentering to other Samoans. The more skilled artisans there are among the Samoan people, the better it is for the Samoans and for the Government. Neither Tuinei nor Aumavae has any trade which they can teach to others. Since Eric speaks English the Government can deal with the family better through him than through a matai who does *124not speak English. In view of what we have said, it is clear to all members of the court that Eric as the holder of the name'will be the most .valuable of the three candidates to the Government.
It was claimed by the opposing candidates that Eric did no.t live as a Samoan because he wore European trousers while at work as a carpenter. At the hearing both candidates Tuinei and Aumavae were wearing European shirts, European coats, European belts, European neckties and lava lavas made from European cloth. The courtroom was filled with Samoans, both men and women, and the evidence showed, and the court could see for itself, that every one of them was wearing some European clothes, some more than others. Eric testified that he wore European trousers while at work and a lava lava when he went home in the evening to Leone. It is common knowledge that practically all, if not all, Samoans working for the Public Works Department wear European trousers while at work because they are a more convenient wearing apparel for an artisan than a lava lava. And this is particularly true in the case of a carpenter who needs pockets in which to put small tools, nails, a rule, etc., while at work.
We do not think the evidence disclosed that Eric did not live with Samoans as a Samoan because he wore trousers while at work. No doubt while attending functions as a matai he will wear the clothing usually worn by matais. We hold that he is qualified to hold a matai title so far as Sec. 81 of the Codification is concerned.
The court is unanimously of the opinion that Eric prevails over both the other candidates on the issue of the wish of the family as to who shall be its matai, the issue as to “forcefulness, character, personality, and leadership” and the issue as to the “value of the holder of the matai name to the Government of American Samoa.” On the single issue of hereditary right Tuinei prevails over Eric be*125cause he is the grandson of an Ilaoa through his father while Eric is the grandson of an Ilaoa through his mother.
Since Eric prevails over both Aumavae and Tuinei on the first, second and fourth issues it follows that he is entitled under the law to be registered as the Ilaoa of Leone and the Registrar of Matai Titles will be advised to register him as such.
Costs here hereby assessed as follows: To Fatu $8.34; to Tuinei $20.83; to Aumavae $20.83. All costs are to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485049/ | DECISION
MORROW, Chief Justice.
Three-fourths of the adult members of the Fano family brought this action by Fano, their matai, to have Faatiliga Tapuvae of Fagaalu removed as a matai. The action was brought under Sec. 79, Par. 7, of the Codification of the Regulations and Orders for the Government of American Samoa which reads as follows:
“Whenever three-fourths of all adult persons in a family desire the removal of the matai and they so state their desires to the Attorney General in writing, setting forth their reasons, a notice to that effect, containing all signatures shall be posted for thirty days in the usual manner. A copy of such notice will be furnished to the matai who will be given a hearing on the subject before the High Court of American Samoa. If within a reasonable time no hearing has been requested by the matai, or if on hearing no sufficient reason has been shown to the Court why the matai should not be removed from office, such fact will be certified by the Court to the Attorney General and the Attorney General will remove the name of the matai from the records and the family shall be without a matai until another is selected in the usual manner.”
From the evidence the court has concluded that the Fano family and the Faatiliga family are two entirely different organizations and that Faatiliga, the defendant, is not a lesser matai in the Fano family. From this conclusion it follows that .the action is improperly brought.
*127Sec. 79, Par. 7, of the Codification requires that the persons seeking the removal of a matai be members of the family of that matai. The very wording of the statute permits no other interpretation. The statute does not mean that the three-fourths of the adult persons in one family may maintain an action to remove the matai of another family. It does not read “Whenever three-fourths of all adult persons in one family desire the removal of the matai of another family and they so state, etc.” The matai referred .to in the statute is the matai of the family, three-fourths of all the adult members of which seek the matai’s removal. This action must fail because of lack of authority by three-fourths of the adult membership in the Fano family to maintain it. The wording of the petition seeking the removal of Faatiliga begins “We, the undersigned are three-fourths of the Fano family of Fagaalu. . . .”
In view of what we have already said it is not necessary to a decision of the case to discuss .the merits of the complaints against Faatiliga. Nevertheless, we shall do so. The statute obviously requires that the reasons for the removal of a matai must be substantial and not inconsequential or trifling.
It appeared from the evidence that a pig belonging to Faatiliga’s mother had been killed, presumably by some member of the Fano family, and that Faatiliga went to Fano’s house in a state of anger and complained about it and said that the pig should be replaced by another pig. There could be nothing wrong with such a statement. The statement of an obviously angry man is not to be taken seriously anyway. It is true that Fano’s wife, Fiasili, testified that what Faatiliga said was that a pig should be replaced by a human being. We think she was mistaken in this and that the statement was that as heretofore stated.
It was then sought to be proved that Faatiliga had pulled up the bananas on Lisi’s plantation. The evidence by the *128Fano family’s own witnesses proved not only that Faatiliga did not pull up the bananas but that it was his brother instead. It was sought to show by Fiasili that the brother did it at the command of Faatiliga. However, in response to the question whether such a conclusion was not “just guess work” on the part of the witness, she answered “Correct because he is the matai.” A matai cannot be removed from his title and the family deprived of his services merely because a woman suspects that he might have commanded or authorized his brother to pull up some bananas. Charges must be proved and not just suspected.
It was claimed by the Fano family that Faatiliga had assaulted Lisi, a member of the Fano family. There was a quarrel between Lisi and Faatiliga in which fists were used. Whether Faatiliga was the aggressor or Lisi was the court is unable to say from the evidence. Fiasili testified in response to the question “Who started the fight?” that “It was both of them. Lisi walked toward Faatiliga and Faatiliga walked toward Lisi and they came together and the battle started.” Then Fiasili was asked the question “Who struck the first blow?” and she answered “I do not know because I was quite a distance away.” The burden of proof of the charge was upon the Fano family. That burden has not been sustained with respect to the fight. Faatiliga had a right to defend himself. He had no right of course to be an aggressor, but the evidence does not show that he was.
It is the unanimous conclusion of the court that none of the charges against the defendant was proved by a preponderance of the evidence, also that the action was improperly brought, it being by three-fourths of the adult members of one family to remove the matai of an entirely different family.
The case against Faatiliga is dismissed. Costs in the sum of $25.00 are hereby assessed against Fano, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485050/ | MORROW, Chief Justice.
On July 20, 1940 Saiselu Meredith applied to the Registrar of Titles to have the land Siasiaga registered as her individual property. A survey was filed with the application. On August 29, 1940 Fiailoa and Tuna filed an objection to such proposed registration claiming that Siasiaga was the communal family land of the Lemeanai family. Hence this litigation. Sec. 74 of the Codification.
Saiselu is the present holder of the title Lemeanai. The Lemeanai family and the Salemeanai are one and the same.
The evidence without dispute showed that before the Government of American Samoa was established in 1900 Siasiaga was given by the Aitulagi people to the father of Saiselu. The cession of the American Samoan Islands to the United States in 1900 did not affect the title. Talo v. Poi, No. 16-1937; Salavea L. v. Ilaoa, No. 2-1938. The principal dispute in the case (and the point upon which decision hinges) was whether Saiselu’s father took *131the land as his own individual property or in his capacity as the holder of the Lemeanai title.
To sustain her claim Saiselu testified that the Aitulagi people gave her father the land as an individual and that he gave it to her, both events occurring before the establishment of the Government in 1900. However, Saiselu admitted that she had no personal knowledge as to the capacity in which her father took the land. Her testimony, as she admitted, was based upon hearsay.
Also to establish her claim Saiselu put Alapa of Aitulagi upon the stand. Alapa is 67 years old and familiar with .the land Siasiaga. It is clear from his testimony that the Aitulagi people gave the land to the title Lemeanai. In response to queries as to whether the land was taken by the Lemeanai as his own individual property or as family land, he testified that it was given to the title Lemeanai, and that “it would become communal property then.”
Taking his testimony as a whole we are convinced that the land was given not to Saiselu’s father as an individual but to her father in his capacity as the holder of the title Lemeanai and that it accordingly became the communal family land of the Lemeanai family.
To establish their claim that the land was the communal family land of the Salemeanai family, the objectors proved that it had been used by members of that family (and not others) ever since it was converted from bush land into agricultural land a few years after 1900. This proof was not disputed by Saiselu.
It appeared that Pauga (the true father of the objectors) entered on the land, at that time bush, shortly after the Government was established and put in plantations; that he so used the land until his death about 1920; that after his death the land had been used by his widow, the two objectors, their brother and a younger sister. Aumavae, a Salemeanai family member, also had a house and *132plantations on Siasiaga for some time during the past decade, but he moved away a few years ago and ceased to cultivate the part of the land used by him for plantations. Saiselu herself had the use of a mulberry patch on Siasiaga for about a month about a year and a half ago. We think it clear from the evidence that the occupancy and use by the objectors and the other members of the Salemeanai family has been with the permission of Saiselu. The use and occupation by the objectors as well as the others with the permission of Saiselu is consistent with the property being either the individual property of Saiselu or the communal family land of the Salemeanai family, for Saiselu is the Lemeanai and if the land belongs to the title Lemeanai, as we think it does, her permission would be required by Samoan custom.
In view of all of the testimony, and particularly of the testimony of Alapa, a witness for Saiselu, that the property was given by the Aitulagi to the title Lemeanai and having been so given it “would be communal property,” we conclude that Siasiaga should be registered as the communal family land of the Salemeanai family.
To avoid any dispute regarding the rights of the objectors to the occupancy and use of the land, we shall now give consideration to the legal effect of Saiselu’s giving permission to them to have such use and occupancy. Saiselu herself testified that there was “no limit” to the time she gave the objectors the right to live on Siasiaga; and in response to the question “When you gave them permission did you intend to lead them to believe they could live on that land as long as they live” she answered: “That was my intention if they wanted to continue on the land it was alright.” But taking her testimony as a whole and the other, evidence we are convinced that the permission given covered such period as they might occupy or use the land, to continue so long as the objectors might live, if they *133should use it so long. We think also that it was not the intent of Saiselu that the right of one objector should be terminated by one of them ceasing to make use of Siasiaga.
We think also that the permission given by Saiselu to the objectors does not bind subsequent holders of the Lemeanai title; that the use of the land by the objectors after Saiselu’s death will be subject to the permission of Saiselu’s successor, or successors, in the Lemeanai title. Such seems to be the Samoan custom and we must assume that both Saiselu and the objectors had it in mind when the foregoing permission was given. There was no evidence to the contrary.
The right to the use and occupation of family land by a member of a Samoan family pursuant to permission of the matai is now governed by the Codification. Sec. 3(1) of the Codification of the Regulations and Orders for .the Government of American Samoa reads as follows:
“Such laws of the United States as shall by their own force be in effect in American Samoa together with the Regulations and Orders for the Government of American Samoa promulgated by the Governor and not inconsistent therewith and so much of the common law of England as is suitable to conditions in American Samoa and not inconsistent with either such laws of the United States or such Regulations and Orders are declared to be in force in American Samoa.”
It is true that the establishment of the Government and the extension of the jurisdiction of the United States to these islands did not affect private land titles. But the effect of permission to use and occupy land followed by building a fale and putting in plantations in reliance upon such permission given subsequent to the establishment of the Government is determined by the common law of England, since there is no law of the United States or regulation or order promulgated by the Governor of American Samoa touching .the matter. The common law of England *134(which incidentally is the basic law in 47 of the 48 States in the U.S.) is on this matter suitable to conditions in American Samoa.
“The general rule is that a parol gift of land, accompanied by possession by the donee, will be enforced in equity, when the donee has been induced by the promise of the gift to make valuable improvements to the land, of a permanent nature, and to such an extent as to render a revocation of the gift unjust, inequitable, and a fraud upon the donee. Such a state of facts will... entitle the donee .. . to defend his possession against the donor or his heirs.” 28 Corpus Juris 656. This statement of the law in Corpus Juris is sustained by a multitude of decisions of courts of last resort in the United States. It is a correct statement of the common law.
We think the evidence shows an oral gift of an interest in Siasiaga by the Lemeanai which gift was relied on by Fiailoa and Tuna in putting up a house on the land and putting in plantations. Under such circumstances their rights in the land cannot be terminated by the mere whim of the Lemeanai. She must abide by the terms of the gift, it having been relied upon by Fiailoa and Tuna. It appeared from the testimony of Fiailoa that she is no longer using the land but is living with her husband, a matai, in Leone. Therefore her rights in the land resulting from the aforementioned permission are at an end. Tuna’s right to the occupancy and use of the land will terminate upon her ceasing to occupy and use it, or upon the death of the present Lemeanai whichever first occurs. However, should the present Lemeanai’s death occur during Tuna’s use or occupancy, Tuna will have a reasonable time thereafter to remove the buildings, and plantations. If Tuna’s use and occupancy, or of either of them, continues to the death of the present Lemeanai any further such occupation or use thereafter will, except as stated in the next preceding sen*135tence, depend upon the permission of the next Lemeanai since Saiselu as the Lemeanai did not intend (and probably could not although we make no determination on this point) to bind her successors in the title.
Since Fiailoa and Tuna were given the right to use and occupy Siasiaga together it follows that the right of each was the right to occupy and use an undivided half of the land. Since Fiailoa’s rights have come to an end it follows that the holder of the title Lemeanai — now Saiselu — has the right which Fiailoa formerly had, i.e. the right to use and occupy an undivided half subject to applicable provisions in the decree.
To avoid further disputes and to settle the entire controversy:
IT IS ORDERED, ADJUDGED AND DECREED that the land Siasiaga be registered as the communal land of the Salemeanai family subject (1) to the right of Tuna to occupy and/or use that half of the land toward the Naval Station so long as she may continue to occupy and/or use said half, but not beyond the lifetime of Saiselu but with the right, should Tuna’s occupancy and/or use continue until the death of Saiselu, to remove the buildings and plantations within a reasonable time after such death, and (2) subject to the right of Tuna to remove any plantations she may have on the half of Siasiaga toward Leone, the right of removal to continue for six months.
In explanation of the particular division made by the decree the court observed at the time it visited the land prior to hearing the case that the house built upon Siasiaga by the objectors stood on the half toward the Naval Station.
Costs in the sum of $12.50 are hereby assessed against Saiselu and a like amount against Fiailoa and Tuna, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485051/ | MORROW, Chief Justice.
This is an action by Wightman to recover possession of a house in Leloaloa occupied by Vala, and for certain rent for same.
The evidence shows very clearly that the house is the property of Wightman; that he built it on Loloasa land (he is a member of the Loloasa family) and that he paid for *137the materials going into it. In fact, Vala, while on the witness stand, admitted it was the property of Wightman.
It also appears from the evidence that in July 1939, Wightman gave Vala permission to occupy the house and that, pursuant to such permission, Vala moved into it and has continued to occupy it to the present time. So far as it appears, the occupation was to be rent-free. No definite time for the occupancy was set. “A permissive occupation of real estate, where no rent is reserved or paid and no time is agreed upon to limit the occupation, is a tenancy at will.” 35 Corpus Juris 1122. Vala became a tenant at will.
In the early part of 1941, Wightman gave Vala notice to quit but Vala has disregarded the notice. Vala was entitled to reasonable notice to quit. 35 Corpus Juris 1131. A reasonable time to vacate has long since elapsed and Wightman is entitled to possession.
The court is of the opinion that Wightman is entitled to ten dollars ($10.00) rent for the use of the house during the time Vala continued to occupy it after a reasonable time after receipt of notice to quit. Wightman made no claim for rent prior to that time.
It is accordingly ordered and adjudged that said Vala surrender possession of said house to said Wightman by June 28, 1941 and if he fails so to do, said Wightman may apply to the court for a writ of possession.
It is further ordered and adjudged that said Wightman do have and recover of said Vala the sum of $10.00.
Costs in the sum of $12.50 are hereby assessed against Vala, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485052/ | MORROW, Chief Justice.
On May 31, 1918 Tuiolosega filed his petition against Voa to recover possession of the land Mati in the village of Olosega alleging that he was the owner of said land and denying defendant’s ownership. The case was not brought *139to trial until October 30, 1941. It appeared from the evidence of Tuiolosega himself that he made no effort and did not move to have the case heard until sometime in 1941. The record on file is consistent with this evidence. With reference to getting the case ,to trial one part of Tuiolosega’s testimony was to the effect that “when Mr. Zuberano (Clerk of the High Court) asked me about my case,” the witness said “Just let it ride for a while.” The ride extended for 23 years.
At the outset it should be stated that a court in reaching its decisions is governed by the facts as ascertained from the evidence and the law applicable thereto. In other words, the court first ascertains the facts and then applies the law thereto. The judges do not make the law. The power to make law rests with the Governor. Sec. 3(4) of the Codification. Should cases be decided according to the individual whims of the judges the titles, property, lives, and liberty of the Samoan people would become insecure.
The petition is for the recovery of the possession of the entire land Mati. At the trial it appeared that this tract of land is divided into two parts, one part occupied by the Tivao family, the other by Letuli of the Voa family. To the question “You do not claim the part where the Tivao people are?” Tuiolosega, while on the stand replied “No.” In view of Tuiolosega’s disclaimer in open court of ownership of the part occupied by the Tivaos, the Court will treat the petition as if it related only to that part of Mati occupied by Letuli.
Tuiolosega’s testimony also reveals that Voa and his family began gathering the fruits of the land about three or four years after the Government was established in Manua in 1904 and that they continued to gather such fruits for “quite a few years after that...”. These acts resulted through the years in freqúent quarrels between the Tuiolosega family and the Voa family. Apparently, they *140culminated in Letuli’s moving onto the land about 1917. With reference to this, Tuiolosega testified as follows:—
“Q. Did you ever tell Letuli he could go on that land (Mati) ?
A. No.
Q. He just moved on the land within what you claim without saying anything to you about it?
A. Yes.
Q. What condition was the land, bush or plantation?
A. All of my plantations.
Q. He just moved in and took this plantation without saying anything to you about it?
A. That is right.
Q. Were you county chief at the time?
A. I became county chief in 1917.
Q. He moved on there before you became county chief?
A. Yes.
Q. Has he lived there ever since?
A. Yes.
* * *
Q. You just let him move on there and did not do anything about it?
A. I was objecting right along but he never take any notice of it.”
In another part of his testimony Tuiolosega indicates that Letuli did not move onto the land until about 1918. Whether it was in 1917 or 1918 is immaterial.
In response to the question: “When you made no use of the land since 1918 when Letuli went on?” Tuiolosega replied “No.” And again in answer to the query: “Do I understand you to say that you have not made any use of that land since about 1918?” he answered “Yes, Letuli was using the land since that time.”
We are convinced from the whole of Tuiolosega’s testimony that the land sought to be recovered has been in the adverse possession of Letuli at least since 1918 and that for many years prior thereto the Voa family made frequent entries upon the land and took the fruits therefrom and *141that such entries were based upon a claim of ownership. It may well be that during these same years preceding Letuli’s moving onto the land the Tuiolosega family had some plantations on it and got some of the fruits therefrom.
Tuiolosega’s original claim of title is based purely upon hearsay testimony. None of the witnesses who testified concerning the origin of Tuiolosega’s alleged title had any personal knowledge of the supposed origin which was a transfer for a consideration from witness Laolagi’s grandfather to Tuiolosega’s grandfather. The witnesses’ information was based upon hearsay, pure .tradition. We have held that title to land cannot be established by such testimony. Thus in case of Talo of Pago Pago v. Tavai of Pago Pago, No. 14-1938 (Am.S.) we said:—
“Title to land cannot be evidenced by hearsay. There is no such exception to the hearsay rule. Nor can it be so evidenced when the hearsay is in the form of reputation. In Howland v. Crocker, 7 Allen (Mass.) 153, evidence that a tract of land was known as the ‘Barney Crocker lot’ was ruled inadmissible to show title in him. In South School District v. Blakeslee, 13 Conn. 227, 235 the Court in ruling that the reputation of a house as the property of a certain person was inadmissible to prove that it was his property very pointedly remarked that ‘a man’s general character may be proved by reputation, but not his title to real estate.’ And ‘That title cannot be so evidenced (by reputation) is generally conceded.’ II Wigmore on Evidence, Sec. 1587.”
This same principle was applied on September 19, 1941 in disposing of the complaint of Afe regarding the award of part of the land Falesama-Tai in Olosega to Letuli by a Board of Arbitration. Letuli of Olosega v. Faaea and Tagaloa of Olosega, No. 8-1941 (Am.S.).
We think from the evidence that without doubt— and Tuiolosega’s own testimony fully confirms this view— that the possession of Letuli (a member of the Yoa family) since at least 1918 and probably for a year or so before, has *142been open, notorious, actual, visible, exclusive, continuous, hostile and under a claim of title. Such possession, which continued for more than twenty years, was clearly adverse to any claims of Tuiolosega or his family. See 2 Corpus Juris 50; 2 Tiffany on Real Property (2nd Ed.) Secs. 500-504; Cook v. Clinton, 64 Michigan 309, 8 A.S.R. 816; Salavea v. Ilaoa, No. 2-1938 (Am.S.).
In Talo of Pago Pago v. Tavai of Pago Pago, supra, in which case was involved the ownership of the land Laolao in Pago Pago we said:—
“This Court has decided that the Statute of 21 James I, C. 16, passed by the English Parliament in 1623 limiting actions for the recovery of real property, subject to certain exceptions not here applicable, to twenty years is a part of the law of American Samoa. Talo v. Poi, No. 16-1937; Leapaga v. Taumua L., No. 8-1938. The result of adverse possession for twenty years is to divest the true owner of his title and to vest it in the adverse possessor. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 14 S.Ct. 458, 38 L.Ed. 279. ‘... in the United States and Canada the doctrine is almost universal that possession for the statutory period not only bars the remedy of the holder of the paper title but also extinguishes his title and vests title in fee in the adverse occupant.’ 2 Corpus Juris 251 citing in support thereof a multitude of cases from numerous federal and state courts. Referring to the interpretation of similar statutes in the various states limiting actions for the recovery of real property, Tiifany in his work on Real Property at pp. 997-8 says: ‘They have, however, with but few, if any, exceptions, been construed as operating to transfer the title to the wrongful possessor, enabling him to assert his ownership in an action of ejectment, or otherwise against the whole world, including the original owner, and as rendering necessary a legal conveyance in order to revest ownership in the latter, after the lapse of the statutory period.’ This interpretation of the effect of the operation of the Statute of 21 James I, C. 16 has heretofore been approved by this Court, Talo v. Poi, No. 16-1937.”
It follows from the application of these legal principles that if Tuiolosega or his family did have any title (and there was no satisfactory proof that he or it had) to the *143part of the land Mati occupied by Letuli, such title has been extinguished through the operation of the doctrine of adverse possession for twenty years unless the filing of Tuiolosega’s petition on May 31, 1918 operated to stop the running of the statute of limitations.
“While it has been held that the actual commencement of a suit is sufficient to stop the running of the statute of limitations, without any regard to, or dependence on, any after diligence of plaintiff in its prosecution, it seems to be well established that if a suit is voluntarily abandoned, discontinued, or dismissed, or is not proceeded with for a considerable period of time, the operation of the statute will not be suspended.” 37 Corpus Juris 1053. Tuiolosega’s own testimony heretofore referred to shows conclusively that he made no effort to have the case tried from May 31,1918 when his petition was filed until some time in 1941. Twenty-three years of delay in prosecution does not constitute diligence. We have no hesitation in saying that under these circumstances the running of the statute was not stopped by the institution of the action in 1918. It follows, therefore, that Tuiolosega is not the owner of the part of land Mati in Olosega occupied by Letuli of the Yoa family-
No adjudication is made concerning the ownership of that part of Mati occupied by the Tivaos since Tuiolosega during the hearing disclaimed ownership to that part.
It follows, therefore, that Tuiolosega’s petition should be and it will be dismissed. No costs will be assessed against Tuiolosega since it appeared from the evidence that he paid costs at the time his petition was filed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485054/ | ORDER
On 4 August 1944, Taape Fuamuli of Alega Village offered for registration of title a certain piece, parcel, and tract, of land known as “Alega” together with a survey thereof made by one, A. Narruhn, on 2 .August 1944. Due notice of the application for registration was published by the Attorney General on 4 August 1944 as is shown by the return of Poyer, Marshall of the High Court. Within due time, Toafili of Fagaitua, Tuitele of Leone, and Le’iato of *156Fagaitua, filed objection to the registration of this land by Taape Faamuli and each one of the objectors now claims that he is the true owner of the property known as “Alega”. The High Court, consisting of the Chief Justice, District Judge Liufau, and District Judge Muli, was convened to try the issues involved. A hearing was commenced on 13 December 1944 and concluded on 15 December 1944. At the conclusion of the testimony, the court held a conference in the office of the Chief Justice, and thereafter in open court announced its decision in favor of Taape Faamuli of Alega village. The Chief Justice stated that a written opinion would be filed at a later date.
There exists in Samoa what is known as the matai system of land ownership. Under this system, most of the land on the island of Tutuila is known as community lands and the title is held by a matai or head of the family for the benefit of all the members of that family. Since the establishment of the Government of American Samoa, certain restrictions, have been laid down as to the alienation of community lands. Before a matai of the family can transfer, deed, or alienate any family lands, he must comply with the rules as laid down in the Codification.
This case presents, however, an unusual situation in which each one of the claimants to the land known as “Alega” traces his title by tradition back to a time prior to the establishment of the Government of American Samoa. Under these circumstances we must take into consideration the laws and customs of the people prior to the establishment of the present Government.
Tuitele of Leone, claims that the land known as “Alega” belongs to the Tuitele family by way of a gift from High Chief Le’iato “as a return for the courtesies and services which were rendered to him by our family during the occupying of Leone village in the olden days.” He claims this gift was made about 14 years prior to the establishment of *157the Government and that his family has held the title since that time. He also testified that according to the Samoan customs at that time, when land was given by a High Chief to another that such a gift should and must be recognized. He, therefore, bases his claim upon a tradition in his family to the effect that this land was given to his family by a former High Chief Le’iato. Tuitele of Leone, further claims that after this gift was made he sent Tuafili, a member of his family, to Fagaitua, in order that he could look after the land known as “Alega”. This is emphatically denied by the claimant Tuafili of Fagaitua.
High Chief Le’iato of Fagaitua, testified that according to the tradition in his family, the Le’iato family came into possession of the land in dispute in 1887, thirteen years before the establishment of the Government of American Samoa, and either prior to, or at the time of, the civil war known as the Puletua Government. He claims that the High Chief of his family had never given away any of the lands owned by that title.
Tuafili of Fagaitua, bases his claim to ownership of this property upon a gift from High Chief Le’iato, according to a tradition in his family, which gift he alleges was based upon a similar consideration as that claimed by Tuitele of Leone, to wit, certain services rendered by his family to High Chief Le’iato.
Taape Faamuli of Alega claims that according to the tradition in his family the property known as “Alega” was conveyed to his grandfather Faatauvaa by way of gift and the consideration was similar to that claimed by Tuitele of Leone and Toafili of Fagaitua, to wit, certain services and courtesies rendered to one of the former holders of the title Le’iato. Upon the death of Faatauvaa the property descended to his son, Taape Faamuli, matai and father of the present Taape Faamuli who is now asking that this property be registered in his name. Under this tradition of title, *158the present Taape Faamuli went into possession of Alega more than thirty years ago and he has been in open, continuous, adverse possession, since that time.
The evidence is conflicting and each claimant contradicts the other. Under such circumstances the court is compelled to look for corroborating evidence which is uncontradicted. The outstanding fact which corroborates Taape Faamuli in his claim is that he went into possession of this land more than thirty years ago when it was nothing but what is commonly called, “the bush,” which means that no crops or plantations were on the land at that time. Since Taape Faamuli took possession of the land he has planted coconut trees, breadfruit trees and other plantations for the use of his family and he denies that he has rendered services to anyone since he occupied this land.
Taape Famuli, by the “sweat of his brow” and the work and labor of the members of his family, has given value to this land known as “Alega”. There is no evidence that any one of the other claimants has down [sic] anything to build up the land or improve the property, and there is very little evidence, if any, that any one of the other claimants has asserted or openly claimed title to the property. Taape Faamuli has held actual possession for more than thirty years.
Under all the evidence in the case, the court makes the following
FINDINGS OF FACTS:
(1) That according to the true family tradition as proved in this case, the land known as “Alega” was given to Faatauvaa by a former holder of the title Le’iato, prior to the establishment of the Government of American Samoa in consideration of certain services and courtesies rendered by Faatauvaa.
*159(2) That Taape Faamuli, the father of the claimant Taape Faamuli, inherited the land known as “Alega” from his true father Faatauvaa and held the title to this property until he authorized his son Taape Faamuli to go into possession thereof more than thirty years ago; and this is the true tradition of the title to the property known as “Alega”.
(3) That Taape Faamuli has been in open, notorious, and adverse possession of the land known as “Alega” for more than thirty years and has not rendered services to any matai or chief during that time by reason of the possession and occupation of this land.
(4) That none of the objectors, to wit, Toafili of Fagaitua, Le’iato of Fagaitua, nor Tuitele of Leone, has any right, title, or interest in the property known as “Alega”.
(5) That by reason of the true tradition of the title and on account of open, notorious, and adverse possession, the claimant known as Taape Faamuli is the true and legal holder of the title to the property known as “Alega” for the benefit of himself, the members of his family and his heirs and assigns forever.
It is ORDERED, ADJUDGED AND DECREED that Taape Faamuli of Alega, be allowed to register the title to the property known as “Alega” in his own name for the sole benefit of himself, the members of his family and his heirs, and assigns forever.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at fifty ($50.00) dollars and that each of the objectors, to wit, Toafili of Fagaitua, Tuitele of Leone, and Le’iato of Fagaitua, shall pay one-third of the court cost.
The property referred to in this decree is described as follows:
*160“For Point of Beginning commence at an iron pin set on the south side of the Main East-West Highway at a point which lies 21,500 feet more or less when measured in a straight line, and in an Easterly direction from Breakers Light, and being further described as bearing S. 66°16' W. from North Pioa.
From said Point of Beginning run thence N. 38°39' E., crossing the aforementioned Main East-West Highway, a distance of 640.41 feet to a point; run thence N. 38°40' W. a distance of 640.22 feet to a point; run thence N. 63°26' W. a distance of 1118.05 feet to a point; run thence West, a distance of 2000.00 feet to a point; run thence S. 26°34' E. a distance of 1118.05 feet to a point; run thence South 1500.13 feet to a point; run thence S. 25°46' E., crossing the said Main East-West Highway, a distance of 906.08 feet to an iron pin; continue thence S. 25°46' E. a distance of 75 feet more or less to the shoreline; run thence in a Northerly and then in an Easterly direction, following the shoreline, a distance of 4200 feet more or less to a point which lies S. 38°39' E. a distance of 15 feet more or less to the Point of Beginning.
Excepting from the land thus described that part which lies within the Right-of-Way of a Public Road, known as the Main East-West Highway.”
The above described land contains 107.91 acres more or less.
All bearings given above refer to the TRUE MERIDIAN. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485056/ | ORDER
On the 18th day of October 1943, Faafia of Pago Pago, filed an application to register the matai name “Maiava”. On October 20, 1943, Arona of Faleniu filed an objection to the registration of the matai name Maiava by Faafia claiming that he, Arona, was the rightful successor to this matai name. On November 16, 1943, Malufau of Faleniu, filed a similar objection claiming that he was entitled to hold the name. On November 16, 1943, Arona of Faleniu filed a written statement with the Clerk of Court requesting that Malufau be allowed to hold this title.
On January 22,1945, when this case was called for trial, all parties being present it was agreed in open court that the case would be continued so that the family could have a *167further meeting and conference in an effort to agree upon one person to hold this title. This case was set for another hearing on Monday, January 29, 1945, at 10 o’clock A.M. When the case was called for trial on Monday, January 29, 1945, Malufau of Faleniu and Faafia of Pago Pago both announced in open court that the family had held a meeting during the preceding week and that all parties to the controversy had agreed that Arona of Faleniu should hold the matai name “Maiava” and they both agreed to withdraw their respective application and objection. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Arona of Faleniu is the true and lawful successor and holder of the matai name “Maiava” and that he be allowed forthwith to register this name.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be forthwith delivered to the Attorney General of American Samoa.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that court cost in this case be taxed in the sum of $25.00 and that the cost be paid in equal parts by Faafia of Pago Pago, Arona of Faleniu and Malufau of Faleniu. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485102/ | DECISION
MORROW, Chief Justice.
Leapaga offered certain land in the village of Nuuuli designated in an accompanying survey as Utualii for registration as the property of the Leapaga title. Puailoa objected to such proposed registration. Hence this litigation. *334See Sec. 905 of the A. S. Code. Puailoa claimed the land as the property of the Puailoa title.
On the day preceding the hearing the court visited the land and viewed it in the presence of both parties. There is a fale on the land end of the property and another on the sea end. Savusa, 63 years old, of Nuuuli and the principal witness for Leapaga testified that Puailoa had a guest house on the land end of the property and that Puailoa Yaiuli had had two former guest houses on the same site. Savusa who received his title in 1905 also testified in part as follows:
“Q. Was there a Puailoa house on the land when you got the title Savusa?
A. Yes.
Q. Was it standing on the place where the present fale is on the land?
A. Yes the same location.
Q. What family has occupied that house that stood on that site since 1905 when you got the title ?
A. Puailoa Yaiuli.
Q. Then the court is to understand from your testimony that the Puailoa family has occupied the house on the land end of the disputed land ever since 1905 ?
A. Yes.
Q. Were the Puailoa people living on that land when the Government was established?
A. Yes.
Q. Were they living on there for a considerable time before the Government was established if you know?
A. Yes.
Q. Let us go to the fale on the sea end of the land, who is occupying that fale at the present time?
A. Puailoa.
Q. Do you recall when that fale was built?
A. About 20 years ago.
Q. Who built it?
A. Moe in Faleniu.
Q. For whom did he built [sic] it ?
A. Puailoa Yaiuli and Salataima his wife.
*335Q. Have the Puailoa people lived in that house ever since it was built?
A. Yes Puailoa Vaiuli family with his wife Salataima.”
In response to a question by Judge Muli, “How many Puailoa holders did you see living on this land?” Savusa answered : “This is the third Puailoa.”
Salataima, another witness for Leapaga, testified that she was the widow of Puailoa Vaiuli; that he died in 1929 and that for ten or twelve years before that she and Vaiuli had lived in the fale on the land end of the property and that prior to that time they had lived in a fale on the sea end.
Savusa also testified that a former Savusa gave certain land to the Leapaga and certain other land to Vaiuli before he (the witness) was born; that the land given to Leapaga was the land in dispute. This information, according to Savusa, was passed on as hearsay and tradition in Savusa’s family. Savusa had no actual knowledge as to whether there was any such gift. Being hearsay it is not entitled to consideration. The Puailoa people have kept .the property in dispute clean for sanitary inspection for many, many years. The evidence on this point seems conclusive.
Maae, aged 63, and who has lived in Nuuuli all of his life testified that the Puailoa people were living on the land when he was a small boy; also that the house on the sea side has been up more than .twenty years. In response to Judge Puletu’s question “Do you know how many houses Puailoa built on this land in dispute?” Maae answered “Five houses, two on the sea end and three on the land side.” Maae was also asked “Since you became familiar with this land and you did as soon as you got old enough to know things, who has claimed the land as theirs?” To this question Maae answered “Puailoa”.
The evidence shows beyound [sic] doubt that the Puailoa people have possessed and occupied the land in dispute *336for more than forty years and very probably since before the Government was established. They have claimed it as their own property during their occupation. Having possession of the property there is a presumption that the Puailoa family are its owners. In the case of Leatutufu v. Iuli, No. 62-1948 we said:
“The present possession of the land by Leatutufu creates a presumption that he is its owner. Bradshaw v. Ashley, 180 U.S. 59, 63; I Jones on Evidence (4th Ed.) 133; 20 Am.Jur. 231. Mr. Wigmore in his monumental work on evidence says that “where title to land becomes material, the fact of present possession alone may serve to create a presumption of ownership . . ,” Wigmore on Evidence (3rd Ed.) Section 2515. We held to the same effect in Amituanai v. Tuli, No. 52-1948 (Am. Samoa).”
The possession of this property by the Puailoa family according to the evidence has been actual, open, exclusive, notorious, continuous, hostile and under claim of title for more than twenty years. If the Leapaga ever had any claim to the land such claim has long since been outlawed by the statute of limitations. 2 Corpus Juris 251; 2 Tiffany on Real Property (2nd Ed.) secs. 501-4; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Vaimaona v. Mulitauaopele S., No. 57-1948 (A. S.).
If the Puailoa people were in possession of this land, and we believe from the evidence that they were, when the jurisdiction of the U.S. was extended to the American Samoan Islands in 1900, their title was not affected by such extension of jurisdiction. I Hyde, Int. Law, p. 253; U.S. v. Percheman, 7 Peters (U.S.) 51, 86-87; Talo v. Poi, No. 16-1937 (A. S.); Toilolo v. Ilaoa, No. 5-1937 (A. S.).
It is our conclusion from the law and the evidence that the land offered for registration in this case is the property of Puailoa in his capacity as matai of the Puailoa family. There is a public highway across the land which the court observed on its visit thereto. The Puailoa of course *337holds his title subject to the rights of the public in the highway.
It is ORDERED, ADJUDGED AND DECREED that the land Utualii as shown in the survey accompanying the offer to register the same shall be registered as the communal family land of Puailoa as matai of the Puailoa family subject to the rights of the public in the highway now crossing said land. The Registrar of Titles will be so advised.
Since Leapaga paid the costs of the survey and such survey will inure to the benefit of Puailoa it is equitable that Puailoa pay the court costs which are hereby assessed against him in the sum of $12.50, the same to be paid within two weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485103/ | DECISION
MORROW, Chief Justice.
This is a proceeding to determine the succession to the matai name Faasii of Leone. Toti filed his application to be registered as the Faasii on April 2, 1947. On April 30, 1947 Gagamoe (Joseph Willis) filed an objection to the proposed registration and became a candidate for the name himself. Falesau Asi of Upolu filed an objection to Toti’s offer to register the name on May 2, 1947. Her objection was withdrawn on February 25, 1948 thereby leaving only two candidates.
Section 926 of the Code prescribes the requirements for succession to a matai title. Each of the candidates according to the evidence meets the necessary requirements.
Section 933 of the Code prescribes that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
In support of his candidacy each candidate filed a petition purporting to be signed by various members of the family. There were 72 signatures on the petition for Toti and 8 on the petition for Gagamoe. The 8 signers for Ga*339gamoe were his uncle, his half sister, his wife, three brothers, a sister of the full blood and his mother.
Faasii is a junior matai title in the Ilaoa family. The holder of the title Faasii renders service to the Ilaoa. It was claimed by Gagamoe that none of the signers on Toti’s petition were members of the Faasii family. However there was evidence from which we conclude that there were 24 members of the Faasii family on Toti’s petition and that the 48 other signers were members of the Ilaoa family. It appears to be the custom in the Ilaoa family when a junior matai is to be named for the whole family to get together and make the selection. Pursuant to such custom the Ilaoa family held a meeting and settled on Toti to hold the title Faasii. We are convinced from the evidence that a majority of the family favor the candidacy of Toti and wish him to be the holder of the Faasii title.
Gagamoe earns from $70.00 to $90.00 a month at the Navy telephone exchange as a repairman. He sells no mats or curios. He has plantations. He makes a little extra money, from $15.00 to $20.00 a month, doing odd jobs as an electrician. He speaks English. He has completed the seventh grade in school. Toti is the policeman for District Governor Toomata, earning $4.85 a month as such. He has plantations. He makes mats and curios, from the sale of which he receives about $400.00 a year. He has completed the third or fourth grade in school. He speaks little English. As a result of our observation of the personality of the two candidates at the hearing and the evidence we have reached the conclusion that they are on a parity with respect to the issue of forcefulness, personality, character and capacity for leadership.
Gagamoe is the blood son of Falesau who was adopted by Faasii Tiamo. Toti is the husband of Tamala, the blood daughter of Faasii Taetapu. Neither candidate has any Faasii blood in his veins. In the case of Toilolo Lui v. Tuli*340loa, No. 60-1948 we held that the term “hereditary right” as “used in subdivision 3 of Section 933 of the Code means right based upon blood and not upon marriage.” In view of our holding in that case it would follow that Toti has no hereditary right to the name. We think that the same rule applies to a blood son of an adopted daughter, since we conclude that the hereditary right as used in subdivision 3 of Section 933 means a right based upon blood. It follows that both candidates are on a parity with respect to hereditary right.
It is obvious that the candidate that will be the best matai will be the more valuable to the Government of American Samoa. If a matai handles the affairs of his family well he is of great value to the Government. It is apparent to us from the evidence that the great majority of the family wish Toti to be the Faasii. If he is given the name he will have the support of the family from the beginning. If Gagamoe should be given the name the circumstances of the case indicate that he will not have the support of the family for a considerable time, if at all. Since he was able to get so few signers upon his petition it is clear to us that he would have serious difficulty, even if awarded the title, in securing the support and cooperation of his family. Our conclusion is that Toti will be of more value to the Government of American Samoa as the holder of the title Faasii than Gagamoe.
Since we find that Toti prevails over Gagamoe on the issues of the wish of the majority or plurality of the family and of value of the holder of the title to the Government of American Samoa and that both candidates are on an equal footing with respect to the two other issues, it follows that under the provisions of Section 933 of the Code Toti should be registered as the holder of the Faasii title.
Accordingly it is ORDERED, ADJUDGED AND DECREED that Toti of Leone be registered as the holder of *341the matai name Faasii of Leone. The Eegistrar of Titles will be so advised.
Court costs in the sum of $25.00 are hereby assessed against Gagamoe the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485105/ | DECISION
MORROW, Chief Justice.
Misi offered certain land in the village of Iliili designated in an accompanying survey as Faatoaga for registration as his individually owned land. Taatiatia, a member of the Timu family, objected to such proposed registration claiming that the land was the property of the Timu title. Hence this litigation. Sec. 905 of the A. S. Code. Prior to the hearing the court visited the land Faatoaga and viewed it in the presence of both parties.
It is our conclusion from the evidence, which in some respects is conflicting, that Misi entered upon the land in 1919 while it was bush and cut the large trees thereon and that after letting the trees lie for a year he burned them and proceeded to put in plantations, and that he has used the land ever since for plantation purposes. The land being bush and not occupied by anyone was res nullius, the property of noone [sic]. When Misi entered upon it and cut down the trees and put in his plantations and claimed the land as his own, it became his in accordance with the customs of the Samoans, which customs, when not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa, are preserved. Sec. 2 of the A. S. Code. There is no law of American Samoa or of the United States concerning American Samoa in conflict with the customs of the Samoans with respect to the acquisition of title to bush land. Blackstone considered that an original title to property was acquired by the first occupant under a claim of ownership. II Blackstone’s Commentaries, pp. 8-10. See also Maine on Ancient Law, 5th Ed. pp. 242-246. We think Misi was such occupant.
Taatiatia has plantations on the piece of land adjoining the surveyed land. He stated that he cut the large trees on the adjoining land himself. When the court visited the land Taatiatia said that he had had no plantations on the surveyed land for 30 years. There was evidence indicating *348that Taatiatia and Muli might have cut some of the large trees on the surveyed land about 1915. However, Taatiatia told the Judges at the time of their view of the land that Misi cut the big trees on it just as Misi testified he did. Faatoaga is part of a large tract of land in the village of Iliili called Vaieli. We think that the trees which Muli and Taatiatia cut were on parts of Vaieli adjacent to Faatoaga but not on it. Due to the passage of time, 33 years, Taatiatia and Muli could very well have been mistaken in their testimony as to just where they cut trees.
The testimony in favor of Misi is clear-cut to the effect that Misi himself cut the trees on the land. There is no doubt in our minds from the evidence that Misi has occupied the land since 1919 under a claim of ownership without objection by anyone. It is a significant fact that when the survey was made Timu had notice thereof and that he did not attend the making of the survey. A matai knows his own land and if Timu had thought that the surveyed land was his he would have been on hand and objected to the land being surveyed by Misi. His absence was an implied admission that it was not property of the Timu title. Misilagi and Sipili have had plantations on the land for some time with Misi’s permission. Neither Timu nor Taatiatia have ever made any objections to their occupancy of part of it by the authority of Misi.
The present possession of the land by Misi creates a presumption that he is the owner. Bradshaw v. Ashley, 180 U.S. 59, on Evidence (3rd Ed.) Sec. 2515. Our holdings in Amituanai v. Tuli, No. 52-1948 (A. S.) and Puailoa v. Leapaga, No. 64-1948 (A. S.) are to the same effect.
The evidence clearly shows that Misi has been in the actual, open, exclusive, notorious, continuous, hostile possession of the surveyed land under a claim of ownership ever since 1919. If anyone else ever had any claim to the land (and we think no one did) such claim has long since been *349outlawed by the Statute of Limitations. 2 C.J. 251; II Tiffany on Real Property (2nd Ed.) Sec. 501-4; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Vaimaona v. Mulitauaopele S., No. 57-1948 (A. S.).
It is our conclusion from the law and the evidence that the land offered for registration in this case is the individually owned property of Misi.
Accordingly, it is ORDERED, ADJUDGED AND DECREED that the land Faatoaga as shown in the survey accompanying the offer to register the same shall be registered as the individually owned land of Misi. The Registrar of Titles will be so advised.
Costs in the sum of $12.50 are hereby assessed against Taatiatia, the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485106/ | DECISION
MORROW, Chief Justice.
This case involves the question as .to who shall be registered as the holder of the matai name Satele of Vailoatai. Yiliamu S. filed his application to be so registered. Kosi, Tupea, Faumuina and Talili each filed an objection to such proposed registration, each of the objectors thereby becoming a candidate for the title.
*351The evidence showed without doubt that Viliamu and the other four candidates are qualified to succeed to a matai title. Sec. 926, A. S. Code. The fact that Faumuina attended a church meeting during a part of May 1947 held in Upolu did not break his continuous residence in American Samoa during the five years preceding the vacancy in the Satele title. Mere temporary absence from his home in Alofau with an intention to return thereto did not effect a change in his domicile since it is clear from the evidence that at the time he went to Upolu he intended to return to his home as soon as the meeting was over, which he did. Any other construction of Sec. 926 would disqualify a person from holding a matai title if he should be outside the limits of American Samoa for even one day during the five years preceding the vacancy therein. Such a construction was never intended. “A residence may continue to exist in spite of a temporary absence from it, although the absence might be long continued.” I Beale on Conflict of Laws, Sec. 10.3. To the same effect, see Popejoy v. Boynton, 112 Ore. 646, 230 Pac. 1016 and Jacobs v. Spring, 286 Pa. 113, 132 Atl. 918.
Sec. 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
8. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each of the candidates filed a petition with the court signed by various members of the Satele family in support of his candidacy. There are five branches of the Satele fam*352ily, each candidate being backed by his or her branch. Malepeai, who had charge of getting the signatures on Talili’s petition, after filing it, withdrew a part thereof containing about 90 names from the office of the Clerk of the High Court in order that he might get an additional signature. Through some mistake it was not returned to that office. However, Malepeai, together with some other matais in the Satele family, made up a list of the signatures on the part of the petition withdrawn and filed it. There was no objection by the other candidates to the use of this substituted list in the trial of the case and the court treated it as the petition of the original signers on that part of the petition withdrawn and not refiled.
There were 92 names on the list for Faumuina. Three of these were objected to as not being members of the family. We think the objection was well taken and that the members of the family favoring his candidacy numbered 89. Tupea objected to 7 other names on Faumuina’s petition but the court believes in the light of the evidence that the objection to these 7 was without foundation. There were 35 names on Kosi’s petition, 3 of the signers being under 14 years of age. There were only 3 names on Tupea’s petition. There were 31 names on Viliamu’s petition and 105 on Talili’s. Fourteen of the signers for Talili were under 14 years of age. On account of the youthfulness of these 14 it is our opinion that their names should not be counted, inasmuch as they are too young to have an intelligent wish as to who should be the matai of the family. It is significant that under Sec. 930(d) of the Code the signers in support of the claimant to a matai title must be over 14 years of age. Kosi objected to 90 names on the petition for Talili claiming that .they were not members of the Satele family. Tupea objected to 7 on Talili’s petition. We think that Kosi was wrong when he said that the entire 90 were not members of the family. However, we believe *353that at least some of the 90 including some of the 7 objected to by Tupea are not family members. Our conclusion from the evidence is that Faumuina with 89 members of the family supporting him has more support for his candidacy than any of the other candidates. It is our conclusion that he has a plurality of the family behind him and that he therefore prevails over the other candidates on the issue of “the wish of the majority or plurality of the family.”
Tupea is 78 years of age. She reached the 9th grade in school. She does not speak English. Her income is about $50.00 a year from weaving baskets and mats. Ioelu, her husband, gives her some money. She has rendered service to former Sateles.
Kosi, age 41, earns $56 per month as the foreman of a small gang of workmen which keeps the Naval Station at Pago Pago clear of trash and rubbish. He has plantations from which he sells taro, bananas and copra, his sales aggregating from $150 to $300 per year. He manufactures curios from the sale of which he receives about $100 per year. His education ended with the 6th grade in school. He speaks a little English and has rendered service to former holders of the name.
Faumauina is 56 years of age. He has held the high title Faumuina for 32 years and has been county chief of Saole County for the same period of time. His good record as county chief is well known as will appear from the evidence. His record as county chief and matai of the Faumuina family is evidence of his superior ability as a leader. He has plantations from which he sells copra, taro and bananas. He sells mats and curios, the women of his immediate family making the mats. His income is about $1,800 per year. He is a graduate of Fagalele School and prior to his becoming a matai and county chief studied for three years in Leuolemoega College in Upolu. He does not speak *354English. Former holders of the Satele title have received service from Faumuina.
Talili, age 61, makes about $300 a year from the sale of taro, bananas, copra and curios. Any income he may have from the sale of mats made by the women members of his immediate family is not included in that sum. He has completed the 5th grade in school and speaks a little English. He was a policeman for the county chief of his county for a number of years. He has rendered service to former holders of the Satele title.
Viliamu, age 25, does clerical work in the office of the Attorney General, for which he receives a salary of $70 per month. He testified that his income from the sale of taro, bananas and breadfruit from his plantations runs about $50 per month. He also stated to the court that he received from $700 to $1,000 per year for services as assistant copra clerk. The records of this court show that Viliamu was sentenced on March 10, 1943 to 8 years in jail upon a conviction for manslaughter. About a year ago he was released from prison upon a parole. In March of this year he was sentenced in District Court #1 to pay a fine of $25 for disorderly conduct and a like fine for assault and battery. His own counsel in making his final argument to the court in behalf of Viliamu said: “I have just stated to this court that my client is a drunkard, rascal, and like any other young man, yet, I believe, and such belief will be confirmed by all educated people that it is only natural that as soon as he is loaded with such responsibility he will automatically get out of such defects.” We think that “character” as used in Sec. 933(2) of the Code means the character of the candidate at the time the hearing is had and not character hoped for but by no means assured at some indefinite future time. Viliamu attended the Marist Brothers School at Atuu. He speaks English. Viliamu has spent most of his adult life in jail. Obviously he has not had the *355opportunity which the average Samoan has to become acquainted with the needs of the various members of his family*
The court studied the personalities of each of the five candidates during the hearing. It had an excellent opportunity to size them up. In the light of the evidence and our observations of the candidates our conclusion is that Faumuina is the best qualified of the five with respect to “forcefulness, character, personality and leadership.”
The evidence showed that at least three former Sateles descended through the female line had held the title. It is apparent to us that it is customary in the Satele family for descendants through either the male or female line to hold the title.
Tupea is the granddaughter of Satele Saualii. She comes through the male line and has one-fourth Satele blood in her veins. Kosi is the great grandson of Satele Talafalemalama. He has one-eighth Satele blood in his veins. He comes through the male line. Faumuina comes through the female line. He is the blood son of Satele Pili and has one-half Satele blood in his veins. Talili is the grandson of Satele Pua’a. He has one-fourth Satele blood in his veins and comes through the male line. Viliamu is the blood son of Satele Teutusi. He has one-half Satele blood in his veins and comes through the male line.
In view of the fact that it is the custom in the Satele family for the Sateles to come through either the male or female line it is apparent that Faumuina and Viliamu are on a parity with respect to the issue of hereditary right, each having one-half Satele blood in his veins. It is also apparent, since they have more Satele blood in their veins, that Faumuina and Viliamu prevail over candidates Kosi, Tupea and Talili with respect to the matter of hereditary right.
*356The Satele family is a large one composed of five branches as heretofore stated. At the present time the family is split. It is to the interest of the government that this family live together in peace and harmony. The candidate who will be able if awarded the title, to weld this scattered family into a peaceable and happy unit will be the most valuable to the Government of American Samoa. To accomplish this end the matai must be a good leader. He must be respected by the members of the family. He must have a good character in order to gain that respect. We believe from what we heard and saw at the time of the hearing that candidate Faumuina will be the most valuable to the Government of American Samoa.
In view of our findings that Faumuina prevails over the other candidates on the issue of “the wish of the plurality of the family,” the issue of “forcefulness, character, personality and leadership” and on the issue of the “value of the holder of the matai name to the Government of American Samoa” and the further finding that he stands on an equality with Viliamu with respect to the issue of the “best hereditary right” and prevails over Kosi, Tupea and Talili with respect to this latter issue, it follows that under the law and the evidence Faumuina is entitled to the matai name Satele.
Sec. 2 of the Code provides that “the custom of the Samoans not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.” Custom in American Samoa of which this court has judicial notice is to the effect that the same person shall not hold two matai names at the same time. The laws of the United States concerning American Samoa do not touch upon this matter, nor does any other law of American Samoa other than the portion of Sec. 2 of the Code just quoted. It follows that the same person cannot hold two matai names at the same time in American Sa*357moa. It is clear therefore that Faumuina cannot be registered as .the Satele until after he resigns from the Faumuina title which he stated he would do if awarded the Satele title.
It is ORDERED, ADJUDGED AND DECREED that Faumuina shall have 15 days after the date of this decision within which to exercise his privilege of resigning from the Faumuina title and that upon his filing his resignation from such title within such 15 days with the Registrar of Titles he shall be registered as the Satele. The Registrar of Titles will be so advised.
Costs in the amount of $18.75 are hereby assessed against Viliamu, a like amount against Tupea, a like amount against Talili, and a like amount against Kosi. Costs will be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485107/ | DECISION
MORROW, Chief Justice.
This proceeding is to determine the right to the succession of the matai name Mao of Ofu. Togiai filed an application on February 26, 1947 to be registered as the holder of the name. Ili (also known as Tauiliili) filed an objection to such proposed registration on March 17, 1947. On September 10, 1947 Ili asked the court to permit Siva to be substituted as the objector. The 30 days for filing objections having long since expired the court could not of course permit Siva to be substituted for Ili as a candidate for the name. However, the court cannot overlook the fact that this request on the part of Ili to allow Siva to be substituted for him is an indication that Ili is not particularly desirous of holding the name Mao.
The requirements for succession to matai title are set out in Sec. 926 of the Code. It is clear from the evidence that each of the candidates meets the requirements of this section and is eligible to succeed to a matai title.
Sec. 933 of the Code prescribes that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Both candidates filed petitions signed by various members of the Mao family in support of their respective candidacies. There were 75 signatures on the petition for Ili and 30 on the petition for Togiai. Ili objected to one of the signers on Togiai’s petition claiming that since he was only married to a woman in the Mao family he was not to be *359considered a member of that family. The court does not believe that under Samoan custom this objection is well taken. In view of the fact that Ili has 75 signatures on his petition and Togiai has only 30 on his it is clear that Ili prevails over Togiai on the issue of “the wish of the majority or plurality of the family.”
Ili is 52 years of age. He has plantations. He sells from $200 to $300 worth of copra a year and receives annually about $100 from the sale of mats. He said he spoke very little English. He was clerk of District Court No. 6 for a few years. He completed the third grade in a mission school. He also did a portion of the work of the fourth grade but had to quit school because of illness.
Togiai, 40 years of age, has plantations from which he sells about $400 worth of copra per year. He has an income of about $300 per year from the sale of mats. He demonstrated to the court that he speaks broken English. At one time he was a policeman for the Pulenuu of his village. He completed the sixth grade in Poyer School.
The court observed the personalities of the two candidates at the time of the trial. Togiai is 12 years younger than Ili and a more vigorous man.' It is our opinion in the light of what we observed and the evidence adduced at the hearing that Togiai prevails over Ili on the issue of “forcefulness, character, personality and capacity for leadership”.
Togiai is a grandson of Mao Samusamu. He has one-fourth Mao blood in his veins. Ili is the great grandson of Mao Tauiliili. He has one-eighth Mao blood in his veins. In view of these facts Togiai has the better hereditary right to the name Mao and prevails over Ili on the issue of hereditary right.
We believe also that Togiai prevails over Ili on the issue of the value of the holder of the matai name to the Government of American Samoa. Togiai is much younger than Ili *360and in the prime of life. Presumably if awarded the title the affairs of the Mao family with respect to the mataiship will be settled for a much longer period than they would be if the court should award the title to Ili. Togiai has more income than Ili and is better able financially to look after the affairs of the family in case of need than is Ili. This greater income may be due in part to Togiai’s youth and vigor. Togiai has almost twice as much formal education as Ili and he speaks English very much better than the latter. We .think for these two latter reasons that he will be better able to handle the affairs of the family in its future dealings with the government.
In view of the fact that we find that Togiai prevails over Ili on the second, third and fourth issues and that Ili prevails over Togiai on the first issue only, it follows that under the law and the evidence the Court is required to award the title Mao to Togiai.
Accordingly it is ORDERED, ADJUDGED AND DECREED that Togiai shall be registered as the holder of the matai name Mao of Ofu. The Registrar of Titles will be so advised.
Court costs in the sum of $12.50 are hereby assessed against Ili, the same to be paid within 2 weeks. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485108/ | DECISION
MORROW, Chief Justice.
This is a proceeding to determine the right of succession to the matai name Vo’a of Olesega. Faasa filed an application on March 28, 1946 with the Registrar of Titles to be registered as the Vo’a. On April 17, 1946 Moa filed an objection to the proposed registration and became a candidate for the name. Sec. 926 of the Code prescribes the requirements for eligibility to succeed to a matai title. The evidence shows clearly that each of the two candidates meets all the requirements of this section and is therefore eligible to succeed to a matai title.
Sec. 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
*3622. The forecfulness [sic], character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each of the candidates filed a petition purporting to be signed by those members of the Vo’a family supporting his candidacy. There were 85 signatures on Moa’s petition. Faasa testified, as did Moa, that all of the signatures on the petition for Moa were those of members of the Vo’a family. All of those who signed the petition for Moa were 14 years of age or over. There were also 85 signatures on the petition for Faasa. Ten of the signers on his petition were under the age of 14 years. Due to their youth we think that such ten signers should not be counted inasmuch as we believe that they were too young to have an intelligent wish as to who should be the matai of the family. We did not count signatures of persons under 14 years of age on a similar petition in the case of Kosi, Tu ea [sic], Faumuina, and Talili v. Viliamu S., No. 77-1948 (A. S.). In that case we said “It is significant that under Sec. 930 (d) of the Code the signers in support of a claimant to a matai title must be over 14 years of age.” Moa testified that 83 signers on Faasa’s petition were not members of the Vo’a family. Ape, a member of the Vo’a family, also testified to the same effect. Since we shall not consider the ten children under 14 years of age on Faasa’s petition it follows, regardless of the contention of Moa with respect to the above 83, that Moa, who has without question 85 family members on his petition, has the support of a majority of the family. Consequently Moa prevails over Faasa on the issue of “the wish of the majority or plurality of the family.”
*363Moa is 69 years of age; Faasa 39. The former completed 5 grades in a mission school, the latter 6 grades. Moa has an income of between $400 and $500 per year from the sale of copra and mats. Faasa has an income of about $300 per year from the sale of like products. Moa has held the matai name Moa for 32 years. Consequently he has had a very long experience in directing the affairs of a matai family and is familiar with the duties of a matai. Faasa is a young man. Moa was the foreman of a stevedoring gang which unloaded ships during the war in Tutuila. He is a carpenter. Faasa worked as a carpenter at Tafuga when the air base was being established there during the war. He also worked as a stevedore. Moa does not speak English. Faasa speaks a little English. The judges observed the personalities of the candidates during the trial. It is our conclusion that everything considered Moa prevails over Faasa on the issue of “forcefulness, character, personality and leadership of the candidate.”
The evidence showed that Moa is the blood son of Vo’a Tuuao; that his mother was the daughter of Vo’a Tautala. He has, therefore, one-half Vo’a blood in his veins derived from his father and one-fourth Vo’a blood derived through his mother. Faasa is the blood son of Vo’a Tato. He has one-half Vo’a blood in his veins. In view of the foregoing Moa prevails over Faasa on the issue of hereditary right.
The value of the holder of a matai name to the Government of American Samoa depends largely upon the skill with which he directs the affairs of his family. Since we believe from the evidence and our observation of the candidates that Moa has qualifications for leadership superior to those of Faasa, we conclude that he will be of more value to the Government as the holder of the matai name Vo’a than will Faasa. Since Moa has a larger income due to his own labor than Faasa it is reasonable to expect that he will be better able to assist a member of his family in *364need than Faasa. The prosperity of any country depends largely upon the amount of goods produced within it. The more goods a man produces the greater factor he is in promoting the prosperity of his country. We think from the evidence that Moa is more industrious than Faasa and produces more goods. These last mentioned factors fortify our conclusion that Moa will be of more value to the Government as a matai than Faasa.
Since we find that Moa prevails over Faasa on the four issues it follows that he is entitled to be registered as the Vo’a.
However, Moa already holds a matai name. We decided in the case of Kosi, Tupea, Faumuina & Talili v. Viliamu S. supra, that under the law the same person cannot hold two matai names at the same time. Hence Moa cannot be registered as the Vo’a unless and until he resigns from the Moa title. He stated to the court that he would do so in the event that he should be awarded the title.
It is ORDERED, ADJUDGED AND DECREED that Moa shall have 15 days next following the date of this decision within which to exercise his privilege of resigning from the Moa title and that upon his filing with the Registrar of Titles such resignation within such 15 days he shall be registered as the Vo’a. The Registrar of Titles will be so advised.
Costs in the amount of $12.50 are hereby assessed against Faasa, the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485109/ | DECISION
MORROW, Chief Justice.
Thomas Meredith died in 1918. His six children to wit, Mrs. Margaret Edith Meredith Frantz, Mrs. Frances Siafiafi Harrington, Miss Annie Meredith, Mrs. Rosie Meredith Mann Leota, Mrs. E. Betham, and Arthur S. Meredith survived him. They inherited from their father a portion of the land “Taumauga” on which is located the Sadie Thompson Inn. These children, their father dying intestate, became tenants in common of the property. Clarke v. Dirks, 178 Iowa 335, 160 N.W. 31; 62 C.J. 416; I Tiffany on Real Property (2d Ed) 644.
Mrs. E. Betham and Rosie Meredith Mann Leota conveyed their shares to their brother, Arthur S. Meredith on May 8, 1944 and May 17, 1944, respectively. On April 3, 1944 Arthur S. Meredith leased the premises for a period of five years from April 1, 1944 to respondent, Sesera Brown. The lease covered the entire interest in the premises and not just the undivided share of Arthur S. Meredith. Brown understood when he took the lease that Arthur Meredith had authority to act for the other heirs as well as for himself.
The Bank of American Samoa as agent for Mrs. Margaret Edith Meredith Frantz and her husband Paul A. Frantz, Mrs. Frances Siafiafi Harrington and her husband *368Joseph Harrington and Miss Annie Meredith brings this action to cancel the above lease alleging that Arthur Meredith had no authority from his last three-named sisters to lease their undivided shares in the premises and that the respondent has breached a number of covenants in the lease. In addition the complainants pray for the abatement of an alleged public nuisance.
The deeds of Rosie Meredith Mann Leota and of Mrs. E. Betham to Arthur S. Meredith executed subsequent to the lease operated under the familiar doctrine of estoppel by deed (assuming that Arthur did not have authorization to lease the shares of these two sisters) to vest a leasehold interest in their undivided shares in Brown for the unexpired term of the lease, there being a covenant for quiet.enjoyment therein. See Tiffany on Real Property (2d Ed) 2117 and 2126.
None of the complainants was in American Samoa at the time of the hearing to. testify. Arthur Meredith, the lessor, was also outside the jurisdiction of the court. There were no depositions introduced. There was no direct evidence before the court as to whether or not Arthur S, Meredith when he made the lease was authorized to act for his sisters, Mrs. Margaret Edith Meredith Frantz, Mrs. Frances Siafiafi Harrington and Miss Annie Meredith. “Generally speaking, the law indulges in no presumption that an agency exists. It is sometimes asserted that agency is never presumed. It is also said that agency will not be presumed from the mere fact that one person does an act apparently for another.” 3 C.J.S. 252. However, the presumption of lack of authority is rebuttable. The records of the Bank of American Samoa in connection with the management of the Thomas Meredith Estate in Tutuila, and which were before the court, indicate pretty clearly that as early as September 1939 these three sisters did execute powers of attorney to their brother, Arthur S. Meredith.to *369manage their respective interests in the Meredith estate in Tutuila. Nevertheless, since we are of the opinion that these three complainants are not entitled to any relief in this case, whether they authorized their brother to act for them or not, we shall assume in deciding the case that they did not appoint Arthur S. Meredith as their agent.
If Arthur Meredith did not have authority to lease the shares of the three complaining sisters to Brown, it does not follow that the lease is void. It is valid with respect to Arthur Meredith’s one-sixth interest and the other two-sixths interest of his sisters, Rosie and Mrs. E. Betham, and Sesera Brown became a tenant in common along with Mrs. Frantz, Mrs. Harrington and Miss Meredith for the duration of the lease. “All the lessors who signed the lease acquiesced in the delivery of it to the plaintiff, and if it is not binding on those not signing it, yet it operates to transfer to plaintiff the possession and right in the property for the term of the lease by those executing it, and thereby plaintiff became the tenant in common with the other owners.” Eakin, C. J. in DuRetts v. Miller, 60 Oregon 91, 93; 118 Pacific 202; Ann.Cas. 1913 D, 1163, 1164, a case in which some tenants in common signed the lease of a farm to the plaintiff and the others did not. The court held that the lease was valid as to the tenants in common who signed it.
Our conclusion is that even if Mrs. Frantz, Mrs. Harrington and Miss Meredith did not authorize their brother to make the lease, they have no right to have the lease cancelled for that reason and that Brown merely became a tenant in common with them for the duration of the lease. We do not wish to be understood as saying that Arthur Meredith was not authorized to act for the three complaining sisters. We make no finding one way or the other on this point since it is not necessary to a decision.
*370The complainants seek a cancellation of the lease for alleged breaches of certain covenants therein By lessee Brown. In view of the fact that the lease does not contain a provision for its forfeiture for breaches of the covenants or any of them, our conclusion is that the lease cannot be cancelled conceding that some of the covenants were breached. “In the absence, however, of an express stipulation of proviso to that effect, the general rule is that the breach by the lessee of the covenants or stipulations on his part contained in the lease does not work a forfeiture of the term, since the lessor’s remedy is by way of a claim for damages. In the absence of a stipulation for a forfeiture, a lessee does not forfeit his term by the nonpayment of rent or of taxes which he has covenanted to pay.” 32 Am.Jur. 720.
“The non-payment of rent, in the absence of a provision therefor in the lease or of a statute so declaring, does not operate as a forfeiture of the term or confer upon the lessor any right of re-entry, . . .” 32 Am.Jur. 723. To the same effect, see Judkins v. Charette, 255 Mass. 76, 151 N.E. 81, 45 A.L.R. 1. It is claimed by the complainants that the lease should be cancelled because it provides for an annual rental of $1,200.00 payable yearly in advance and the respondent has at times during the lease paid the rent at the rate of $100.00 per month in advance. If a lease containing no forfeiture clause cannot be forfeited for nonpayment of rent, it clearly follows that it cannot be forfeited because the rent is paid monthly in advance instead of yearly in advance. Furthermore the evidence in this case convinces us that the lessor Arthur S. Meredith subsequent to the making of the lease agreed with respondent Brown that he might pay the rent monthly in advance instead of yearly in advance.
It was argued that the parol evidence rule made evidence of a subsequent oral change as the time of pay*371ment of rent inadmissible. This is not correct. “The rule which forbids the introduction of extrinsic evidence to affect a written instrument does not exclude parol proof of The existence of any distinct, subsequent, oral agreement to rescind or modify any such contract, grant or disposition of property, provided that such agreement is not invalid under the statute of frauds or otherwise.’ ” Jones on Evidence in Civil Cases (4th Ed.) page 844 citing Stephen, Evidence, art. 90. That this is sound law is well established. There is no statute of frauds in American Samoa. A Statute of Frauds is in force in the several states only by virtue of its adoption by the legislatures thereof. The English Statute of Frauds, 29 Car. II, c. 3, requiring leases of land for a term of more than 3 years to be in writing was not brought to this country with the common law. 49 Am. Jur. 364; McKennon v. Vinn, 1 Okla. 327, 33 Pac. 582, 22 L.R.A. 501. Nor was it brought to American Samoa with the common law. Since the lease from Arthur Meredith to Brown was not required to be in writing in the first place, its terms could be modified by subsequent parol agreement. There was no breach of the covenant as to the time when rent should be paid. Any change in time of payment was the result of a mutual agreement.
The lease contains a covenant to the effect “That the lessee during the said term shall pay the fire insurance premium on the policy covering the said premises and also all annual taxes payable thereon to -the Island Government.” From the evidence it was clear that there was a policy covering the Sadie Thompson Inn at the time the lease was made. The premium on that policy has been paid to date by Sesera Brown. It is obvious from the terms of the covenant that the lease did not require the procurement of a new policy nor did the covenant require additional insurance to be procured should the insured building increase in value. The covenant required Brown to “pay *372the fire insurance premium on the policy covering the said premises.” This obviously refers to the policy in existence at the time the lease was made. Brown has performed this part of the covenant to the letter. Whether he has failed to pay the taxes was not clear to us from the evidence. But whether he did or not, there being no forfeiture clause in the lease, makes no difference as far as the right to cancel the lease is concerned. “In the absence of a provision for forfeiture of the term, although it is a common practice to stipulate that the lessee’s breach of this covenant to pay the taxes will give the lessor the right to terminate the lease, the courts will, as in other cases, enforce such a provision.” 32 Am.Jur. 727.
We think that there was no breach of the covenant to repair the building and to keep it repaired. The evidence showed that prior to November 1945 Brown spent $1,009.37 for lumber which went into the Sadie Thompson Inn to put it and keep it in repair. How much was spent for labor did not appear. However, it did appear that as many as eight carpenters had been employed by Brown at one time to put the building in repair. It must be remembered that Pago Pago is not New York City or Washington, D.C. What would be considered as putting and keeping the Sadie Thompson Inn in repair might very well not be considered as putting the Waldorf Astoria or the Statler in repair. In his final argument the counsel for the complainants stated that the Sadie Thompson Inn could be sold in its present state for $12,500.00, and that at the time the lease was made the building was worth about $3,200.00. The land on which the Inn stands could not be worth as much as $2,500.00. If Brown, through repairs and improvements to the property has increased the value of the building from $3,200.00 to at least $10,000.00 it would seem that he has fulfilled his covenant to repair the building and keep it in repair. Brown, in addition to the repairs *373just mentioned, has spent an additional $8,000.00 in putting the Inn in condition to cater to tourists.
It appears from the evidence that Brown, or his agent, has used the building as a lodging house without first procuring a license therefor as required by Sec. 730 of the Code, and that he has violated his covenant not to “use or permit to be used the said building or any part thereof for any illegal or immoral purposes.” It should be stated that there was no evidence whatever of any use of the building for immoral purposes, the breach relating to the use for illegal purposes only. In the absence, however, of a provision for forfeiture, the lease cannot be cancelled because of the breach of this covenant. “At common law, in the absence of a provision for forfeiture, a lessee does not forfeit his term by using the demised premises for an illegal purpose or business.” 32 Am.Jur. 730. To the same effect is Dobbins’s Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637.
We-do not believe from the evidence that Brown has assigned his lease or any part thereof, despite the fact that there was considerable circumstantial evidence that an assignment might have been made in violation of the covenant not to assign without the written consent of the lessor. Even if there was an assignment in violation of the covenant it would be no ground.for forfeiture. “The rule that an express provision in the lease is necessary in order to work a forfeiture applies equally well not only to breach of covenant to pay rent but also to the breach of a covenant against assigning or subletting, the breach of a covenant as to the payment of taxes and assessments, the breach of a covenant as to the use of the premises or the breach of a covenant to make repairs.” 51 C.J.S. 683.
The occupation of the basement of the Inn as a warehouse by G.E.C. Reid & Co. began under a lease made *374prior to 1928. The evidence indicated that this lease was still in effect when the lease which is sought to be cancelled was executed on April 3, 1944. The recognition of this lease of the basement by respondent Brown did not constitute a subletting in violation of his covenant not to assign the lease “or any part thereof without first obtaining the consent in writing of the lessor.”
About a year ago when it appeared that the Samoan Area Airways might bring tourists to Tutuila, Brown made extensive repairs and additions to the Sadie Thompson Inn so as to be able to provide suitable accommodations for the prospective tourists. He nailed coconut fronds and laufala mats to the walls and ceilings of the inn. Besides praying for a cancellation of the lease the complainants asked the court to “declare the coconut leaves and laufala mats which have been nailed to the walls and ceilings of the Sadie Thompson’s Inn to be a fire hazard to life, limb, and property and to order the removal of the same.”
This second prayer is based upon the claim that the coconut leaves and laufala mats make the inn a fire hazard to buildings nearby to such an extent that it constitutes a public nuisance. We have no statute or regulation covering this matter and are therefore governed by the common law with respect to it.
“In order to render a building a nuisance, by reason of exposure of other buildings to danger from fire, the hazardous character of the business must be unmistakable, the danger imminent, and the use of such an extraordinary character as to leave no doubt of the nuisance. ... A structure is not rendered a nuisance by the mere fact that its presence enhances the rates of insurance on neighboring property.” 46 C.J. 680. 1 Wood, Nuisances, (3d Ed.) Sec. 148 is to the same effect. See also Harris v. Randolph Lumber Co. 175 Ala. 148, 57 So. 453; Duncan v. Hayes 22 N.J. Eq. 25. Mr. Wood also indicates in the above reference *375from his work on Nuisances that before the building constitutes a nuisance, the situation must be such “as to make injurious results probable.” Mere possibility of injurious results is not enough. In Radney v. Ashland, 199 Ala. 635, 75 So. 25, L.R.A. 1917 E. 355, the court held that a dilapidated barn of pine construction which was used as a livery barn and garage with large quantities of hay, fodder and other feed stuffs and also a quantity of gasoline stored therein was not a public nuisance despite the inflammable character of the contents and the further fact that a fire originating in the barn would probably have spread to other buildings one of which was a jail inhabited by prisoners. Every wooden building is something of a fire hazard but such buildings are not per se nuisances. In our opinion the evidence does not show that the danger of a fire at the Inn is imminent. While dangerous results are possible we do not regard them as probable. It is our conclusion that the laufala mats and coconut fronds nailed to the walls and ceilings of the Inn do not make it a public nuisance within the foregoing principles.
It may very well be that there should be some legislation governing the use of coconut fronds and laufala mats in hotels and inns because of the admitted increased possibility of fire. However, that is a matter solely for the legislative department of the government to determine and not for the courts. “In general, the legislature may declare anything to be a nuisance which is detrimental to the health, morals, peace, or welfare of the citizens of the state. It may also enlarge the category of nuisances by declaring acts or things to be nuisances which are not such at common law, even though it thereby injuriously affects the use or value of property as it existed at common law.” 39 Am.Jur. 293.
Our conclusion is that complainants’ petition should be and it is hereby DISMISSED.
*376Costs in the sum of $50.00 are hereby assessed against the complainants, the same to be paid within 60 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485111/ | DECISION
MORROW, Chief Justice.
This is a proceeding to determine the right to the succes*380sion of the matai name Talo of Pago Pago. Tauilo filed her application with the Registrar of Titles to be registered as the holder of such name on January 5, 1948. Poialii filed his objection to such proposed registration on February 4, 1948 and became a candidate for the name. Hence this litigation.
The requirements for succession to a matai title are prescribed by Sec. 926 of the American Samoan Code. It is apparent from the evidence that each candidate complies with the requirements of this section and is therefore eligible to succeed to a matai title.
Sec. 933 of the American Samoan Code, which is the law prescribed for this Court to follow in deciding matai name cases provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
8. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Both candidates filed petitions purporting to be signed by various members of the Talo family supporting their respective candidacies. There were 28 signers on Poialii’s petition and 93 on Tauilo’s. Poialii frankly admitted, when questioned by the court, that he was not a member of the Talo family and that the signers on his petition were not members of that family. He stated that they were members of the Poialii family of which he is the present matai. After Poialii became aware, during the course of the trial, that it was the wish of the majority of the members of the Talo family that was to be considered by the court in decid*381ing the case he changed his testimony somewhat.. However, all of the Judges believe that his first testimony on this matter was true. Poialii did not claim that any. of the 98 signers on Tauilo’s petition were not members ofithe Talo family. His objection to her petition was upon' the ground that many of the signers do not reside in Pago- Pago but in other villages on Tutuila. This court has- many;M-mes held that a family member residing in a villagethan to which the title is attached has a right to have hjs wishes considered in determining who shall be the matai.-£%will be observed that Sec. 933 prescribes that the court shall consider: “The wish of the majority or plurality of the family.” The statute does not say that the court shall consider “'The wish of the majority or plurality of the family residing in the village to which the matai name is attached.” We shall, as we, must, consider the wish of family members residing in vijjages other than Pago Pago. Since we believe that Poialii tokt the truth when he stated that the signers on his petition were not members of the Talo family and since we further believe that the 93 signers on Tauilo’s petition are members of the Talo family, it follows that we must find that the wish of the majority of the family is that Tauilo shall be awarded the title. Accordingly we rule that she prevails over Poialii on the first issue.
On the issue of forcefulness, character, personality and capacity- for leadership we believe that Poialii prevails over Tauilo. The two candidates have had about the same amount of formal education; however, Poialii has had experience as a merchant and as a matai for many years. Both candidates are intelligent people. Poialii is 62 years old, Tauilo 32. Although Poialii is in his declining years we think, everything considered, that he has a greater capacity for leadership at least over the next few years than does Tauilo.
*382On the issue of best hereditary right it is clear that Tauilo prevails over Poialii. Tauilo is the blood daughter of Talo Sialofi. She has one-half Talo blood in her veins. According to his own evidence Poialii is not a descendant of a Talo. He has no Talo blood in his veins. \
Since Poialii has no members of the Talo family on his petition it is quite apparent that the family does not wish him to be its matai. The family had a meeting after the death of the last holder of the name and at that meeting decided that it wished Tauilo to be the next Talo. That the family wishes Tauilo to be the matai is also quite evident from the fact that she had 93 Talo signers on her petition. If Tauilo becomes the matai she will enter upon her duties with the family behind her. If Poialii should be given the name it is apparent that he would enter upon his duties without the backing of the family The candidate that will have the support of the family and become the best matai will be the most valuable to the Government of American Samoa. We conclude from the evidence that candidate Tauilo will be more valuable to the Government as the holder of the name Talo than will Poialii.
Since Tauilo prevails over Poialii on the first, third and fourth issues it follows that under the law the court must award the title Talo to her, and it does so. The Registrar of Titles will be advised to register Tauilo as the holder of the matai title Talo of Pago Pago.
Costs in the sum of $12.50 will be assessed against Poialii, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485058/ | ORDER
This case was called before the court on January 22, 1945 at which time both parties agreed that the family would hold another conference during the following week and would report back to the court on January 29, 1945 the result of the conference. When the case was called on Monday morning, January 29, 1945, Laisene of Nuuuli stated in open court that as a result of the further meeting of the members of this family he desired to withdraw his objection and to consent that Tulafono of Nuuuli should hold the matai name “Fagaima”. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Tulafono of Nuuuli is the true and lawful successor and holder of the matai name “Fagaima” and that he be allowed forthwith to register this name.
*170IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be forthwith delivered to the Attorney General of American Samoa.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that court cost in this case be taxed in the sum of $25.00 and that the cost be paid in equal parts by Tulafono of Nuuuli and L. Laisene of Nuuuli. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485059/ | ORDER
On 22 July 1944, Lufoa’i, a resident of Fagatogo village, filed his application with the Attorney General of American Samoa to register the matai name “Lutu”. On 22 August 1944, notice of his application was posted on the bulletin board at the Administration Building for a period of 30 days as required by law. On 23 August 1944, Tupuola of Fagatogo village, filed an objection to the registration of the matai name Lutu by Lafoa’i and at the same time claimed that he, Tupuola, was entitled to register this name. On 14 September 1944, Simaile of Fagatogo village, filed a similar objection ,to the registration of the name by Lafoa’i claiming that he, Simaile, was entitled to register the matai name Lutu. Thereafter, Tupuola withdrew his claim to the title in favor of Simaile.
The trial of this case was commenced before the High Court of American Samoa on 13 February 1945 and concluded on 14 February 1945. At the close of the case the Chief Justice announced that the court would take the matter under consideration and render its decision at a later date.
In support of his claim to the title, Simaile offered in evidence a decision of the Court in the case of Afoa Molioo *172v. Lutu and Faagata tried in the District Court in 1905; and cited two other court orders — one by the American Judge and Secretary of Native Affairs in 1922, and the other by the Chief Justice in 1985. It will be necessary to review these three former decisions in order to arrive at a just and correct decision in the present case.
On 19 September 1905, a suit was commenced in the District Court at Fagatogo by Afea Molioo, the plaintiff, against Lutu and Faagata, defendants. Summons was duly issued by District Judge Mauga as follows:
“To LUTU & FAAGATA of the village of Fagatogo, defendants. You are hereby ordered (summoned) to appear before this court on Friday, Sept. 23, 1905, at 10:00 a.m. when you will be tried according to the charges brought against you by AFOA MOLIOO of the village of Fagatogo, plaintiff. See reverse side on which appear the allegations. If you fail to appear the plaintiff may bring charges just the same, and the decision may [sic] awarded without your presence.
/s/ Mauga,
District Judge.”
The complaint attached to the summons reads as follows:
“1. That Lutu and Faagata have endeavoured to interfere with the exercising of my hereditary pule which was derived from my ancestors of yore; that I make all the assignments and appointments of the family because I am the true heir; that it is entirely up to me to nominate any person I desire to hold the title LUTU and the name FAAGATA: that I have the pule over all the lands of the family; that this pule started from our forefathers and thus devolved on me; that my pule is hereditary.
2. That Lutu and Faagata, nowadays, because of their insolence, have tried to take my pule away from me; that the Pulenu’u Tiumalu is the cause of all this trouble — he does not perform his duty as he should, but acts as a ringleader in creating nuisance and misunderstanding amongst the people; that the village of Fagatogo at the present is divided into two political factions because of such acts.
*1733. Wherefore I pray the Court to order the said Lutu and Faagata to leave me alone and not to interfere with the exercising of my pule over the title LUTU and the name FAAGATA and also over the lands.
4. That the said Lutu and Faagata pay for the court costs.
I am,
/s/ Afoa Molio’o.”
There is a notation on the back of the summons and complaint indicating that the papers were served on Lutu and Faagata by one, Mata, on the 20th day of September 1905 but the return is not signed by Mata.
On the third page of the printed form of the summons and complaint there appears to be a “decision” but it bears no signature nor date. The fact that the decision is unsigned by the Judges does not necessarily indicate that it was not the order of the Court. In the past it seems to have been a common practice to have the Clerk make an informal note of the decision on the record. The decision noted on the record is as follows:
“1. Lutu Samuela shall continue to hold the title until his death, or until he commits such misconduct as will give good cause for his removal. When his death occurs, or if he should be removed before death, the whole family of LUTU shall meet together to appoint a successor. If they disagree among themselves, or if trouble occurs, then Afoa shall appoint the LUTU, for the Court believes Afoa has the pule over the title Lutu.
2. Lutu’s side to pay $15.00 Court costs.
3. Afoa’s side to pay $10.00 Court costs.”
At the time the decision was rendered in 1905, the statute as now contained in the Codification of the Kegulations and Orders of the Government of American Samoa had not been enacted into law. That decision was evidently based upon some ancient Samoan custom or belief that one person had the superior authority and right to designate a successor to a matai name. If it be a fact that such was the *174custom or the law in 1905, a radical change was made when the statute was written as now contained in the Codification. Under the present law one person is not permitted to select a successor to a matai name, but it is specifically provided that to be eligible to such an appointment, the person “must be chosen by his family for the title.” The present law sustains that fundamental democratic principle that the majority of the people shall have the right to decide who shall rule over them. At the very outset of the trial of this case, the Chief Justice directed the interpreter to read paragraphs 1, 2, 3, 4 and 4A of Section 79, Section 80 and paragraph 1 of Section 81 of the Codification which regulate the selection of a matai. These sections read as follows:
“Section 79. Matai Names.
1. Every matai in American Samoa shall register his title and designating name and the record of such registration shall be kept as a part of the records of the Attorney General.
2. Every person succeeding to the title of matai shall give notice of such succession to the Attorney General for registration.
3. If the Attorney General is satisfied that the claimant to the title has a right to the same, he shall, after thirty days’ notice, issue a certificate to the applicant stating the date of registration, and until the certificate of registration is obtained, no title shall be recognized.
4. In case of any dispute as to the succession to a matai title, the High Court of American Samoa shall hear and determine the rights of the claimants and after decision in the premises will certify the name as determined by law to the Attorney General for registration.
4A. In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority of the family.
2.' The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the-male descendant shall prevail.
*1754. The value of the holder of the Matai name to the Government of American Samoa.
Section 80. Ineligibility for Matai Title for Office Because of Crime.
1. No person who shall, after the enactment of this regulation, be convicted of and sentenced for murder, attempt to commit murder, rape, attempt to commit rape, burglary, robbery, larceny, embezzlement, false pretense, forgery, perjury, smuggling, selling intoxicating drink to natives, or infamous crime, or aiding or abetting therein, shall be eligible to hold any office or position of honor, trust, or profit under the Government of American Samoa, or be permitted to register a matai name; and a pardon granted such person shall not restore his eligibility to such office or position, or his right to register a matai name, unless it is expressly so provided.
Section 81. Enligibility [sic] Requirements for Title or Office.
1. No person not having all the following qualifications shall be eligible to succeed to any title which may by law enable the holder of the title to take a public office.
(a) Must be at least three-quarters Samoan blood.
(b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he became eligible for the title.
(c) Must live with Samoans as'a Samoan.
(d) Must be a descendant of a Samoan family and chosen by his family for the title.
(e) Must have been born on American Soil, except persons born of parents of Samoan blood who are (1) inhabitants of American Samoa (2) but temporarily residing outside of American Samoa or engaged in foreign travel at date of birth of such child and (3) whose matai at any time within 13 years after the birth aforementioned files with the Registrar of Titles a sworn declaration that such child born outside of American Samoa now resides in American Samoa and desires such child to be an inhabitant of American Samoa.”
It is thus apparent that the decision of the court in 1905 has been rendered inapplicable to the present case by the adoption of the statutory law as is now contained in the Codification.
*176What has been said makes it unnecessary to point out other reasons why the decision of 1905 could not be used as a basis upon which to sustain the claim of Simaile in this case.
It is further contended by Simaile that the order of the American Judge and Secretary of Native Affairs in 1922 sustains his claim to the Lutu title. A careful review of the file in that case has been made. It appears from the record that Lutu Samuela died in 1921. Shortly after his death, Afoa Molioo, Samoan Judge of District Court Number One, appeared in the office of the Secretary of Native Affairs and presented to that official a copy of the court’s decision rendered in the year 1905. There was no trial of the issues involved in the contest for the Lutu title but an ex parte ruling and decision was made by the Secretary of Native Affairs in which he held that under the terms of the decision made in 1905, Afoa Molioo had the right to nominate and appoint the successor of Lutu Samuela. Afoa Molioo forthwith appointed himself and became known as Lutu Molioo. In making his ruling, the Secretary of Native Affairs and American Judge had the following to say:
“The Secretary of Native Affairs, Sydney D. Hall, made a thorough investigation of all the matters involved and due to the authentication of the decision which should obtain and be followed in any action that might occur in case of a disagreement in the family.
Various members of the Faagata family, have at different times, presented themselves at the office of the Secretary of Native Affairs, insisting that because of the disagreement involved in the selection of a Matai to hold the name ‘Lutu’ that the matters in connection therewith be made the subject of a trial in court. But the unvarying answer of the Secretary of Native Affairs has been that this matter had already been decided by previous court action and that nothing remained in view of the existing disagreement but to abide by the said previous court decision and register as Lutu the person designated by Afoa, which action had this day been ordered by the said named official and which is in keeping with the policy of the Court *177that no previous court cases and decisions handed down by previous judges will be reviewed and perhaps reversed.”
The third decision relied upon by Simaile was made in 1935 by the Chief Justice. Lutu Molioo died in 1934. There were three applicants for the title, Faagata (Mano) of Fagatogo, Lauvale of Fagatogo and Afoa of Fagatogo. The record in this case shows that the Chief Justice called the three applicants before him on August 19, 1935 and read to them the old decision of 1905. In concluding his remarks to the three applicants for the title the then Chief Justice made the following statement:
“I will give you until next Monday morning to get together and amicably agree and decide on some holder of the name and if you cannot do it then I shall name whoever Afoa names for the matai name Lutu. I hope you can do that and I do not care who you name whether it is Faagata, Lauvale of Afoa and that is all that I can do. I would just as soon as try this case but it would not be of any use.”
Naturally it was impossible for the family to agree and the second Afoa appointed himself to hold the title Lutu under the terms of the decision of 1905 and the Chief Justice passed the following order:
“On this 26th day of August 1935 before me came Afoa, Faagata and Lauvale all of the village of Fagatogo, in accordance with an agreement made by all of them with me on the 19th day of August 1935 that between the two dates an agreement should endeavored to be reached between the three of them as to the holder of the name Lutu.
By the decision of the High Court rendered in the case tried in the year 1905 Afoa was given the pule of the name Lutu.
It appears at the hearing held on this day that the three parties heretofore mentioned have not been able to agree on a candidate and it is therefor my opinion that Afoa may choose whomsoever he sees fit as the holder of the matai name Lutu.
Afoa in the absence of agreement with the other two parties has decided to take the name Lutu himself.
It is however my opinion that as the name Lutu and Afoa are both high names they should not both be held by the same person and *178accordingly and in accordance with the ruling of the Attorney General it will be necessary for' Afoa to resign his matai name Afoa before he takes the name Lutu.”
It would serve no useful purpose at this time to comment upon or criticise the procedure followed in these two cases, except to say that the orders and rulings made in those cases are not considered as a guide or as authority in the decision of the present contest. However, it may be well at this time to state that there are certain fundamental rights to which every citizen is entitled. His right to resort to the courts of justice for the purpose of asserting, defending or protecting his personal or property rights should never be denied. Even though he may be in error in his contention, yet he is entitled to his day in court. All cases, with very rare exceptions, should be tried in open court where the public may see and hear what is being done and thereafter a decision should be rendered in accordance with the law and evidence in the case.
The court has gone to a great deal of trouble ,to review the trial records of the three cases heretofore brought before the court wherein the Lutu title was involved. The purpose in doing so is to set at rest for all time ,to come all controversy as to what has been done in the past. Those cases are ended, and hereafter the matai will be selected by the two branches of the Lutu family in accordance with the law.
We shall now proceed to decide the present case upon the law as it is now written and the evidence which has been introduced in this case.
The first question to be decided is whether or not Lafoa’i, the applicant, for the title of Lutu is eligible to hold this name under the present law of American Samoa. The court finds that the family tradition submitted by the applicant Lafoa’i contains a true and correct tradition of the Lutu family. Lafoa’i is the nephew of the late Lutu Sa*179muela. It is undisputed that Samuela had two brothers who held the title Lutu successively. Lafoa’i is the grandson of Lutu Peni, who held the Lutu title prior to Lutu Samuela. There is a dispute between the parties as to who first held the Lutu title, but that goes back into the far distant past and there is no way to check the family traditions except by hearsay. Lafoa’i is at present a sergeant in the Army of the United States. He has a pleasing personality and his service in the military forces has tended to qualify him for such a position.
However, Lafoa’i, the candidate selected by the family to apply for the name Lutu cannot hold this title. Section 80 of the Codification above quoted, specifically provides that no person who shall have been convicted of and sentenced for the crime of burglary shall be permitted to register a matai name, or be eligible to hold any office or position of honor, trust or profit under the Government of American Samoa. The applicant admits, and the records of the court show, that in 1931 Lafoa’i was convicted and sentenced in the District Court of American Samoa for the crime of burglary. Section 80 was enacted into law to protect and safeguard the people of American Samoa from having any person who has been convicted of certain serious crimes hold a matai title and rule over his family. This case shows how important it is for all the people in Samoa to teach and instruct their children to obey the law and become good citizens.
This leaves only the question of whether or not Simaile has met the requirements of the law and is entitled to hold the title Lutu. While the court has held that the decision in the case tried in 1905, is not applicable to the present contest because of a change in the law, and has held that the order passed in 1905 is no longer applicable to the Lutu title, yet the court is convinced from the records of family traditions in those cases that Simaile and his clan *180also are descendants from the Lutu family and have rights in the selection of the holder of this title. It is clear to the court that both sides in this case are descendants of the Lutu family and that the holder of the title may be selected from either faction. While it is true that Simaile also has a criminal record a careful investigation shows that he has never been convicted of any crime which would disqualify him from holding a title or position of trust or profit under the Government of American Samoa. His offenses have been of a classification known in the law as “misdemeanors” in contrast with those crimes set forth in Section 80 which are known as felonies. The Court is satisfied that Simaile has the forcefulness, character, personality and leadership to make a capable and efficient matai and that he has proven his hereditary right to hold a title in the Lutu family. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the application of Lafoa’i to register the matai name “Lutu” be and the same is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the application of Simaile to register the matai name “Lutu” be and the same is hereby granted.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost be and the same is hereby assessed in the sum of $60.00, one half to be paid by Lafoa’i and one half by Simaile, and shall be paid within five days from the date of this decree. Ten ($10.00) dollars of the amount taxed as costs shall be paid to Saipale for his services in acting as interpreter for two days in the High Court in this case.
Let a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485061/ | ORDER
On 15 May 1944, Manuita of Ta’u, Manu’a filed an application to register the matai name “Atiu”. The application was verified before District Judge Nua of Ta’u, Ma-nu’a, and forwarded to the Attorney General. Notice was *183duly posted on 22 May 1944. On 21 June, Siva of Ta’u, Manu’a, filed his objection to the registration of the name and claimed that he was entitled to hold this name himself.
On 21 February 1945, when this case was called for trial before the High Court, both parties being present, it was agreed in open court that the case would be continued until the following day in order that the family could have a further meeting and conference in an effort to agree upon one person to hold this title. When the case was again called for trial on Thursday, 22 February 1945, Siva of Ta’u, Manu’a and Manuita of Ta’u, Manu’a, both announced in open court that the family had held another meeting during the preceding evening and all parties to the controversy had agreed that Manuita of Ta’u, Manu’a should hold the matai name “Atiu” and Siva thereupon withdrew his objection and his application. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Manuita of Ta’u, Manu’a, is the true and lawful successor of the holder of the name “Atiu” and that he be allowed forthwith to register this name.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the court cost in this case be taxed in the sum of $30.00, $5.00 of which is taxed and shall be paid in equal parts by Manuita and Siva of Ta’u, Manu’a.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485062/ | ORDER
On the 8th day of November 1944, Tu’itu’i of Amouli village, filed his application with the Attorney General of American Samoa to register the matai name “Gogo”. Due notice of his application was posted on the bulletin board for a period of 30 days as required by law. On 6 December *1851944, Utu Samuelu, filed his objection to the registration of this name by Tu’itu’i. The case was called for trial before the High Court of American Samoa on 6 March 1945.
The evidence shows that in November 1906 one, Tinia, registered the matai name “Gogo” in the village of Amouli. Tinia held this title until his death, May 25, 1942. It therefore appears that there is a vacancy in this title in the village of Amouli which should be filled by some person selected by the Gogo family.
Utu of Amouli village who has objected to the registration of this name by Tu’itu’i testified on .the witness stand that he was not an applicant for this name himself but that he only appeared for the purpose of objecting to the registration of the name Gogo by the applicant Tu’itu’i. Therefore, the only question to be decided by this court is whether or not the applicant Tu’itu’i of Amouli is eligible and qualified to hold this name under the law as it is now written. It appears from the testimony that the majority of the members of the Gogo family are in favor of Tu’itu’i registering this name. However, that does not qualify him unless he can meet the other requirements of the law. Section 81, paragraph 1, subsection D, of the Codification of the Regulations and Orders for the Government of American Samoa provides that an applicant for a matai title “must be a descendant of a Samoan family and chosen by his family for the title.” The court holds that the words “chosen by his family for the title” means that the applicant must be a direct blood descendant of the family who holds the title in question. If an objection is made, one outside of the family cannot be registered to hold the matai name of that family.
The undisputed proof in this case shows that the applicant Tu’itu’i of Amouli is not a descendant by blood from the Gogo family.
*186Section 79, paragraph 4A, subsection 3 provides that the High Court shall be guided by “The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, .the male descendant shall prevail.”
In the case now in consideration the applicant has no hereditary right because neither his father nor his mother was a member of the Gogo family.
It is contended by Tu’itu’i of Amouli that his father at one time held the title Gogo by reason of the fact that his first wife was a member of that family. Proof is not sufficient to sustain this contention. Even if it were true that his father at one time held the title by reason of being the husband of a member of the family that would not qualify Tu’itu’i, unless, he himself were a descendant from the Gogo family.
A vacancy in the Gogo title in the village of Amouli now exists and it should be filled by the Gogo family. Now therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the application of Tu’itu’i of Amouli to register the matai name Gogo be and the same is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost be fixed in the sum of thirty dollars ($30.00), five dollars of which is to be paid to Saipale for his service as interpreter. One-half of the cost shall be paid by Utu Samuelu and one-half shall be paid by Tu’itu’i.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485063/ | ORDER
On 22 February 1944, a petition was filed with the Attorney General of American Samoa asking for the removal of the matai name Moti’a from the present holder Salesa. The petition is brought under the provision of Section 79, paragraph 7, which provides that whenever three-fourths of all the adult persons in the family desire a removal of a matai that they so state their desire to the Attorney General in writing setting forth their reasons. A notice to that effect containing all signatures shall be posted for 30 days in the usual manner and a hearing shall be had before the High Court upon the question whether or not the matai shall be removed.
This case was set for trial on 13 March 1945 and all parties notified. Upon the call of the case, a written statement was presented by Moti’a Salesa asking that he be permitted to resign as the holder of this name. The petition for removal is based upon the ground that the holder of this name has become too old and physically and mentally incompetent to do the work required of him as a matai of this family. In his letter of resignation, the matai himself *188states that he is crippled, old and unable to do the work and requests that he be allowed to resign. It appears to the court that it is to the best interest of this family that the matai be removed as the holder of the title Moti’a and that this office be declared vacant. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Moti’a Salesa be and he is hereby removed from holding the matai title Moti’a; that this office be declared vacant and his name removed from the records as the holder of this title.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the'court cost be fixed at $10.00 and shall be paid by petitioner.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this decree be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485113/ | DECISION
MORROW, Chief Justice.
This is a proceeding for the determination of the right to the succession to the matai name Vaotuua of Leone. Eveni filed his application with the Registrar of Titles on February 2, 1948 to be registered as the Vaotuua. Fega filed an objection to such proposed registration and became a candidate for the name on February 24, 1948. Hence this litigation.
The requirements for eligibility to a matai name are prescribed by Sec. 926 of the American Samoan Code. The evidence shows that Fega complies with all of such requirements. The second requirement is that' the candidate “must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title.” Candidate Eveni spent four months in Upolu during 1947. While he meets all the other requirements of Sec. 926 there is some question as to whether or not such four months’ absence from:,American Samoa broke his continuous residence here during the five years preceding the vacancy in the title. However, it is not necessary for the court to decide this point since, as will appear later, the court finds that it is required under Sec. 933 of the Code to award the title to Fega. - ■
Sec. 933 of the American Samoan Code which the court follows in deciding a- matai name case reads as follows:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed: .
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
*389Both Eveni and Fega filed petitions with the court purporting to be signed by various members of the Vaotuua family supporting their respective candidacies. There were 64 signers on Eveni’s petition and 66 on Fega’s. Although each candidate claimed that some of the signers on the other’s petition were not members of the family we nevertheless believe after a consideration of all the evidence that all the signers on both petitions were family members. Since there were 66 on Fega’s petition and 64 on Evehi’s we find that a majority.of the family wish Fega to be the matai thereof. Fega, therefore, prevails over Eveni on the first issue.
Fega reached the sixth grade in school. He speaks a little English. He has plantations from which he derives an income of about $400 a year. He worked for three years during the war as a plumber for the Navy. He rendered service to a former holder of the name Vaotuua and has already had experience as a matai, Fega being a matai name. Eveni reached the ninth grade in school. He speaks English. He is a carpenter and has plantations. His income from carpentering and from his plantations aggregate about a $1,000 a year. He was a former member of the Fita Fita Guard and Band but was discharged for drunkenness. He served a term in jail for forgery. He also rendered service to a former holder of the Vaotuua name. The court observed the personalities of both candidates during the hearing. It is our conclusion from our observations and from the evidence that Fega prevails over Eveni on the issue of “forcefulness, character, personality and capacity for leadership.”
Eveni is the grandson of Vaotuua Ioane. He has one fourth Vaotuua blood in his veins. Fega is the great-great-great-great grandson of Vaotuua Mátatele. He has one sixty-fourth Vaotuua blood in his veins. Eveni prevails over Fega on the issue of hereditary right.
*390The value of the holder of a matai name to the Government of American Samoa depends mostly upon the skill with which he performs his duties as matai. Fega has already had experience as matai. The majority of the family wish him to become the holder of the name. We believe that he will be able to weld the family together into a unit. We believe from the evidence that his capacity for leadership surpasses that of Eveni. His character is superior to that of Eveni. In view of all the evidence we find that he will be of more value to the Government as the holder of the name than will Eveni.
In view of our findings that Fega prevails over Eveni on the first, second and fourth issues, we award the matai name Vaotuua to Fega, subject to his resignation from the title Fega. A man cannot hold two matai titles at the same time. Kosi et al. v. Vilimu, No. 77-1948 (Am. Samoa).
Accordingly it is ORDERED, ADJUDGED AND DECREED that Fega shall be registered as the holder of the matai title Vaotuua of Leone upon his filing with the Registrar of Titles his resignation from the matai title Fega, such resignation to be filed within fifteen days from the date of this decision. The Registrar of Titles will be advised of this decree.
Court costs in the amount of $12.50 are hereby assessed against Eveni, the same to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487478/ | Submitted without argument or charge. Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485066/ | ORDER
On 21 May 1944, Léala Siaseli of Leone filed his application with the Attorney General of American Samoa to register the matai name Atofau. Notice of the application was posted on 5 June 1944. In due time, Kelemete of Leone filed his objection to the registration of this name by Léala and claimed that he, Kelemete, was entitled to register the name. Section 81 of Codification of the Regulations and Orders for the Government of American Samoa provides that before anyone can become eligible to hold a matai title the applicant “must be chosen by his family for the title.” Section 79, paragraph 4A sets forth a guide by which the court shall be governed in deciding a case of this kind. That paragraph reads as follows:
“4A. In the trial of Matai name cases the High Court shall be guided by the following in the priority listed:
*1931. The wish of the majority of the family.
2. The forcefulness, character, personality, and leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Léala testified that there was a meeting of the male branch of the family at which he was chosen to hold the title. Kelemete testified that there was a meeting of the family to which all of the members of the family were invited to attend in which he, Kelemete, was chosen for the title. The application of Léala Siaseli contains the endorsement of 19 names. Kelemete testified there were approximately thirty members of the family at the meeting when he was chosen to hold the title. While the evidence as to whom the majority favor is very unsatisfactory, it appears from the testimony that Kelemete has the majority on his side. The court further finds that Kelemete has the greater forcefulness, character, personality, and leadership to fit him to hold the title. Each one of the parties appears to be a member of the Atofau family and both have hereditary right to the title. The court further finds that it is to the best interest of the family and the Government of American Samoa to have Kelemete hold the title. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Kelemete of Leone be permitted to register the matai name ATOFAU and shall from this date hold that name.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at $25.00 one half to be paid by each party to the suit.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485067/ | On 20 June 1944, certain members of the Taufetee family filed a petition with the Attorney General of American Samoa asking for the removal of Taufetee Akeimo of Nuuuli as matai of the family. Due notice of the petition was posted on the bulletin board at the Administration Building and a copy thereof was sent to Taufetee Akeimo. He filed an answer denying all of the allegations in the petition. The case was set for trial on 14 March 1945. At the call of the case for trial, High Chief Levu of Nuuuli, requested the court to give the members of the family an opportunity to discuss this case further in an effort to see if an agreement could be reached. In view of the fact that High Chief Levu was one of the signers of the petition asking for the removal of Taufetee Akeimo, the court decided to take a recess in order to permit the members of the family to discuss this case in the courtroom. When the court reconvened, High Chief Levu announced that the family had agreed to withdraw the petition asking for the removal of Taufetee Akeimo and have the petition dismissed. Mulu of Nuuuli who filed the petition stated in open court that he also had agreed to withdraw the petition for re*195moval. Chief Leasio Gauta assiting [sic] Mulu also announced in open court that the family had agreed to have the petition for removal dismissed.
The court encourages all litigants to adjust their differences if they can do so, especially in cases of this kind where there is a dispute among the members of the same family. The court will therefore grant the request made by both sides of the members of this family in order that peace and harmony may be re-established among them. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the petition for the removal of Taufetee Akeimo of Nuuuli as matai of the Taufetee family be and the same is hereby dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at $10.00 one half of which shall be paid by the petitioners and one half by Taufetee Akeimo.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485068/ | *196ORDER
On 13 May 1944, Gatiso, matai of .the Gatiso family of Fagatogo village, Tutuila, American Samoa, madé application to register certain communal land which he claims belongs to the Gatiso family. Notice of his application to register title to this land was posted 30 May 1944. In response to the notice, Ifopo, matai of the Ifopo family in behalf of himself and the members of his family, objected to the registration of the title to this land by Gatiso and claimed that the land belonged to the Ifopo family.- The case was set for trial before the High Court of American Samoa on 28 March 1945, at which time both Gatiso, matai of the Gatiso family and Ifopo, matai of the Ifopo family were present in court. Upon the call of the case for trial, both claimants announced in open court that they had adjusted and settled their differences in regard to the title and ownership of the land, and each one of the parties requested that he be allowed to withdraw his application to register the title to this land in the name of his' family. The Court encourages litigants to settle and adjust their differences and the requests made by the two parties to this controversy will be granted.
The land in controversy is described as follows:
“Property lies on and alongside of the main water pipeline in Fagatogo Village. Beginning at a concrete pipe support alongside the road to the Hydro Electric Plant S 41 ft W and running thence to corner of school building, thence N 42 ft E to a-large clay rock, thence N 60 ft W to a rock beyond the vavae tree, thence S 70 ft E to a concrete pipe support alongside the road, thence S 80 ft W to point of beginning.”
Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the application of Gatiso, matai of the Gatiso family, Fagatogo village, Tutuila, American Samoa, to register the *197title of the land herein above described in the name of his family as communal land be and the same is hereby dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at $25.00, one half of which to be paid by each of the parties to the controversy.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this decree be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485069/ | ORDER
On 11 October 1944, Fanene (Filo) filed an application with the Attorney General of American Samoa to register certain land in the village of Pago Pago containing 44.50 acres known as LALOPUA. Notice of the application was duly posted on the bulletin board at the Administration Building for a period of sixty days as shown by the affidavit of the Marshal of the High Court.
*198On 13 October 1944, Taofi in behalf of himself and all the members of his family filed an objection to the registration of the title to the property by Fanene (Filo) upon the ground that he claimed title to the property by the Taofi family. On 1 November 1944, S. P. Mauga, matai of the Mauga family in behalf of himself and the members of the Mauga family, filed an objection to the registration of the title by Fanene (Filo) upon the ground that the request for registration by Fanene included part of the property owned by the Mauga family, and that the Mauga family had owned and been in possession of a large part of the land described for many years.
The case came on for trial before the High Court of American Samoa on 3 April 1945, at which time all claimants to the property appeared in court and participated in the trial. Fanene (Filo) was represented by Leauma. Mauga was represented by Saga’iga (Saipale) and Taofi acted as counsel for himself.
The evidence in the case shows that the Fanene family has been in actual possession of the land in dispute known as LALOPUA since the Government of American Samoa was organized. On September, 1906, the Governor of American Samoa enacted a law whereby all matais on the island of Tutuila were required to register their names with the Attorney General of American Samoa. In compliance with this law, the matai name, Fanene, was duly registered in October, 1906, thereby showing that the Fanene name is an old and established matai name on the island of Tutuila. The evidence further shows that the Fanene family has been in the open, notorious, hostile, adverse, actual possession of the land in dispute since the foundation of the Government of American Samoa. Fanene (Filo) does not claim title and ownership of the property in question for himself individually, but he claims the right to register the *199land as community property for the benefit of himself and the Fanene family.
Taofi claims that he, personally, holds the title to the land in dispute as an heir of a former holder of the Fanene title. He claims that his parents owned this property personally and individually and not as the matai of the Fanene family. He also testifies, however, that if he held the title Fanene that he would also hold this land as communal land for the benefit of the Fanene family. The record further shows that in 1932 there was a contest in the High Court of American Samoa as to who should hold the matai name Fanene. That contest was between Taofi of Pago Pago, Tavai of Pago Pago, Pulu of Pago Pago and Filo Foster of Pago Pago. The High Court of American Samoa decided that Filo Foster was entitled to hold the name Fanene and he was thereafter registered as the matai of the family and became known as Fanene Filo. In the order deciding that case, the High Court used the following language :
“On the basis of heredity it is the unanimous opinion and decision of the court that the matai name Fanene be given to Filo and that with this name he have all the rights and privileges thereof including the lands of the Fanene family as trustee for it.”
It does therefore appear that the claim of Taofi to the land in question is without foundation and that he is not entitled to this land.
Mauga rests his claim to the title to this property largely upon a decision of the High Court of American Samoa in 1904. The title of the case being Mauga Taufaasau v. Tali, Fanene Tili, Vaivao, Talali, Leauma, relative to land known as Siufaga in Pago Pago. A careful inspection of the record in that case will show that the land known as Siufaga does not include the land in dispute. At the very outset of that case, Mauga Taufaasau, testifies as follows:
*200“The land Siufaga is bounded by water course in Lalopua on the eastern side with Fanene and on the western side is bounded by Agagamoe on a water course also. That whole section of land is called Siufaga.”
It therefore appears that Mauga Taufaasau himself placed a boundary of his land as land being owned by Fanene thereby admitting the ownership of the land in question to be in the Fanene family. The claim, therefore, which is based on the order of the court in 1904 is without any merit whatsoever.
The overwhelming evidence in this case shows that the true owner of the property in question is the Fanene family and that Fanene Filo, as the matai of this family is entitled to register this land as communal land owned by him as the matai of the family.
The land to be registered in the name of Fanene (Filo) as matai of the Fanene family is described as follows :
“For Point of Beginning commence at a concrete monument set at the Northwest corner of the U.S. Naval Cemetery Property at Satala; run thence along the Northerly boundary of said U.S. Naval Cemetery Property S. 88°20' E. a distance of 139.44 feet to an •X’ cut in a large rock, said rock lying in a creek or drain; run thence in a Northerly direction following the meanderings of the aforementioned creek or drain and the Northerly prolongation of same, a distance of 1800 feet more or less to the top of a ridge; run thence in a Westerly direction along the top of the ridge a distance of 1000 feet; run thence in a Southerly direction along the Northerly prolongation of the centerline of a second Creek or drain and along the centerline of said creek or drain, a distance of 1800 feet more or less to a point; said point being the Northeasterly corner of land described in the Eegister of Native Titles, Volume I, pages 211 and 212, said land being owned by Vaivao; continue thence in a Southerly direction following the centerline of the creek or drain and along the Easterly boundary of the aforementioned Vaivao land, a distance of 200 feet more or less to a point where the centerline of said second creek or drain intersects the Northerly edge of Ocean Drive; run thence in an Easterly direction along the Northerly edge of Ocean Drive a distance of 850 feet more or less to an Iron Pin set *201on the Westerly boundary of the U.S. Naval Cemetery Property; run thence N. 18°15T0' E. along the Westerly Boundary of said Cemetery Property, a distance of 141.29 feet to the concrete monument at the Point of Beginning.
The land thus described contains 44.50 acres more or less. All bearings in the above description refer to the True Meridian.”
Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that Fanene (Filo) as the matai of the Fanene family be and he is hereby authorized to register the land described in the name of the Fanene family as communal land to be owned and held by him as the matai of that family.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all objection to the registration of the land by Fanene (Filo) as matai of the Fanene family filed by S. P. Mauga and Taofi be and they are hereby over-ruled.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost in this case be fixed at $50.00, one half of which shall be paid by S. P. Mauga and one half by Taofi.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be filed with the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485070/ | ORDER
On 17 June 1944, Te’o of Pago Pago filed his application with the Attorney General of American Samoa to register a certain tract of land in his name as matai of the Te’o family. On 17 July 1944, Pulu (Soloi) as matai of the Pulu family filed an objection to the registration to the title of this land in the name of Te’o and claimed that the description of the property included certain property owned by the Pulu family. On 17 April 1944, Te’o (Falepopo) matai of the Te’o family, wrote a letter addressed to the Attorney General wherein it was stated that Te’o had given Puia’i Sueuga the authority to survey the land in question and to have the property as his own. In other words, Te’o, desired to convey the property to his son Pu’ia’i Sueuga.
The case came on for trial before the High Court of American Samoa 4 April 1945 at which time Pulu (Soloi), Te’o, Pu’ia’i, all of the village of Pago Pago appeared in court. At the request of all parties, the court recessed for a period of one hour in order that a conference might be held to see if the case could be settled. Upon the reconvening of the court, it was announced that all parties had agreed to settle the controversy.
It is agreed by all the parties that the property involved is communal property owned by the matai of the Te’o family for the benefit of himself and the members of his fam*203ily. The matai of a family is prohibited from alienating land belonging to the family unless he first secures the approval of the Governor of American Samoa. The evident purpose of this law is to protect the families of the Samoan people in the possession of the ownership of communal property. Therefore, Te’o, as the matai of his family would have no legal right in this case to convey outright any part of the communal lands to any one member of the family without first securing the approval of the Governor of American Samoa.
After having the law explained to them by the Chief Justice, all parties agreed that the objection would be withdrawn and that this land should be registered in the name of Te’o as communal land for the benefit of himself and the members of the Te’o family. The court will approve the settlement thus made by the parties to this action.
The following is a description of the land to be registered in the name of Te’o as matai of the Te’o family:
“Property lies in the Island of Tutuila, American Samoa in the village of Pago Pago. For Point of reference commence at the southerly corner of the L.M.S. Church at the village of Pago Pago; run thence S. 1 degree 55' E. a distance of 103.9 feet to an iron pin at the Point of Beginning. From Point of Beginning thus described run N. 51 degree 04' W. a distance of 186.0 feet to an iron pin; run thence S. 40 degree 24' W. a distance of 187.6 feet to an iron pin; run thence S. 16 degree 05' E. a distance of 95.2 feet; run thence S. 84 degree 20' E. a distance of 213.2 feet to an iron pin set at the westerly edge of the existing main road to Fagasa and 11 feet from the center line of said road when measured at right angles thereto; run thence in a northerly direction along the edge of the aforementioned main road a distance of 138 feet more or less to a point which lies on the westerly edge of said main road and which bears S. 51 degree 04' E. from the iron pin at Point of Beginning; run thence N. 51 degree 04' W. a distance of 5 feet more or less to the Point of Beginning. The land described above contains 1.03 acres more or less.”
*204Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the application of Te’o as matai of the Te’o family to register the land herein described in his name as communal land to be held by him for the benefit of himself and the members of the Te’o family be and the same is hereby granted, and that the land shall be so registered.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this action be fixed at $25.00, one half of which shall be paid by Te’o and one half should be paid by Pulu.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of .this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485071/ | ORDER
On 24 November 1942, Ioana, Ioane, Keri, the children, heirs and next of kin of Lauina, deceased, filed an application with the Attorney General of American Samoa to register the title to a certain land in the village of Asu known *205as VAIMOA, and filed with their application a description and survey of the land made by A. Debelle September 22, 1920. Due notice of the application to register the title of this property was published by the Attorney General and in response to the notice, Lualemaga and Leasiolagi of Asu filed an objection on 14 December 1942 to the registration of the land in the name of the applicants. The objectors claim that the survey of the land included communal property known as Tupapa. On 28 September 1943, Lualemaga, Leasiolagi, Muagututi’a, Felesita, the last name representing the three applicants, signed an agreement to settle the case out of court. It appears that this agreement was never carried out and the case has not been settled.
The case was called for trial before the High Court of American Samoa on 4 April 1945, at which time all parties were present in court or represented by counsel. Leasiolagi appeared as counsel for Lualemaga, Tialavea appeared as counsel for Ioana, Ioane and Keri. As is usual in cases of this kind, the evidence in behalf of the contesting party is in direct conflict, each side claiming to be the owner of the property. In such cases it is always difficult for the court to decide which of ,the parties is the right owner of the property. However, in this case, there appears to be a former record in the archives of the Government which assists the court in deciding this case. The record is Number 2-1920 and it is entitled “In re Registration of Notice land in Village of Asu known as Vaimoa by Lauina”. There appears a further memorandum on the back of the folder which reads, “Filed for registration October 1, 1920. Paid $10.00 October 1, 1920, A. M. Noble Registrar.” There is in the record copy of a notice written in Samoan dated October 5, 1920 which is in the usual form posted at the Administration Building. A blueprint of the survey dated September 22, 1920 is also contained in the record and is the same survey now presented to the court by the applicants. While *206the record in this old case is not complete in some respects, there is sufficient record upon which the court can determine that this land was registered in 1920 in the name of Lauina. Upon this old record together with the testimony which has been produced in court, the court is of the opinion that the land in question belongs to the heirs of Lauina and they are true owners of the property.
The property referred to in this decree is described as follows:
“No. 1 Start at a point 244' due west (magnetic bearing) of the southernmost corner of the concrete, work outside the railings of the French Monument thence 63' S. 76 degrees 45 E. 40' N. 60 degrees 00 E. 142' N. 24 degrees 00 W. thence follow High Water Mark. 60' West thence 92' S 6 degrees 20 E. thence 43' S 11 degrees 30 E to Starting Point.
No. 2 Start from a point 67' S 65 degrees 10 E. From the Westernmost point of piece No. 1, and 12' east of a large Breadfruit tree, thence 30' N 66 degrees 20' E 68' S 34 degrees 30 E. 107 S 25 degrees 45 E. 67 N 69 degrees 50 E. Ill N 12 degrees 45 E. to starting point.”
Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the land known as YAIMOA, the survey of which has been proven in court made September 22, 1920, by A. Debelle be registered as the property in the names of Ioana, Ioane, Keri, as the heirs at law of Lauina.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this action be taxed at $25.00 and shall be paid by the objectors Lualemaga and Leasiolagi.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order by [sic] delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485072/ | ORDER
On 7 August 1944, Sose Vili made application to the Attorney General to register the title to certain land in the village of Leone, Tutuila, American Samoa. A description of the land by metes and bounds was included in her application. Notice of the application was posted at the bulletin board in the Administration Building. In response to the notice, objections were filed by Aifa’i of Leone, Luapo of Leone and Salave’a (N) of Leone. The case was tried before the High Court on 25 April 1945. The only contention made by Salave’a, one of the objectors, is that the boundary line between his land and the property described in the survey is not properly located. He contends that the survey over-laps on his property several feet. At the conclusion of the trial, the court instructed that a survey be made and a new boundary line established at the place contended for by Salave’a. This survey has been made and filed and it is now held to be the true and correct description of the land in controversy. It also establishes the true boundary line between the property of Salave’a and the property in dispute.
*208The following is the true and correct description of the boundary lines of the property:
“The land being described below lies in the village of Leone, Tutuila, American Samoa, and is owned by Sose Vili.
For Point of Reference, commence at the Southeasterly corner of the Leone Dispensary Building; run thence N. 83°47' E. a distance of 155.3 feet to an Iron Pin for Point of Beginning.
From Point of Beginning thus described run thence S. 66°42' E. a distance of 43.09 feet to an Iron Pin; run thence S. 29°00' W. a distance of 52.64 feet to an Iron Pin; run thence S. 32°00' W. crossing Main East-West Highway a distance of 57.78 feet to an Iron Pin; continue thence S. 32°00' W. a distance of 1.00 feet more or less, to the shore line at Leone Bay; run thence in a Northeasterly direction, following the shore line of said Leone Bay a distance of 50.00 feet more or less, to a point of the shore line which lies S. 37° 00' W. a distance of 4.6 feet more or less from said shore line; continue thence along the prolongation of this line crossing Main East-West Highway aforementioned, a distance of 35 feet more or less to an Iron Pin, run thence N. 24°00' E. a distance of 65.07 feet to the Iron Pin at Point of Beginning.
The above described land contains 0.120 acres more or less. Bearing’s refer to the Magnetic North and not to the True Meridian.”
Sose Vili claims that this land was surveyed by her grandfather, Vili McMoore on September 29, 1911, and she offers that survey as evidence of title in her grandfather. She claims that her grandfather acquired title to the land by reason of some indebtedness due him by the Atiga family, and that she inherited the property by a chain of title from her grandfather, Vili McMoore to her father, Vili Atiga and then to her, his daughter.
Aifa’i claims that the land belongs to her father, Leota (Fatu), deceased, and that she is entitled to register the land in the matai name Leota.
Luapo of Leone, claims that the land in question is communal land owned by the Atiga family and that he now holds the matai name and as such is entitled to register the land as communal land for the benefit of himself and his family.
*209It appears from the evidence that within the past twelve months, there has been a dispute among the members of the Atiga family. Sose Vili in consequence of the feeling existing filed her application to register this land in her name. Prior to her application the land was in the possession of the Atiga family as communal land and was being cleaned up and kept in a sanitary condition by one, Meke, under the direction of Atiga. Some of the witnesses testified that the land belongs to both Atiga family and the Leota family. But the court is of the opinion that the greater weight of the evidence establishes the fact that this land is communal land which has been owned and controlled for many years by the matai name Atiga, and that the land should be registered as communal land in this name. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the land above described be registered in the name of Atiga (Luapo) as communal land for the benefit of himself and the members of the Atiga family.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the application of Sose Vili and the objection of Aifa’i, be and they are hereby dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be taxed at $35.00, one half of which shall be paid by Sose Vili of Leone, and one half by Aifa’i of Leone, and that $10.00 of the cost so taxed shall be paid to A. Narruhn for his service in making the necessary survey to establish the boundary line above referred to.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485073/ | ORDER
On 15 August 1944, Tapuni Tuia and Faoa Tuia of the village of Vailoatai, filed an application in behalf of the Tuia family to register a certain land in that village known as “Vaisaili.” Notice of application to register the land was posted on 14 October 1944 in the name of Tapuni. Tapuni and Faoa are sister and brother. In response to the notice, Satele (Teutusi) filed an objection to the registration of the land in the name of Tapuni and claimed that he was entitled to register the land for the Satele family. The case came on for trial before the High Court on the 25th day of April 1945. Tapuni had as his counsel Sio and Satele acted as his own counsel. The evidence on the side of Tapuni is to the effect that the land in question is communal land which had at one time belonged to the matai *211name Tuiasina. Tapuni’s father, who held this matai name, died in the year 1939 leaving seven children. Since his death no member of Tapuni’s family has made application to register this matai name. There is some testimony that a successor to this name has been appointed. However, the undisputed testimony shows that no application to register this land has been made by the matai of the Tuiasina family. The individual members of a family have no right to register the title to communal land in their individual names. The title can be registered only in the name of the matai of the family. It further appears from the testimony of Vaaia that a former holder of this matai name gave the land as a gift to the London Missionary Society. Under this evidence, Tapuni would have no right to register the land in his name for the reason (a) that he is not the matai of the Tuiasina family and (b) that according to the testimony his family gave the property away and they do not own it any longer.
Satele, the objector, admits on the witness stand that he does not own the land and that he has no right to register it under the matai name Satele. His contention is that the land in question is owned by Faaua and that he, Satele, has been living on the land for almost twenty years by permission of Faaua. The question as to whether Faaua is entitled to register this land as communal land under the matai name Faaua is not before the court at this time and cannot be decided in this case.
It is evident from all the testimony that neither of the parties before the court is entitled ,to register the land in his name, and the court is compelled to dismiss the application of Tapuni and also the application of Satele to register the land in either name.
The following is a description of the land known as “Vaisaili”.
*212“For Point of Reference commence at the top of an anchor bolt set on the Northeasterly comer of the Southeast concrete foundation of the old Radar Tower at Vailoatai. Run thence S. 68°15' E. a distance of 382.7 feet to a galvanized iron pipe for Point of Beginning.
From Point of Beginning thus described, run thence N. 32°35' E. a distance of 252.6 feet to a second galvanized iron pipe; run thence S. 74°48' E. a distance of 178.35 feet to an iron pin; run thence S. 21°31' W. a distance of 250.55 feet to an iron pin set on the Northeasterly edge of the Feleti School — Vailoatai Road, run thence N. 72°51' W. a distance of 226.4 feet to the galvanized pipe at the Point of Beginning. Excepting from the land thus described that portion which lies within the Right-of-way of the Road between Vailoatai and the Feleti-School.
The land described above contains 1.142 acres more or less.”
Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the application of Tapuni Tuia of Vailoatai village to register the land described in his application in his name, be and the same is hereby dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the application of Satele (Teutusi) matai of the Satele family to register the land in his name, be and the same is hereby dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at $25.00, one half of which shall be paid by Tapuni Tuia and one half by Satele.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be forthwith delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485074/ | ORDER
This case comes before the Court upon a petition from certain members of the Mauga family asking that he be removed from holding the title Mauga. The original petition was filed 8 July 1940 and purports to have been signed *214by 146 members of the Mauga family. On 7 February 1945, the petitioners filed certain supplementary charges against the holder of the title and these charges were ordered to be an amendment to the original petition for removal. The case was called for trial before the High Court of American Samoa on 29 May 1945, at which time, Viavia, appeared for the petitioners and Ieti as his counsel. Fesaga’iga (Saipele) appeared as counsel for Mauga.
This case was brought into court under the provisions of Section 79, paragraph 7, of the Codification of the Regulations and Orders for the Government of American Samoa, which reads as follows:
“Whenever three-fourths of all adult persons in a family desire the removal of the matai and they so state their desires to the Attorney General in writing, setting forth their reasons, a notice to that effect, containing all signatures shall be posted for thirty days in the usual manner. A copy of such notice will be furnished to the matai who will be given a hearing on the subject before the High Court of American Samoa. If within a reasonable time no hearing has been requested by the matai, or if on hearing no sufficient reason has been shown to the Court why the matai should not be removed from office, such fact will be certified by the Court to the Attorney General and the Attorney General will remove the name of the matai from the records and the family shall be without a matai until another is selected in the usual manner.”
Notice of the petition for removal was published on 12 July 1940 by J. R. Wallace, Attorney General of American Samoa. On 8 August 1940, Mauga S. Palepoi, filed his answer to the charges in which he denied .that three-fourths of the family members had signed the petition, and also denied all charges made against him.
In the amended petition for removal, petitioners charged the respondent with three specific offenses. (1) false pretenses, (2) embezzlement, and (3) disorderly conduct.
In an effort to prove the first charge, false pretenses, petitioners called the witness Sami, who was duly *215sworn, but testified that the charges made against Mauga were not true. Letters alleged ,to have been written by Sami were then offered in evidence to contradict her. These letters were not admitted in evidence for the reason that the petitioners could not contradict their own witness. No further testimony was presented to sustain this charge.
Upon the second charge, embezzlement, a Contractors’ card and carbon copy of a letter were offered in evidence to prove that the respondent Mauga had been placed on some kind of “black list” by the Contractors. But, there was no evidence or suggestion on the card or in the letter to sustain the charge of embezzlement. The only complaint made against him on this record was that he was an unsatisfactory employee. Even if this card and letter were admitted in evidence, it would not sustain the charge of embezzlement.
Upon the third charge, disorderly conduct, one witness, Saaga, was produced to prove that while he was serving as a policeman for the Government of American Samoa he arrested Mauga for gambling. The evidence shows that no prosecution was instituted by the Attorney General and no record of conviction had been introduced. Gambling is a misdemeanor and even if proved would not be such a crime as would warrant the Court .to remove one from holding a matai title.
There is a total and complete lack of proof of any of the charges made in this petition against Mauga and he is entitled under the evidence to a full, complete and total vindication of the charges made against him.
In addition to this, the Court is satisfied from a study of the names and lists submitted by both sides, that there are not anything like three-fourths of the members of the family on the petition for removal. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the petition for the removal of Mauga (Palepoi) from hold*216ing the matai title, Mauga, be and the same is hereby dismissed
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be taxed at $25.00 and shall be paid by the petitioners.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485625/ | PER CURIAM:
*59We affirm the order of the Trial Division and we adopt its opinion of April 24, 1987.
Our attention was called during oral argument-to Section 2(b) of Secretarial Order No. 2657 as amended, which requires approval by the Secretary of the Interior of any legislation "affecting the powers of the legislature." We are n-c. persuaded that enactment of A.S.C.A. § 37.2030 fell into that category. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485075/ | ORDER
On 2 April 1945, Suli of Amouli village, filed his application with the Attorney General of American Samoa to register the matai name “Gogo”. Notice of his application was posted on the bulletin board at the Administration Building for thirty days as required by law. On 30 April 1945, Togafau of Amouli village, filed an objection to the registration of the matai name Gogo by Suli, and at the same time filed his claim to register the name Gogo.
*217The case was called for trial before the High Court of American Samoa on 6 June 1945, at which time, Suli and his counsel, Manaea, and Togafau and his counsel, Fuata, were present in court.
Upon the call of the case for trial, Togafau and his counsel Fuata stated in open court that Togafau desired to withdraw his objection and his application to register the name in favor of Suli. Togafau and his counsel agreed and consented in open court that Suli was entitled to register the matai name Gogo. The parties to the controversy having all agreed that Suli of Amouli village should be allowed to register the name, there is no further controversy before the court. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the matai name, Gogo, shall be forthwith registered in the name of Suli of Amouli village and he shall hereafter hold the matai name of the Gogo family.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at $25.00 and that the same shall be paid by the objector, Togafau of Amouli village.
:IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this order be delivered to the Attorney General of American Samoa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485076/ | ORDER
On 23 February 1945, the case of Levale of Ta’u, Manu’a, and Saveaera of Ta’u, Manu’a, v. Toaga of Ta’u, Manu’a, was tried in the High Court of American Samoa at Ta’u, Manu’a. A decision in the case was rendered and filed on 31 March 1945.
On 9 May 1945, Taliutafa filed a petition in the High Court which may be construed as a motion to make him a party to the case, to grant a new .trial and to reverse the former decision. A hearing on his petition was held before the High Court on 20 June 1945. Upon the call of the case for hearing, Taliutafa objected to having the case heard before the Chief Justice and District Judge Liufau and District Judge Malepeai upon the ground that they had tried the former case. This objection was overruled. He then requested the Court to grant him time to secure witnesses to sustain his claim of title to the land in question. This request was refused upon the ground that the Court was not at this time trying the question of title as decided in the former case.
The first ground of the claim of Taliutafa is that he is the matai of the Taliutafa family and as such should have been notified and made a party to the case when it was tried in Manu’a. The undisputed testimony both in the former case and at the present hearing is that Toaga was the *220representative of the members of this family in Manu’a and was agent of Taliutafa and was in charge of all the property on that island for the family. At the time of the trial she made no request for continuance of the case so that Taliutafa might be present but proceeded with the trial on its merits. The evidence further shows that Taliutafa had been notified that the case was tried in Manu’a before the decision was rendered and he made no effort to become a party to the suit until after the decision was filed. The law does not permit one to stand idly by and await the outcome of a lawsuit and if it goes against him make a complaint that he should have been notified. The evidence further shows that on August 9, 1934, Chris Young, who is the same person as Taliutafa in this case, entered a plea of guilty on the criminal side of the District Court of American Samoa to a charge of embezzlement and forgery and was sentenced to pay a fine of One Hundred Dollars and to make restitution of the amount he had embézzled. In 1938 after he was convicted, he sought to register the matai name Taliutafa which he now claims to hold but he did not disclose in his petition for registration his former conviction of the crime of embezzlement and forgery. Section 80 of the Codification of the Regulations and Orders for the Government of American Samoa reads as follows:
“Section 80. Ineligibility for Matai Title for Office Because of Crime.
1. No person who shall, after the enactment of this regulation, be convicted of and sentenced for murder, attempt to commit murder, rape, attempt to commit rape, burglary, robbery, larceny, embezzlement, false pretense, forgery, perjury, smuggling, selling intoxicating drink to natives, or infamous crime, or aiding or abetting therein, shall be eligible to hold any office or position of honor, trust, or profit under the Government of American Samoa, or be permitted to register a matai name; and a pardon granted such person shall not. restore his eligibility to such office or position, or his right to register a matai name, unless it is expressly so provided.”
It thus appears from the law that one who has been con*221victed of embezzlement and forgery is not eligible to register and hold a matai name and the attempted registration of. this name by Chris Young is void and of no effect. The attempted registration of a mati [sic] name by one who is not eligible to hold the title is void ab initio. The claim therefore that the petitioner as the matai of the family should have, been notified is without merit and cannot be sustained.
The petitioner further contends that there should have been a survey and a description of the land filed for registration of the title. This case was tried on the island of Manu’a where the land is located and where surveys are not available. In many land title cases in American Samoa, it is practically impossible to get accurate descriptions of land by metes and bounds. A certain tract of land is usually given a Samoan name and the boundaries are established by tradition. In the case now before the Court, the land involved was known as Avasi’i and the decision covered that particular tract of land only.
The remaining claims made by the- petitioner are that this land is communal property and that his family has been in possession of it for more than 45 years and that they hold title by adverse posesssion. All of these issues were decided in the original case and are fully covered in the decision already rendered.
The record in this case further shows that the petitioner, Taliutafa, has the same interest and right of title to the land in question as his sister Toaga. In the former trial, Toaga’s interest was representative of a class, she being one of the heirs who inherited the property from the mother. The petitioner is in the same class. There is a general rule of real estate law which provides that if a case is tried in a court of justice involving the claim of title by one child, that decision becomes the law of the case. A court could not consistently hold that one child was not *222entitled to an interest in property inherited from the parent and in the next case hold that another child of the same class was entitled to inherit an interest in the same property. Therefore, if this case should be tried again, the decisions would have to be the same.
All parties to this case have been given a fair and impartial trial and a final decision rendered by the High Court of American Samoa. That decision must stand as the law in this case. Now, therefore,
IT IS ORDERED, ADJUDGED AND DECREED that the petition filed by Taliutafa be and the same is hereby denied and overruled.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cost of this case be fixed at twenty-five ($25.00) dollars to be paid by the petitioner, Taliutafa. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485078/ | MORROW, Chief Justice.
Faumui applied to the Registrar of Titles to have the land Faletoa in the village of Faganeanea registered as his property. A survey was filed with the application. Faanau, Tauaiga and Taito, all of Faganeanea, each filed a separate objection to the registration of the land as Faumui property. Later Taito withdrew his objection in favor of Tauaiga.
At the hearing of the case it appeared that Faumui claimed that Faletoa was communal land of the Faumui family; Faanau claimed it as the communal land of the Faanau family; Taito, having withdrawn his objection, did not appear in the case; Tauaiga apparently claimed part of the land as his own individual property, and disclaimed ownership of the remainder.
The judges listened to the testimony with care. It has been transcribed and carefully studied.
*229To establish his claim Faumui testified that he was the senior matai of the family and that Faanau was his talking chief. He also testified that Tauaiga was a member of his family. In addition he stated that Faumui Tainuu was buried on the land. However, he did not claim this as of his own knowledge but stated that it was so told by his grandmother to his father and by his father to him. He claimed other Faumui people were buried on the land. He admitted that Tauaiga and his parents before him had occupied the part claimed by Tauaiga for about 40 years; that Tauaiga had lived on the land ever since he was born. He admitted also that Faanau’s children, viz. Nora, Pene and Fesoatai were occupying and using the land Faletoa at the present time. Faanu, a witness for Faumui, corroborated the testimony of Faumui in a number of respects. An examination of the record of matai titles shows the present Faumui is the first Faumui to register his name as a Faganeanea title. Said registration was only made June 30, 1936.
Faanau, who testified that he was 60 years old, denied that he was a member of Faumui’s family and claimed that there is no such title as Faumui in the village of Faganeanea; that the Faumui title belongs to Nuuuli. He denied that there were any Faumui people buried on the land in dispute. He also gave testimony showing that the land Faletoa has been occupied and used by the Faanau family since before the government was established in American Samoa in 1900. He denied that he had ever seen any Faumui people living on the land. He testified that the Faanau family had claimed Faletoa as their own communal family land ever since the government was established.
Faanau did not claim all of the land included in the survey. He testified that the survey included part of the land Moemalie which he said had been given by a former Faanau to a former Taito. The evidence was to the effect that a green house of the Marines given to Faumui is on the *230land Moemalie. While there was some conflict in the evidence as to when Moemalie was given to Taito, the court is of the opinion that the weight of the testimony favors the view that the gift was made prior to the establishment of the government. Maluia, 65 years old, testified that the gift occurred prior to the establishment of the government.
It should be stated that Faanau could not point out on the survey what part of the surveyed land was given to Taito.
Tauaiga is a young man. He claimed part of the surveyed land as his own individual property, but could not point out on the survey just what part he claimed. Taito is his matai. He claimed the land .through the right of his mother. In response to the question “Where did her authority come from?” Tauaiga replied “Nobody just my mother.” Thereupon he was asked: “She just assumed the authority?” to which he replied “Yes.” He said he got this information from his parents. And again he was asked: “Do you know where your mother’s authority came from?” to which the witness replied “From her own knowledge.”
The court is of the opinion, in view of the evidence, that the land offered for registration by Faumui is not Faumui property. It is true that a green house, described as the Marines’ house in the evidence, stands on the land and is occupied by Faumui people. This occupation of the house has necessarily been since the Marines, here during the war, had no further use for it. It seems that some commission (just what commission is not clear) representing the United States transferred the house ,to Faumui. But whatever commission or body it was, it obviously had no authority over the land on which the house was built, although it may have had authority with respect to the house itself. There was no evidence whatsoever that title to the land where the house is had ever passed to the United *231States, so it is obvious that no act of a commission, if there was such, representing the United States could deprive the owner of such land and pass title to it to Faumui. Nor was there any evidence that the commission, if such there was, ever attempted to pass title to the land to Faumui. The evidence related to transfer of the house only.
In view of all the evidence the Court is convinced that the land Faletoa and part of the land Moemalie are included in the survey. It is also convinced from the evidence that the Faanau family have been in possession of the land Faletoa since before the government was established in 1900; that during that period the Faanau family has used continuously Faletoa under a claim of ownership.
The extension of the jurisdiction of the United States to the Samoan Islands in 1900 did not affect private land .titles. I Hyde, International Law, P. 235; United States v. Percheman, 7 Peters 51, 86-87; Talo v. Poi, No. 16-1937; Ilaoa v. Toilolo, No. 5-1937.
In Talo v. Tavai, No. 14-1938 at P. 2 this court said:
“This Court has decided that the Statute of 21 James I, C. 16, passed by the English Parliament in 1623 limiting actions for the recovery of real property, subject to certain exceptions not here applicable, to twenty years is a part of the law of American Samoa. Talo v. Poi, No. 16-1937; Leapaga v. Taumua L., No. 8-1938. The result of adverse possession for twenty years is to divest the true owner of his title and to vest it in the adverse possessor. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 14 S.Ct. 458, 38 L.Ed. 279. ‘.. . in the United States and Canada the doctrine is almost universal that possession for the statutory period not only bars the remedy of the holder of the paper title but also extinguishes his title and vests title in fee in the adverse occupant.’ 2 Corpus Juris 251 citing in support thereof a multitude of cases from numerous federal and state courts. Referring to the interpretation of similar statutes in the various states limiting actions for the recovery of real property, Tiffany in his work on Real Property at pp. 997-8 says: ‘They have, however, with but few, if any, exceptions, been construed as operating to transfer the title to the wrongful possessor, enabling him to assert his ownership in an action of ejectment, or otherwise against *232the whole world, including the original owner, and as rendering necessary a legal conveyance in order to revest ownership- in the latter, after the lapse of the statutory period.’ This interpretation of the effect of the operation of the Statute of 21 James I, C. 16 has heretofore been approved by this Court, Talo v. Poi, No. 16-1937.”
It is clear to the court from the evidence that the possession of Faletoa by the Faanau family has been adverse to all others, at least since the establishment of the government; we find that such is still the property of Taito. Without doubt, prior to 1900 Samoan custom permitted one matai to give land to another matai. Any such gift would be governed by Samoan custom in force at the time and not by a law enacted after the establishment of the government.
We do not believe from the evidence that Tauaiga, a young man, has established his claim to the part of Moemalie included in the survey. He claims through his mother but the evidence does not show how she acquired title, if she did.
Nor do we think that Taito by withdrawing his objection in favor of Tauaiga could transfer any title which Taito, as a matai, might have in this part of Moemalie to Tauaiga, a young man. By Sec. 1216 of the Code “It is prohibited for any matai of a Samoan family who is, as such, in control of communal family lands or any part thereof, to alienate such family lands or any part thereof without written approval of the Governor of American Samoa.” There was no claim that the Governor ever gave his written approval to any alienation by Taito to Tauaiga.
No doubt Taito when he withdrew his objection in favor of Tauaiga did so under the mistaken notion that he could transfer the part of Moemalie included in the survey to Tauaiga. In view of this we think the withdrawal of Taito’s objection was ineffective.
While the court decides that no part of the land included in the survey is Faumui property, nevertheless it cannot *233direct that the part of the surveyed land called Faletoa be registered as the communal land of the Faanau, nor the remainder as the communal land of the Taito, since no witness, who was questioned about the matter, could point out on the survey just what part was the land Faletoa and what part was the part of the land Moemalie included in the survey.
The Registrar of Titles will be advised not to register any of the property included in the survey as the property of the Faumui.
Court costs in the sum of $25.00 are hereby assessed against Faumui, the sum to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485080/ | DECISION
MORROW, Chief Justice.
Aga of Fagaitua offered certain land claimed by him to be the land Vailaau, situated in the village of Auto, for registration as the communal land of the Aga family. The offer was accompanied by a survey of land purporting to be Vailaau and marked Exhibit “A” in the records of the case. The area as shown on the survey is 7.853 acres. Tialavea objected to the proposed registration, claiming that the land was the communal land of the Tialavea family. Hence this litigation. Both prior and subsequent to the hearing of the case on May 28, 1947 the court viewed the premises, the parties to the litigation being present.
It appeared that Aga based his claim in part at least, upon the decision of the High Court dated Feb. 3, 1910 in the case of Aga and Siliga, Plaintiffs v. Pele Savea and *239Tialavea, Defendants, No. 30-1907 in which case the court decreed that the land Vailaau was the property of Aga and Siliga. Siliga is a lesser matai in the Aga family.
The court has examined carefully the record in that case. It found in such record .a plat of land purporting to be Vailaau with an area of 13 acres. The plat contains a notation indicating that the plat was made from a survey made on July 12, 1911, more than a year .after the case was decided. The record contained no plat based upon a survey made prior to Feb. 3, 1910 when the decision in No. 30-1907 was handed down. The record in the case does contain a description by metes and bounds of the land Vailaau. It reads: “Vailaau. Commencing on the edge of bridge on Fagaiiua road thence N. 48° W. along stream distance 300 ft. thence S. 45° W. distance 268 ft. to a pig wall thence S. 40° E. distance 100 ft. to a cocoanut tree (x) thence S. 86° E. distance 375 ft. to the main road thence along main road N. 15° W. distance 93 ft. back to starting point. Containing 1.2 acres approx.”
Since it has always been customary to file a plat at the time land is offered for registration (which offer must of necessity precede a hearing in court concerning the land) it would appear no plat being found in the record that no plat of Vailaau was filed. The court has had the land records searched. The land Vailaau was never registered as the property of Aga as a result of the decision of Feb. 3, 1910. This would indicate also that no plat was filed prior to Feb. 3, 1910. If a plat of Vailaau had been filed prior to that date the land would have been registered in the land records. The fact that a plat based upon a survey made July 12, 1911 was found in the record would indicate also that there was no plat filed prior to Feb. 3, 1910, for if there had been there would be no point in having a survey of Vailaau niade on July 12, 1911 and then filing a plat based upon such survey.
*240The plat based upon the July 12, 1911 survey indicates that there was included in the surveyed land an .area of 13 acres. The description by metes and bounds, as found in the record of No. 7-1907, indicates that Vailaau contains only 1.2 acres approximately. It would appear, therefore, that when the 1911 survey was made an area almost 11 times as large as the land Vailaau was included in such survey. The fact that no registration of Vailaau was made is consistent with the fact that the 1911 survey shows an area 11 times as large as Vailaau contains according to the record of its metes and bounds as found in the record of No. 30-1907.
When the survey of Aug. 4, 1945 (Edhibit “A”) [sic] was made Aga tried to have the surveyor follow the old survey made on July 12, 1911. However, so much trouble developed between the Aga and Tialavea families because of this that Alec Narruhn, the surveyor, threatened to quit. The Tialavea people claimed that Aga was having their land back from the sea included in the survey. Nevertheless Narruhn did complete the survey but included in it only 7.853 acres which is the land offered for registration by Aga in the present case. Tialavea admitted that part of the land on the sea side was Aga property. At the hearing Tialavea claimed only the back part of the land.
Aga claimed all the land as shown in the Aug. 4, 1945 survey. He stated that prior to the war people from Fagaitua and Amaua planted their plantations on this land by permission of the Aga. During the war the land was occupied and used by the Marines for military purposes. Aga testified that after the Marines left in 1944 he stopped people from planting plantations and erecting their homes on the land. However, on its visits to the land the court observed that there were many plantations and one house on that part of the land claimed by Tialavea. The house was admittedly built by the Tialavea people and the evidence is quite clear that such plantations were put in by the Tialavea people, too.
*241Tologa who is about 70 years of age and the widow of Tialavea Valuvalu testified that the Tialavea people had had plantations on the disputed property from a time antedating the establishment of the government; that such plantations were put in without objection by the holder of the Aga title. While there is a conflict in the testimony as to the use and occupation of the property we think the weight of the testimony clearly shows that the part of the land back from the sea has been claimed, occupied and used by the Tialavea family or used by other people with their permission from a time antedating the establishment of the government, the period of the occupation by the Marines during the war excepted. And the testimony shows also that the eastern part of the surveyed land adjoining the highway has been claimed, occupied and used by the Aga people for many, many years (certainly more than twenty), or used by others with their permission, except during the period during the war when the Marines occupied such part. The court must and does give full recognition in this case to Samoan customs with respect to the acquisition of land titles.
In view of the testimony as a whole and what the court saw when it viewed the premises, the court is of the opinion, subject to the statement in the following paragraph that the eastern part of the land (as shown in the survey of Aug. 4, 1945) extending from the highway westward to a straight line passing through a point 25 feet west of the most westerly breadfruit tree (furthest from the highway and about 25 feet high) in the breadfruit plantation just west of the coconut plantation adjoining the highway, such straight line being drawn through such point and across the surveyed tract perpendicular to the particular western boundary which it meets, is the communal land of the Aga family, and that the remaining part of the land as surveyed *242on Aug. 4,1945 and shown in Exhibit “A” is the communal land of the Tialavea family.
However, if a re-survey of the land Vailaau as described by metes and bounds in the record of No. 30-1907 (such metes and bounds are set out on page 1 of this decision) should show that the western boundary of such re-surveyed land is westward of the straight line referred to in the next preceding paragraph, then the court is of the opinion that such part of such westward boundary as may lie within the Aug. 4, 1945 survey is the boundary line between the Aga and the Tialavea properties included in the Aug. 4, 1945 survey. The court upholds the decision in No. 30-1907.
The court ADJUDGES AND DECREES that the part of the land surveyed in Exhibit “A” (the survey of Aug. 4, 1945) lying east of the straight line referred to in the second paragraph next preceding or “such part of such westward boundary” referred to in the next preceding paragraph, whichever is the more westward, is the communal family land of Aga in his capacity as matai of the Aga family, while the remainder of such land included in Exhibit “A” is the communal family land of Tialavea in his capacity as matai of the Tialavea family.
The evidence showed that all the defendants are members of the Tialavea family.
Either, or both parties together, may have the necessary surveying done to establish the boundary line between the respective tracts. When such surveying has been done and the boundary line marked by the surveyor on Exhibit “A” in acccordance with this opinion, an opportunity will be afforded by the court to the parties to petition the court to order the land registered in accordance with law.
Inasmuch as Aga paid for having the survey of Aug. 4, 1945 made and Tialavea will receive much of the benefit *243therefrom, the court assesses court costs of $37.50 against Tialavea, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485082/ | DECISION
MORROW, Chief Justice.
Soliai of Nuuuli offered certain land, designated by him as Malae, in Nuuuli for registration as his property. Fanene of Nuuuli filed an objection to such proposed registration claiming that the land belonged to the Fanene title. Hence this litigation. Sec. 905A of the Code of American Samoa. Soliai’s offer was accompanied by a survey of the land showing that it lies north of the main highway leading from the Naval Station to Leone. Prior to the hearing the court viewed the premises in the presence of Soliai and representatives of Fanene.
At the hearing it appeared that Fanene did not claim all of the surveyed land as his property, but only the northern part. Fanene has a frame house part of which stands on the northeasterly part of the surveyed tract.
The evidence adduced at the hearing was conflicting. Soliai testified for himself as did Epenesa and Faamaligi, his *250aigas. The testimony for Soliai was to the effect that the Soliai family had occupied and used all the premises surveyed for more than 20 years under a claim of ownership; that such family had cut the copra from the land for many years and had had various kinds of plantations on it in addition.
The evidence in favor of Fanene was to the effect that the northern part of surveyed land claimed by Fanene had been occupied and used by members of his family for more than 20 years under a claim of ownership; that the Fanene family planted coconut and breadfruit trees in it and have been taking its crops for more than 20 years.
The evidence also showed that U.S. Marines were stationed on the northern part of the land during the war and that they cut down some of the coconut trees presumably to make room for Marine buildings. Soliai, after he had the land surveyed, put in a banana plantation in a part of the land from which the Marines had removed the coconuts. The Fanene family made no attempt to plant anything in the disputed area, preferring to await the decision of the court on the ownership of the property.
In the light of the evidence adduced at the hearing, of what we saw when we viewed the premises, of the Samoan customs relating to the acquisition of title to land and of the law governing acquisition of title to land through adverse possession, the Court finds that the quadrangular tract of land in the northern part of the surveyed tract and having metes and bounds as follows is the communal land of the Fanene family:
Beginning at the iron pin at the southwestern end of the boundary marked “N. 43°39' E., 70.55' ” (as shown on the survey of Malae filed by Soliai), thence N. 43°39' E. a distance of 70.55 ft.; thence S. 52°30' E. a distance of 76.02 ft.; thence S. 6°39' W., a distance of 68.75 ft.; thence N. 57°51' W., a distance of 119.36 ft. to the aforesaid iron pin at the place of beginning.
*251And the court further finds that the remainder of the surveyed land which lies south of such quadrangular tract is the communal land of the Soliai family.
The above boundary, viz. “N. 57°5T W., a distance of 119.36 ft.” was not marked on the survey, but has been calculated mathematically by the Court.
Whether the Fanene family acquired title to the quadrangular piece pursuant to Samoan customs by prior occupation and use under a claim of ownership; or by adverse possession for a period of 20 years makes no difference. At any rate it is our opinion, based upon the evidence and what we saw when we viewed the land, that the Fanene family (or the Marines by their license during the war) were in possession of the above quadrangular piece for at least 20 years prior to this action, and that such possession was open, notorious, active, visible, exclusive, continuous, hostile and under a claim of title. Such possession was adverse. See 2 Corpus Juris 50; Cook v. Clinton, 64 Mich. 309; Salavea v. Ilaoa, No. 2-1938 (Am.S.). Such adverse possession would vest title in the Fanene family. 2 Corpus Juris 251; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607. See also Talo of Pago Pago v. Tavai of Pago Pago, No. 14-1938 (Am.S.).
The Eegistrar of Titles will be advised to register the' above quadrangular piece of land as the communal land of the Fanene in his capacity as matai of the Fanene family; the remainder of the surveyed tract lying to the south of such quadrangular tract will be registered as the communal land of the Soliai in his capacity as matai of the Soliai family.
Inasmuch as the cost of the survey was paid by Soliai and part of such cost will inure to the benefit of Fanene, court costs in the amount of $12.50 are assessed against Fanene. The remainder of the court costs, amounting to $12.50 are hereby assessed against Soliai. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485084/ | DECISION
MORROW, Chief Justice.
M. Alapeti filed his application with the Registrar of Titles to have his name registered as the holder of the matai name Magalei. Maea, Uele, Letele Pouli and Faialaga each filed an objection to such proposed registration and became candidates respectively for the name. Later Uele and Faialaga withdrew their objections and ceased to be candidates.
At the hearing it appeared from the evidence that each of the three remaining candidates had at least 3k Samoan blood, had resided within American Samoa continuously for five years preceding the vacancy in the title Magalei, lived with Samoans as a Samoan and was born in American Samoa. We conclude, therefore, that each of them meets the requirements of Sec. 926 of the American Samoan Code so as to be eligible to succeed to a matai title.
Section 933 of the Code provides that:.
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forecefulness, [sic] character, personality arid capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
We shall first consider the wishes of the Magalei family with respect to each of the candidates. Each filed a petition *257signed by various members of the family in support of his candidacy. There were 87 names on the petition of Letele, 51 on Alapeti’s petition and 26 on Maea’s. On Alapeti’s petition there were names of 7 persons claimed by Maea not to be members of the Magalei family. Letele made a similar claim with respect to 9 names on the same petition. Alapeti claimed that the names of children 12 or 13 years of age on Maea’s petition should not be counted on the ground that children of that age are not old enough to have an intelligent wish as to who shall be the matai of the family. There are three such names on the petition. An examination of Alapeti’s petition fails to reveal a signer as young as 13 years. Letele also objected to three names on Maea’s petition, but on what ground it does not appear. Maea made no objection to any of the names on Letele’s petition. Alapeti objected to the signers on Letele’s petition of the age of 14 years or under. There are two signers who gave their ages as 14 on this petition and 12 who gave their age as 13 or under.
It is not necessary for the court to determine what age a child must have attained before it can have an intelligent wish as to who shall be the matai of the family. However, we think that a child 14 years of age is old enough to have an intelligent wish with respect to this matter. Such a child is prima facie capable of having a criminal intent. I Bishop, Cr. Law (9 Ed.) Sec. 368. “When the age of fourteen arrives, full criminal responsibility, at common law, attaches.” I Wharton, Crim. Law (12th Ed.) Sec. 86. At the common law a boy 14 years of age could consent to his marriage so that it would be binding. Madden on Domestic Relations, p. 28. And a girl 12 years of age was deemed old enough to consent to a binding marriage. Id. Certainly if, at the common law, a child 14 years of age is prima facie old enough to have a criminal intent and to enter into a valid marriage, then a child of such age, *258in the absence of evidence to the contrary, is of sufficient age to have an intelligent wish as to who shall be the matai of its family.
If it be admitted (we do not decide the matter) that a child of 13 or under is not capable of entertaining such a wish, there are still 75 eligible names on Letele’s petition. If we count all 26 names on Maea’s petition including those objected to and all 51 on Alapeti’s, including those objected to, Letele lacks only 2 of having as many backers for the name Magalei as the other two candidates put together. He has almost three times as many backers as Maea and almost a half more than Alapeti. Letele has a plurality of the family in his favor. If we count out the three children of 13 or under on Maea’s petition then Maea and Alapeti together have only 74 backers while the exclusion of the children of 13 or under on Letele’s petition leaves him with 75 names, or one more than the other two candidates put together.
It is apparent that Letele prevails over the other two candidates on the issue of the “wish of the majority or plurality of the family.”
We shall next consider the “forcefulness, character, personality and leadership” of the candidates.
With respect to his having been in jail for crime, Alapeti, who is 43 years of age, testified: “First I was in jail for forgery when I was a young kid and second I was in jail for holding a bush knife and then the wife of the son of Maea jerked and I hurt her hands.” Alapeti further testified that he sold taros and bananas at the Samoan market on the Naval Station and to the Samoan Hospital; that in May his sales amounted to $49.45 and in June to $75.65. Alapeti served the Magalei until his death in 1945. At various times Alapeti has worked as a laborer at the Naval Station, having shifted from one job to another. He got as far as the 6th grade in school. He has plantations.
*259Maea, who is 56 years old, has worked off and on for Public Works as a carpenter for 30 years. At the present time he is working his plantations. He testified: “No, I did not come over and sell taro in the market but I sent my daughter and son to sell taro. One of my daughters when she came back home gave me $10.00, another one $5.00 and my son gave me $7.00.” Maea got as far as the 6th grade in school. Apparently Maea had trouble with his matai Magalei Siausulu for he did not render service to such Magalei for over five years prior to the latter’s death. He did not furnish any food for his funeral “Because in those days” as he testified, “him and me were not a good mood.” Nor did he furnish a fine mat at the funeral of Magalei Siausulu. Maea has lived in Faleniu for 20 years. Faleniu is the village to which the Magalei title is attached. Undoubtedly the members of the Magalei family in Faleniu know Maea quite well. It is significant that only 5 of the 26 members of the family signing his petition are from Faleniu.
Letele, who is 48 years old, testified that he got to the 4th grade in school. He has plantations and sells taro and bananas. He was the leader of a gang which worked at the air-base during the war. Letele sells about $100.00 worth of bananas and taros to the Samoan Hospital each month, and an additional $20.00 to $30.00 worth at the market. He rendered service to the late Magalei Siausulu.
In view of the evidence it is the opinion of the court that Letele prevails over both Alapeti and Maea on the issue of “forcefulness, character, personality and leadership.”
The next matter for consideration is that of hereditary right. Alapeti is the blood son of Magalei Siausulu. Thus one half of his blood is Magalei blood. Maea is the grandson of Magalei Maea Faatafuna. One quarter of his blood is Magalei blood. Letele is the grandson of Magalei Tauai. One quarter of his blood is Magalei blood. It is clear that *260Alapeti prevails over .the other two candidates with respect to the issue of hereditary right.
The final matter for consideration under Sec. 933 of the Code is “The value of the holder of the Matai name to the Government of American Samoa.” It is in the interest of the Government that the affairs of each matai family be handled well. The better such affairs are handled the better it is for the Government. It is to the interest of each member of a Samoan family to have a good matai. The family members are in a good position to know who will be the best man for the place. They know the candidates and ordinarily know them well. If 50 members of a family want candidate A and only 25 members want candidate B, that in itself is a strong indication that A is the better man for the place. Of course it is not conclusive that A will be a better matai than B, but it is evidence that he will be, ;
Again the value of a man to his Government may be measured to a considerable extent by the quantity of goods produced by him. The country that has the greatest per capita production of goods is normally the best off economically. A man who produces $100.00 worth of taro a month is more valuable to his Government, everything else being equal, than the man who produces only $25.00 worth. Again a man who has committed crimes and been sent to jail, everything else being equal, is not as valuable to his Government as the man who has not. In the light of the evidence and the foregoing considerations, the court is of the opinion that Letele prevails over both Maea and Alapeti on the issue of “The value of the holder of the Matai name to the Government of American Samoa.”
It thus appears that Letele prevails over both Alapeti and Maea on the first, second and fourth issues while Alapeti prevails over Letele and Maea on the third issue.
In view of the law as set out in Sec. 933 of the Code and quoted above, it follows that Letele is entitled to be regis*261tered as the Magalei and the Registrar of Titles will be so advised.
Costs in the sum of $12.50 are hereby assessed against Alapeti and a like amount against Maea, the same to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485085/ | DECISION
MORROW, Chief Justice.
This case involves the right to the matai name Vaesau attached to Sailele Village. Siuea filed his application to be registered as the holder of the name on March 23, 1946. Fagafa filed an objection to the proposed registration and became a candidate for such name.
The evidence showed each of the candidates to be a full-blooded Samoan, to have been born in American Samoa, to have lived in American Samoa all of his life, to live with Samoans as a Samoan and to be a descendant of a Samoan family. Therefore each is eligible to succeed to a matai title. Section 926, American Samoan Code.
Section 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each of the candidates filed a petition purporting to be signed by various members of the Vaesau family in support of his candidacy. There was much conflict in the testimony as to whether many of the signers on .the respective *263petitions were members of the Vaesau family. It is not necessary .to review such testimony. Suffice it to say that the court is convinced therefrom and from the demeanor and appearance of the witnesses that a majority of the family desire Siuea to hold the title.
We think also that Siuea prevails over Fagafa (his name is now Aioletuga, but we shall refer to him as Fagafa since he filed his objection under that name) on the issue of forcefulness, character, personality and capacity for leadership. Fagafa is 59 years of age; Siuea is 37. The former is obviously in his declining years; the latter in the prime of life. From appearances and the evidence Siuea is better qualified to look after the affairs of the family than Fagafa. Each of the candidates produces mats, copra and Samoan curios. From these sources their incomes are about the same. Fagafa held the title Vaesau for 25 years, having been registered in 1919. He resigned from this title in 1944. In 1933 he took the title Fagafa of Alofau. He testified that as soon as he received the Fagafa title he left Sailele. In 1946 he was registered as the Aioletuga of Alofau. His testimony was to the effect that he had lived in Alofau for nine years. He further testified that he resigned the Vaesau title in 1945 (it was 1944 in fact) “Because the government wrote over to me that I hold two titles.”
Fagafa’s record as the holder of three matai titles already indicates that he is more concerned with holding titles than he is with the welfare of his matai family. Otherwise he would not have left Sailele for Alofau and continued to hold the Vaesau title for many years until the Government raised an objection. Section 934 of the Code, among other things provides that:
“Whenever a matai shall live away from his family for a period of six months or more, unless engaged in the performance of the duties of a public officer under the Government of American Samoa, or shall otherwise neglect to perform the duties of his office of matai, *264his County Chief and District Governor shall investigate the matter and report the same to the Governor of American Samoa with their recommendations as to whether or not the matai should be removed, and the Governor of American Samoa may in his discretion remove the said matai upon the recommendation of the County Chief and the District Governor of the County and District respectively in which the family of the matai resides.”
It is needless to say that a matai who lives away from his family cannot look after family matters as well as he can if he lives with it. If Fagafa was ready to leave Sailele once in quest of another title and to neglect the Vaesau family by living apart from it he might do the same thing over again if he should be awarded the Vaesau title in this case.
It is our conclusion in the light of all the evidence, that Siuea prevails over Fagafa on the issue of “forcefulness, character, personality and capacity for leadership.”
Siuea is the grandson of Vaesau Peni. He has one-quarter Vaesau blood in his veins. Fagafa’s blood father was Talauega. The latter did not hold the Vaesau title. Talauega’s blood father was Vaesau Tilaia. Fagafa is, therefore, a grandson of Vaesau Uilaia and has one-quarter Vaesau blood in his veins. As far as the issue of hereditary right is concerned Fagafa and Siuea stand on an equality.
The value of the holder of a matai name to the Government of American Samoa depends mostly upon the care and skill with which he looks after the affairs of his family. Fagafa has demonstrated his readiness to neglect the Vaesau family by leaving it for Alofau and a title there while continuing to hold the Vaesau title. It is not a good thing for the Government if a matai neglects his family. In the case of Maea et al. v. Alapeti, No. 20-1947 we said “Again the value of a man to his Government may be measured to a considerable extent by the quantity of goods produced by him. The country that has the greatest per capita production of goods is normally the best off econom*265ically.” As far as production of goods is concerned the candidates stand substantially on an equality. Both candidates pay their taxes. Everything considered, we conclude that Siuea will be more valuable to the Government of American Samoa as the holder of the Vaesau title than Fagafa will be.
In view of our findings that Siuea prevails over Fagafa on the first, second and fourth issues and stands on an equality with him with respect to the issue of hereditary right, the Registrar of Titles will be advised to register Siuea as the Vaesau of Sailele.
Costs in the sum of $25.00 are hereby assessed against Fagafa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485086/ | DECISION
MORROW, Chief Justice.
This case involves the right to the matai name Toilolo attached to the village of Malaeloa. Toto’a filed his application to be registered as the holder of the name on June 3, 1946. Faaalu filed her objection to such proposed registration on June 17, 1946 and became a candidate for such name.
The evidence showed each of the candidates to be a full-blooded Samoan, to have been born in American Samoa, lived in American Samoa all of his or her life, ,to live with Samoans as a Samoan and to be a descendant of a Samoan family. Each candidate is eligible, therefore, to succeed to a matai title. Section 926, American Samoan Code.
Section 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each candidate filed a petition purporting to be signed by various members of the Toilolo family in support of his or her candidacy. There was much evidence to support the view that most of the signers on the petition of Faaalu were not members of the Toilolo family. In fact only 13 of the signers on such petition indicated that they were from Malaeloa. Twenty-six indicated that they were from Iliili while the remainder indicated that they were from various other villages. Twenty-six on the petition of Toto’a are from Malaeloa; twenty-three from other villages. Four of the signers on Toto’a’s petition are under fourteen years *267of age. It is not necessary to review the evidence as to which candidate is supported by the majority of the family. Suffice it to say that in view of all the evidence we are convinced that a majority of the family (the four children on Toto’a’s petition being counted out) support Toto’a. We believe a very substantial number of the signers of Faaalu’s petition are not members of the family.
We think, too, that Toto’a prevails over Faaalu on the issue of forcefulness, character, personality and capacity for leadership. Toto’a has produced and sold about $650.00 worth of copra, taro, bananas, mats and Samoan curios so far this year. He also sold three pigs for $150.00. Faaalu testified that her income so far this year amounted to $35.00 to $40.00, but that she made from $500.00 to $600.00 last year. Faaalu reached the 6th grade at Atauloma School. Toto’a attained the 9th grade in the Marist Brothers School at Leone. Toto’a is 41 years of age; Faaalu, 47. Faaalu testified that she served five months in jail on an assault and battery charge. The court observed the personality of each of the candidates at the trial. From our observation and the evidence adduced, it is our conclusion that Toto’a prevails over Faaalu on the issue of forcefulness, character, personality and capacity for leadership.
On the issue of the best hereditary right, the evidence, while conflicting in some respects, indicates that Faaalu is .the great-great-great-granddaughter of Toilolo Leo’o and has 1Í32. Toilolo blood in her veins. Toto’a is the great grandson of Toilolo Nua and has % Toilolo blood in his veins. We conclude therefore, that Toto’a prevails over Faaalu on the issue of the best hereditary right.
The value of the holder of a matai name to the Government depends .to a considerable degree upon the skill with which he handles the affairs of his family, and this in turn depends mostly upon his character and capacity for leadership. Also the value of a matai to the Government is meas*268ured in no small degree by the quantity of goods produced by him. The country with the greatest per capita production of goods go hand in hand. The more goods there are produced the more there are to divide up among the people, and the higher the standard of living. It is our conclusion from the evidence that Toto’a is better qualified to look after the affairs of the Toilolo family; also that he is a greater economic asset to American Samoa than his rival. We think that Toto’a prevails over Faaalu on the issue of the value of the holder of the name to the Government of American Samoa.
In view of our findings, on the pertinent issues, the Registrar of Titles will be advised to register Toto’a as the Toilolo of Malaeloa.
Costs in the sum of $25.00 are hereby assessed against Faaalu, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485087/ | DECISION
MORROW, Chief Justice.
The complainants filed their petition in equity praying the court “to decree that the title to certain lands in Pago Pago known as ‘Vaitafe’, and registered under the name of Pisa of Pago Pago village (Volume 1 of Register of Native Titles — pages 175-176) be declared to be held by Pisa in trust for the complainants and that Pisa be ordered to draw up a deed transferring title to Molitui, title to be in Molitui by agreement between the complainants for her support and maintenance.” The petition alleges that “. . Í. Molitui’s mother, now deceased, and her brother Tivao and herself (from money obtained by outside work as a laundress)” contributed the purchase price for such land alleged to have been bought from Siautau Taumai.
The evidence was in serious conflict as to who made the purchase from Siautau Taumai. Pisa testified that he bought Vaitafe and furnished the entire purchase price himself. Witnesses for the complainants testified that complainant Tivao purchased it from Siautau Taumai as the agent to Molitui and her mother, with a consideration furnished by them.
*270That Pisa had the land registered as his property in 1924 is an undisputed fact. There is no claim that the registration proceedings were not according to law. Notice was duly posted. Anyone claiming an interest in the land adverse to Pisa could have filed an objection to the proposed registration and the High Court would have adjudicated the title.
There was no allegation or evidence that Pisa secured the registration through any fraud on his part.
The proceedings for registration of land titles in the United States under statutes designed to bring about the same result as our statute by rendering the title to registered certain land have been declared valid and not violative of the Constitution of the United States. See 53 Corpus Juris 1088-9. The Constitution of the United States protects the fundamental rights of the Samoan people. See opinion of Chief Justice Taft in Balzac v. Porto Rico, 258 U.S. 298 at pp. 312-3. Included among those fundamental rights is the right not to be deprived of life, liberty or property without due process of law. Id.
The proceeding for the registration of the land Vaitafe was in effect in rem. 53 Corpus Juris 1094. Notice of the proceeding was posted and all persons including Molitui and Tivao had 60 days after the posting of such notice to file objections to the proposed registration. Molitui, according to the evidence had actual notice of the proceedings. No objection was filed by anyone.
We conclude that the complainants were bound by the proceedings and cannot now question the title of Pisa to the land 23 years after the registration. If the title to Vaitafe can be questioned at this time, the titles to other registered lands can also be questioned. The security of registered land titles would be seriously weakened to the detriment of the Samoan people.
*271In view of our conclusion that the proceedings for the registration of the land Vaitafe as the property of Pisa were valid, the petition of the complainants is hereby dismissed.
Costs in the sum of $12.50 to be paid within 30 days are hereby assessed against Molitui and Tivao. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485089/ | DECISION
MORROW, Chief Justice.
Certain members of the Faagata family filed their petition for the removal of Faagata Sala’a as the matai of that family. They charged him with a number of acts of misconduct. Faagata Sala’a objected to the proposed removal. Hence this litigation.
The Faagata title is an old and respected title in the village of Fagatogo. The holder of the title should be a good leader; a man who is able to get the family to live together in peace and harmony. He should be a man commanding respect in the village.
The evidence convinces the court that Faagata Sala’a is not a good leader, that his conduct has brought disgrace to the title which he holds and that he has been unable, because of lack of capacity for leadership, to get his family .to live together in peace and harmony. The family has been badly split for several years. Faagata Sala’a has gotten drunk in public places, insulted the members of the family by referring to them as animals, chased a woman member of the family with a knife and been guilty of some acts of cruelty toward family members. The court records show *275that he was sent to Jail for 4 months in 1934 for assault; that he was sent to Jail in 1943 for a year for violation of Sec. 10, par. 5 of the then Code and fined $25.00 for disorderly conduct. In 1944 he was sent to Jail for 2 months for disorderly conduct and assault. In February 1946 he was given a fine of $50.00 or 60 days in Jail for disorderly conduct. In August 1946 he was sent to Jail for 60 days for disorderly conduct. He was removed as Pulenuu of Fagatogo village in February 1946, presumably, according to his own testimony, as a result of disorderly conduct. He became the matai of his family in 1942.
Such a record has naturally brought disgrace to the Faagata title. The family has had a feeling of shame when its matai has had to go to Jail for violating the law.
We think Faagata Sala’a’s conduct has been such as to warrant his removal as the matai of the Faagata family. Instead of demonstrating that capacity for leadership which a matai should have, he has demonstrated incapacity for leadership. That his family is split is the natural result. A matai cannot insult and mistreat members of his family and have their loyalty and respect. Nor can he have the respect of his family or of the community at large if it is necessary for him to go to Jail frequently for violating the law.
It is OKDERED that Faagata Sala’a’s name be removed from the matai register as the holder of the Faagata title. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485090/ | DECISION
MORROW, Chief Justice.
Complainant Joseph Willis filed his bill, designated a bill for accounting, praying for the determination of the title to certain lands in Tutuila, for an accounting, and for further relief. At the hearing the issues were narrowed by the parties to the question of title to the lands, Tuamauga (described in Volume 2, Register of Transfers, pages 235-239) and Faipa (described in Volume 1, Register of Native Titles, pages 86-90).
*278Alexander Willis, who died in January, 1943, was the father of complainant Joseph Willis and respondents Tony Willis, Josephine Willis Leiato, Dora Willis, Daisy Willis Aifili, Alexander Willis, Jr. Hereinafter in this opinion, such children of Alexander Willis will be referred to as the Willis children and Alexander Willis as Alex.
Alex was married twice; first to May Williamson, a half-European woman, and after her death to Falesau, who is the respondent Falesau Willis Asi. Alex was half European and half Samoan. Josephine Willis Leito is the daughter of Alex by his first wife and is half European. The Willis heirs, other than Josephine, are the children of Alex by his second wife Falesau, who is a full-blooded Samoan. Such children by Falesau are three-quarters Samoan and one-quarter European. Sometime after Alex’s death, Falesau, his widow, married respondent Asi, an Upolu chief.
Alex and George Danielson were half-brothers, each having the same mother, a Samoan woman, but different European fathers. Alex and George were adopted by Laulii, a full-blooded Samoan woman, who was the sister of their Samoan mother. Laulii had no children of her own.
Neither Tuamauga nor Faipa is freehold land. Since George is half-European, he could not acquire an interest in any land other than freehold. Sec. 1216, A. S. Code. Accordingly, at the hearing he disclaimed any interest in Tuamauga and Faipa. The testimony showed that the land Faipa was acquired by Alex and George from Teo as a result of furnishing beef and salmon at the feast incident to the installation of Teo as a Chief in Pago Pago; that being half-European they could not get it registered in their own names and for this reason gave it to Laulii, their foster-mother, who, being a full-blooded Samoan, could get it directly in her name. This land was transferred directly from Teo to Laulii by a deed dated Novem*279ber 23, 1906 and recorded in Volume 1, Register of Native Titles, pages 83-85. A consideration of $100.00 was recited in the deed. The land Tuamauga was conveyed on December 24, 1906 by Molioo and Taesali to Laulii by deed recorded in Volume 1, Register of Native Titles, pages 86-90.
Laulii died intestate in Upolu about 1926 leaving Alex and his half-brother George Danielson as her heirs. Alex claimed to have inherited the lands Tuamauga and Faipa from Laulii and the Willis children claim that they in turn inherited such lands from him. There was no evidence that Alex left a will. Falesau claims that Alex inherited both Tuamauga and Faipa from Laulii and that she is the owner of Tuamauga as the result of a conveyance in 1936 of that land from Alex to her, the deed being recorded in Volume 2, Register of Transfers, pages 235-239. Falesau claims ownership of Faipa also. Her testimony indicated that her claim is based upon the fact that she was Alex’s wife.
Since Alex was half European he did not become the owner of either Tuamauga or Faipa upon the death of his adoptive mother Laulii. Sec. 1216 of the A. S. Code prohibits the alienation of “any lands except freehold lands to any person who has less than three-quarters native blood.” As before stated these lands were not freehold property. Sec. 1215 of the Code provides that “As used in this Chapter ‘Alienation’ shall mean the sale, gift, exchange or any other method of disposal . . .” “Any other method of disposal” is broad enough to cover acquisition of land by inheritance or by will.
The conclusion is irresistible that Alex did not have title to either Tuamauga or Faipa. It follows, therefore, that the deed from Alex to Falesau of Tuamauga in 1936 did not pass the title of that property to her. A man cannot pass the title to property which he does not own by *280the device of making a deed to it. Nor did the deed acquire any validity because it was recorded. The purpose of recording a deed is to give notice to the public of the contents thereof. It is the deed that passes the title if any title is passed, not the recording. Since Alex did not and could not, under the law, own Faipa, Falesau obviously did not become owner of it because she was Alex’s wife. Nor did the Willis children inherit either piece of land from Alex. He did not own the lands. Consequently, they could not pass from him to them by inheritance. There was nothing to inherit.
The evidence shows that Alex occupied Tuamauga with his wife, Falesau, and family from about 1915 and that he continued so to do until his death in 1948. There was, however, evidence that the 1936 deed from Alex to Falesau was a mere blind so as to enable money to be borrowed on a mortgage of Tuamauga from the Bank of American Samoa. Alex, being half-European, could not give a valid mortgage while Falesau, being a full-blooded Samoan could if she owned the property. It is a significant fact that the deed from Alex to Falesau and Falesau’s mortgage to the bank were executed the same day. She testified that Alex handled the deed and the mortgage back in 1936 and that she did not “know anything about” the mortgage. Clearly she was just a straw-man in a transaction by which Alex got some money from the bank on mortgage.
It is not necessary for us to decide whether the deed was merely colorable. Whether it was, or not, makes no difference because Alex had no title to pass by deed.
Upon Alex’s death, the Willis children who were then living on Tuamauga with Alex and Falesau immediately claimed ownership and right of possession based upon a supposed inheritance from Alex. Falesau also claimed ownership and the right of possession, basing her claim upon.the deed of 1936 and also as she put it in her testi*281mony, “Because Alex feels that I should have all his properties.” The Willis heirs also claimed ownership of Faipa and the right of possession (subject to the right of the Marines to occupy it temporarily under the laws of war) upon Alex’s death. Falesau made similar claim in her own behalf.
On two occasions prior to the war some of Alex’s children had lived on Faipa and had plantations there with Alex and Falesau’s permission. We think that on these occasions they were mere licensees and acquired no interest in the land. At these times they made no claim to the ownership of Faipa. However, at the time the Marines moved into it shortly after the war started, Alex and Falesau had possession of it and had some plantations on it. The Marines built four houses on Faipa and damaged some of the vegetation. They were occupying Faipa when Alex died. After the Marines moved out, the Willis heirs and Falesau took possession of it, claiming title thereto.
Falesau and the Willis children (seven of them Falesau’s own children and Josephine, Alex’s daughter by his first wife) were living together and happy in the possession of Tuamauga and Faipa. They had plenty of land and a home. But this happiness was doomed to come to an end.
In 1944 the widow Falesau married Asi from Upolu. Asi then, tried to get money from the Willis children, but did not succeed. Shortly thereafter the children received a letter from their mother telling them to get out of the land Tuamauga within three weeks. Asi wrote the letter himself and Falesau signed it. The children appealed informally to certain government officials to protect them in the possession of their land and home. But protection was not forthcoming. We think such officials relied upon the record of the 1936 deed not knowing that Alex was half-European and that the deed passed no title to Falesau. The Willis children moved out leaving Tuamauga to Falesau and Asi, *282who took exclusive possession of it for some time. Later Asi received an invitation from the military authorities to leave Tutuila, and he and his wife left for Upolu.
Any rights of ownership which the Willis children and Falesau may have in Tuamauga and Faipa have not been derived through or from Alex because he could not lawfully be the owner of either property. Nevertheless, the fact is that Falesau and the heirs were peaceably in possession of both properties, Tuamauga upon the death of Alex and of Faipa sometime thereafter when the Marines moved out. Not all the children were in actual possession of Faipa but some of them lived on the property claiming ownership for all and their mother. All of them went to Faipa at times. We think from the evidence that in the eyes of the law Faipa was in the possession of all the children and Falesau as was Tuamauga.
“Possession itself is a species of title, of the lowest grade, it is true; yet it is good against all who cannot show a better, and by lapse of time may become, under the statute, perfect and indefeasable.” White, J., in McNeally v. Langan, 22 Ohio St. 32. We regard this as a correct statement of the law and applicable to this case. See also II Tiffany on Real Property (2nd ed.) Sec. 511; Kossell v. Rhoades, 272 Pa. 75; Brothers v. Hurdle, 32 N.C. 490. Of course the wrongful eviction of the children from Tuamauga by Falesau and Asi after their marriage did not deprive the children of any title they had by virtue of their possession together with Falesau, under claim of ownership.
It follows from our view of the facts in this case and the law applicable thereto that, as against all persons who cannot show a better title and as among the parties to this case, Joseph Willis, Robert Willis, Tony Willis, Paul Willis, Dora Willis, Daisy Willis Aifili, Alexander Willis, Jr. and Falesau Willis Asi are co-owners of the lands Tua*283mauga and Faipa. Josephine Willis Leiato, having half-European blood acquired no title in either tract, not being eligible to own non-freehold land. Sec. 1216, A. S. Code.
The issues having been narrowed by the parties to the single question of ownership of Tuamauga and Faipa, it is not strictly necessary for the court to discuss the matter of the claim for war damage to such lands. Nevertheless we think it well to do so in order to avoid possible future litigation.
Falesau had a deed to Tuamauga and was living on it at the time the damage occurred there. This was before Alex’s death. The deed gave her color of title. The children did not have possession of Tuamauga or claim any title thereto prior to Alex’s death, since they claimed through inheritance from him. Clearly the children had no right to share in money paid by the United States for damage to Tuamauga. And the same thing can be said with respect to the money paid for war damage on Faipa. The children did not claim any interest in Faipa prior to Alex’s death, nor did they have any possession prior thereto. The Marines put up the houses on Faipa and occupied it prior to Alex’s death. We think Falesau had the right in view of all the facts to collect for the war damage to the two properties.
Toa has a lease of Tuamauga from Falesau at a monthly rental of $40.00. At the hearing he stated that he was quite willing to surrender possession if he did not have to pay any more rent.
At the common law if two or more persons disseised another for their own use, the disseisors were joint tenants. I Tiffany on Eeal Property (2nd Ed.) page 635; Littleton, Sec. 278; Co. Littleton 181a. Subject to certain limitations not here applicable “so much of the common law of England as is suitable to conditions in American Samoa” is a part of the law of this U.S. possession. Sec. 1, A. S. *284Code. We do not believe that the doctrine of joint tenancy with the attendant right of survivorship as exists among joint tenants is suitable to conditions in American Samoa. Consequently, we hold that Falesau and her children by Alex are, as against all persons who cannot show a better title, tenants in common of the lands Tuamauga and Faipa and entitled to the possession of the same, subject to the -rights of Toa against Falesau growing out of her lease to him, as before stated.
Josephine Willis Leiato, the half-sister of the other seven children of Alex, being half-European, is not eligible to own a share in Tuamauga and Faipa. Nevertheless, her half-brothers and half-sisters together with Falesau may give her permission to occupy and use the properties along with themselves. The Court feels in view of all the circumstances that there may very well be a moral obligation though not a legal one, on their part to do so.
It is ORDERED, ADJUDGED AND DECREED 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 Faipa, 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.
Costs in the sum of $6.25 are hereby assessed against Joseph Willis and $43.75 against Falesau, such costs to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485091/ | DECISION
MORROW, Chief Justice.
Sami Mauga and Faafeu Mauga offered the land Vaipito in the village of Pago Pago for registration, filing a survey of such land with the Registrar of Titles. Tago Loe, Mauga S. P. and Teo each filed an objection to such proposed registration. Mauga S. P. claimed the land as communal property of the Mauga family and Teo claimed it as the communal land of the Teo family. Whether Tago Loe claimed it as his individually owned property or as communal land of his family is not clear. At the hearing however, Tago Loe claimed to own only that portion of the tract where he now has his European house and plantations.
We shall first take up the question of Teo’s title. Soliai, Teo’s principal witness, testified that in 1904 Mauga Moi-moi asked and received permission from Sitae, the mother of Soliai, to make use of Vaipito. Soliai says he heard the conversation 43 years ago. He was 18 years old then.
It was clear from the evidence that Vaipito has been occupied and used by various members of the Mauga family ever since 1906, if not before. Soliai testified that Mauga people have been on the land since 1904. Teo Falepopo, who has held the Teo title since 1906, was asked by Soliai on three different occasions to file an objection to the proposed registration but refused or failed to do so. Finally Soliai, not succeeding in getting Teo to do it, filed the ob*287jection himself in the name of Teo on the last day for filing objections.
The following is an excerpt from Teo’s testimony at the hearing:
“Q. When did you become the holder of the Teo title ?
A. 1906.
Q. Were the Mauga people at that time cultivating the land Vaipito, that is the part that is surveyed ?
A. Yes.
Q. Have they been cultivating it ever since ?
A. Yes.
Q. Does Mauga render service to you ?
A. No.
Q. He does not give you anything for the use of this land ?
A. No.
Q. Never has?
A. No.
Q. Did Mauga Moimoi ?
A. No.
Q. Do you go up to the land and get food whenever you want to ?
A. I ask Mauga first.
Q. Have you always asked Mauga before you went up to the land to get food ?
A. Yes about the crops of the land.
Q. You did not go on the land to get anything without asking Mauga?
A. Never.”
It is quite clear from Teo’s own testimony that through the years he has regarded Vaipito as Mauga property and not Teo family land. The Mauga people never rendered any service to the Teo for the use of the land and the Teo people always asked permission of Mauga to go on it and get food. Such conduct is not consistent with Mauga people being on the land for more than 40 years through permission from Sitae.
The evidence shows that Mauga Moimoi, who Soliai says procured the permission from Sitae, claimed Yaipito as his own. He willed it on a number of occasions. Also he *288used the land as his own and made declarations to various persons over the years after 1906 and prior to his death in 1935 that the land was his. Sami and Faafeu claim that Mauga Moimoi orally gave them the land in November, 1926. They and members of their families have had plantations on it ever since. Their occupation has been open, notorious, exclusive, actual and visible under a claim of ownership. The evidence shows that from at least as early as 1906 Mauga Moimoi occupied it under similar circumstances claiming it as his own. Such possession by Mauga Moimoi and following him by Sami and Faafeu was adverse to Teo if it ever was Teo property. See 2 Corpus Juris 50; II Tiffany on Real Property (2nd ed.) Secs. 500-504; Cook v. Clinton, 64 Mich. 309. Teo was aware of the Mauga claim for more .than 20 years.
In the case of Talo v. Tavai, No. 14-1938, this Court said:
“This Court has decided that the Statute of 21 James I, C. 16, passed by the English Parliament in 1628 limiting actions for the recovery of real property, subject to certain exceptions not here applicable, to twenty years is a part of the law of American Samoa. Talo v. Poi, No. 16-1937; Leapaga v. Taumua L., No. 8-1938. The result of adverse possession for twenty years is to divest the true owner of his title and to vest it in the adverse possessor. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 14 S.Ct. 458, 38 L.Ed. 279. ‘... in the United States and Canada the doctrine is almost universal that possession for the statutory period not only bars the remedy of the holder of the paper title but also extinguishes his title and vests title in fee in the adverse occupant.’ 2 C.J. 251 citing in support thereof a multitude of cases from numerous federal and state courts. Referring to the interpretation of similar statutes in the various states limiting actions for the recovery of real property, Tiffany in his work on Real Property at pp. 997-8 says: ‘They have, however, with but few, if any, exceptions, been construed as operating to transfer the title to the wrongful possessor, enabling him to assert his ownership in an action of ejectment, or otherwise against the whole world, including the original owner, and as rendering nec*289essary a legal conveyance in order to revest ownership in the latter, after the lapse of the statutory period.’ This interpretation of the effect of the operation of the Statute of 21 James I, C. 16 has heretofore been approved by this Court, Talo v. Poi, No. 16-1937.”
In view of the law and the evidence it is clear that if Vaipito ever was Teo property (and we have grave doubt that it ever was) the Teo has long since lost his title through adverse possession for 20 years. The period of adverse possession by Mauga Moimoi could, if necessary, be tacked to that of Sami and Faafau to make up the 20 years. II Tiffany on Real Property (2nd ed.) Sec. 508. We think that when Mauga Moimoi first began to use the land in 1904 or 1906, whichever it was, it was bushland owned by no one, and that Mauga acquired title to it under Samoan customs by openly occupying and using it, such occupation and use being accompanied by claim of ownership. The conduct of .the Teo, as he testified, in never going on the land to get things without permission of Mauga was an implied admission by Teo that the land was not his. A man does not ask another for permission to go on his own land. It is obvious to the Court that Vaipito is not Teo property and should not be registered as such.
The next question that arises is whether Mauga Moimoi, who had possession of the land and made use of it for about 20 years prior to November, 1926 (when Sami and Faafeu claim they were given the property by oral will of Mauga Moimoi) claimed to own it as an individual or as property of the Mauga title.
Pulu, who is 70 years of age, a matai in the Mauga family and familiar with its affairs and lands for many years, testified that Vaipito was the individual property of Mauga Moimoi. After a court recess he changed his testimony but we think he was right the first time. Mauga Moi-moi stated that the land was his own individual property on various occasions. He willed it to Sami and Faafeu on a *290number of occasions. He told people after willing it that it was Sami and Faafeu’s land.
We think that the evidence clearly preponderates in favor of the view that Mauga Moimoi claimed Vaipito as his own individual property before he willed it to Sami and Faafeu, and that he had possession of it for approximately 20 years before he made the first will in November 1926. Having so claimed and possessed it, we conclude that it is not the communal land of the Mauga title and should not be registered as such. It was Mauga Moimoi’s individual property.
Objector Tago is from Manua. He came to Tutuila about 1925. He is not a member of the Mauga family. Shortly after Tago came to Tutuila Mauga Moimoi gave him permission to use part of the land Vaipito. Pursuant to this permission Tago has occupied and used that part ever since, putting in various kinds of plantations including coconut and breadfruit. He has built three different houses on the land, his present house being of European style. He rendered service to Mauga Moimoi until the latter’s death in 1935 and since then to Mauga Palepoi. The testimony of Tago himself clearly indicates that Mauga Moimoi did not give a part of Vaipito to him outright, but merely gave him permission, or a license, .to use an acre or two of it. Tago in answer to the question “In other words Mauga Moimoi gave you permission to use his land in return for service over the years pursuant to Samoan custom, is that right?” replied “Yes.”
The license given to Tago by Mauga Moimoi and continued by Sami and Faafeu by acquiescence and implication became irrevocable after he put in coconut and breadfruit plantations on Vaipito and built a European house on it. 37 Corpus Juris 292. This is not a case of putting in taro and banana plantations only. “A license being *291a personal, non-assignable privilege ordinarily is terminated by the death of either the licensor or the licensee, unless, in the case of the death of the licensor, his heirs elect to continue it in force.” 37 Corpus Juris 289. Tago’s license will continue until his death unless sooner terminated by agreement or otherwise.
Sami and Faafeu are full-blooded Samoan women. Sami was adopted by Mauga Moimoi when she was a small child, the adoption being in accordance with Samoan customs. Mauga Moimoi was related by blood to Faafeu. When she was 15 years of age her father died and her mother went to Manua. She was then taken care of by Mauga Moimoi and his wife, who had no blood children of their own. Mauga Moimoi, as stated by Teo in his testimony, was “a good man, loyal and love to his family and also kind to people.” He frequently expressed an intention to provide for Sami and Faafeu. It was natural that he should and he stated that Vaipito belonged to Sami and Faafeu. He willed and gave Vaipito to them on a number of occasions. While Vaipito was not communal land, but Mauga Moimoi’s individually owned property as we hold, nevertheless he informed the family in contemplation of death, that he was giving Vaipito to Sami and Faafeu, and the family consented. Sami and Faafeu, being full-blooded Samoans, could take the property and we hold, in view of the evidence and the law, that they did.
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Vaipito be registered as the individual property of Sami Mauga and Faafeu Mauga, subject to the license of Tago Loe to continue to occupy and use that part of Vaipito which he is now using and occupying, during the remainder of his natural life unless such license be sooner terminated by agreement or otherwise according to law.
*292Costs in the amount of $50.00 are hereby assessed against Mauga, S. P. and Teo, each to pay $25.00 within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485092/ | DECISION
MORROW, Chief Justice.
The Fano title of Fagaalu being vacant due to the death of Fano Sailiata, Solinuu filed her application on September 25, 1946 to be registered as the Fano. Two days later Salilo filed his objection to such proposed registration and became a candidate for the name.
Section 926 of the A. S. Code prescribing the “Eligibility Requirements for Matai Title” reads as follows:
*293“No person not having all the following qualifications shall be eligible to succeed to any Matai title.
(a) Must be at least three-quarters Samoan blood.
(b) Must have resided continuously within the limits of American Samoa for five years either immediately preceding the vacancy of the title, or before he becomes eligible for the title.
(e) Must live with Samoans as a Samoan.
(d) Must be a descendant of a Samoan family and chosen by his family for the title.
(e) Must have been born on American soil, except persons born of parents of Samoan blood who are (1) inhabitants of American Samoa (2) but temporarily residing outside of American Samoa or engaged in foreign travel at date of birth of such child and (3) whose matai at any time within 13 years after the birth aforementioned files with the Kegistrar of Titles a sworn declaration that such child born outside of American Samoa now resides in American Samoa and desires such child to be an inhabitant of American Samoa.”
Counsel for the objector Salilo seemed to be under the impression that a woman was not eligible to become a matai. It should be noted that the above-quoted Sec. 926 does not prescribe that a matai shall be a man. This court does not make the law. It takes the law as it finds it in the Code, ascertains the facts from the evidence, applies the law to the facts and reaches its decision.
The evidence shows clearly that both candidates meet the requirements of Sec. 926 and are therefore eligible to succeed to a matai title.
Section 933 of the A. S. Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female de*294scendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
We shall now take up the matters which Sec. 933 requires the court to consider in determining which candidate is entitled to register a matai title.
Solinuu filed a petition with the court in support of her candidacy. It was signed by 158 persons purporting to be members of the Fano family. Salilo claimed that 74 of the signers were not such members. Salilo’s petition was signed by 44 persons, 7 of whom were claimed by Solinuu not to be Fano family members.
In view of the conflict in the testimony with respect to the above 74 persons, we do not believe that all of them are non-Fano people. However, if it be conceded for the sake of argument that such 74 are not members of the Fano family and that the objection by Solinuu to the 7 on Salilo’s petition is ill-founded, the undisputed fact remains that almost twice as many members of the family wish Solinuu to be the matai as wish Salilo. It follows therefore, that Solinuu prevails over Salilo on the issue of “The wish of the majority or plurality of the family.”
Solinuu has an income of $75.00 per month from her work in the mercantile establishment of her husband. Her monthly income from other sources is about $90.00. During the year 1947 Salilo, according to his own testimony, has had an income of only $5.00, and that from the sale of fish caught during June. Many Samoans sell taro, bananas, papayas, coconuts and other products of their plantations. Salilo sells nothing of this kind. He makes no mats or Samoan curios for sale to the Department of Native Industry. He has coconut plantations. Instead of producing copra from the nuts, he lets them rot. A good leader must set *295a good example to the people he seeks to lead. That is the first principle of good leadership. The Fano family is large. It is to the interest of the Government that it have a matai qualified to handle the affairs of the family. The Court observed both candidates at the hearing. We are convinced that Solinuu prevails over Salilo on the issue of “forcefulness, character, personality and capacity for leadership.”
The evidence showed that Salilo is the son of Fano Sailiata who descended from Fano Faagai through the female line. Solinuu is the daughter of Fano Tui who was the son of Fano Faagai. Each candidate has fifty per cent Fano blood. In view of the evidence on the issue of hereditary right, we cannot say that Salilo’s hereditary right is superior to that of Solinuu. We think the candidates stand on an equal footing with respect to this issue.
This Court said in the case of Fagafa of Alofau v. Siuea of Sailele, No. 24-1947, “The value of the holder of a matai name to the Government of American Samoa depends mostly upon the care and skill with which he looks after the affairs of his family.” We are convinced in view of Solinuu’s capacity for leadership, her age, experience and the standing she has in her family because of her many acts of kindness over the years, that she prevails over Salilo on the issue of the “value of the holder of the Matai name to the Government of American Samoa.” Furthermore, Solinuu has an income of more than $150.00 per month. Salilo has had an income of only $5.00 during 1947. It is obvious that Solinuu is in a much better position to look after the needs of a family member than is Salilo. This factor is an important one to the Government.
In view of our conclusion that Solinuu prevails over Salilo on the first, second and fourth issues and stands on the same footing as Salilo with respect to the issue of heredi*296tary right, the law requires the court to award the title Fano to candidate Solinuu.
Accordingly, the Registrar of Titles will be advised to register Solinuu as the holder of the Matai name Fano of Fagaalu.
Costs in the sum of $25.00 are hereby assessed against Salilo, the same to be paid within 20 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485093/ | DECISION
MORROW, Chief Justice.
This is a proceeding to determine the succession to the matai name Tali of Pago Pago. Puipui filed his application to be registered as the matai on September 12, 1946. Fuamaila filed an objection on September 21, 1946 and became a candidate for the name.
*297The evidence showed that each candidate is a full-blooded Samoan, born in American Samoa, has resided in American Samoa continuously more than five years preceding the vacancy in the title Tali, lives with Samoans as a Samoan, and is a descendant of a Samoan family. Each candidate is therefore eligible to succeed to a matai title. Sec. 926 A. S. Code.
Sec. 933 of the Code prescribes that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each candidate filed a petition purporting to be signed by various members of the Tali family in support of his candidacy. There were 75 signers on Puipui’s petition and 52 on Fuamaila’s. There were two children 12 years of age on Puipui’s and one 13 years of age on Fuamaila’s. Fuamaila objected to 16 names on Puipui’s petition, claiming they were not members of the Tali family. Puipui objected to 5 names on Fuamaila’s petition but admitted that as to 3 of them, he did not know whether they were family members or not.
Both candidates have had 20 years of active service in the Fita Fita Guard. Each reached the 6th grade in school. Both have plantations and have rendered service to the Tali in the past. Puipui is 63 years of age; a strong vigorous man in the prime of life. The court observed both candidates during the trial. We believe from our observation and the evidence adduced that Fuamaila prevails over Pui*298pui on the issue of “forcefulness, character, personality and capacity for leadership.” Fuamaila speaks English quite well which is an asset to a matai and helpful to him in handling the affairs of his family.
On the issue of hereditary right, Fuamaila prevails over Puipui. Fuamaila is the grandson of Tali Laau and has V4 Tali blood in his veins. Puipui is the great grandson of Tali Vaivai, and has 1k Tali blood in his veins. Fuamaila’s second cousin Tali Filiga held the title.
We said in the case of Fagafa v. Siuea, No. 24-1947 that “the value of the holder of a matai name to the Government of American Samoa depends mostly upon the care and skill with which he looks after the affairs of the family.” That in turn depends in ho small measure upon his personality, character, and capacity for leadership. We are convinced from the evidence that Fuamaila, particularly since he is 20 years younger than Puipui, in the prime of life, and speaks English, is better qualified to look after the affairs of the Tali family than is Puipui; that he will do a better job as the head of the family and consequently will be of the most value to the Government of American Samoa. Furthermore Fuamaila has had experience as a matai since he is now the Leatulua.
In view of our findings that Fuamaila prevails over Puipui on the issue of “forcefulness, character, personality and capacity for leadership,” on the issue of “best hereditary right” and also on the issue of “the value of the holder of the Matai name to the Government of American Samoa” the law requires the Court to award the title Tali to Fuamaila.
The Registrar of Titles will be advised to register Fuamaila as the Tali of Pago Pago.
Costs in the sum of $25.00 are hereby assessed against Puipui, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485095/ | DECISION
MORROW, Chief Justice.
Aumavae offered certain land in Leone for registration *307as the property of the Aumavae title, such offer being accompanied by a survey of such land. The land included in the survey is a rectangular piece lying south of the L. M. S. missionary’s house at Fagalele school and bounded on the south (as shown on the survey) by an “old wire fence” together with a small substantially triangular piece lying south of the “old wire fence”. The rectangular piece is a part of the campus of the Fagalele school and has been occupied and used by such school for more than 50 years. The triangular piece has coconut trees and growing crops on it. The Court viewed the premises on December 15,1947 in the presence of Aumavae, Mr. Hoadley and Pita Uo.
The London Missionary Society, through Mr. Hoadley, objected to the proposed registration as did the Augafa family through E. M. Moefaauo.
At the hearing it appeared that Aumavae (he so testified) did not claim the land as the property of the Aumavae title, but as the property of .the Ormsby heirs, the father of whom had married into the Aumavae family and died in 1888. We shall therefore treat the offer to register as having been made by Aumavae in behalf of the Ormsby heirs.
Aumave the proponent, who is 66 years old and has lived in Leone all of his life, testified that the part of the surveyed land lying between the Missionary’s house and the “old wire fence” had “been cleaned up by Fagalele school for 50 years or ever since the house was built.” He also testified that “no one of the Ormsby heirs or representatives ever lived on this land.. . . There were no representatives or heirs of Ormsby that occupied this place.” It should be stated that Fagalele school is operated by the London Missionary Society.
Aumavae also testified that the heirs of Augafa have been making use of the triangular piece of land between the “old wire fence” and the southernmost boundary as shown on the survey for “about 50 years.”
*308Leoso, who is 66 years old and a life long resident of Leone, except for some years he spent in school in Upolu while a boy, testified that Fagalele school had occupied the part of the surveyed land between the missionary’s house and the old wire fence since before the government was established in Tutuila. His testimony was also to .the effect that he had personal knowledge that the heirs of the Augafa have been making use of the aforementioned triangular piece as shown on the survey for more than 50 years.
Pastor Elisara’s testimony indicated that he had been familiar with the land offered for registration ever since 1905 when he became a student at Fagalele School and that since that time Fagalele School had made use of the part of the surveyed land between .the missionary’s house and the old wire fence and that the heirs of the Augafa had during the same time occupied and used the triangular piece. Faamaligi, who attended Fagalele school for two years beginning in 1901, corroborated pastor Elisara’s testimony.
In support of its claim of title to the part of the surveyed land lying between the missionary’s house and the “old wire fence,” the London Missionary Society relied upon Court Grant No. 871 recorded in Vol. 1, Register of Court Grants at pages 56-57, a deed from Maiava dated 11 February 1919 and recorded in Vol. 2, Register of Transfers at pages 60-62 and a deed from Atofau dated 9 September 1914 and recorded in Vol. 1, Register of Misselaneous [sic] at pages 350-351.
In view of the testimony of the witnesses including Aumavae himself it is not necessary for the Court to consider the effect of the above Court Grant and deeds as to vesting title in the London Missionary Society of the surveyed land lying between the Missionary’s house and the “old wire fence.” The evidence shows without any contradiction that such land has been openly occupied and used by Fagalele School for more than 20 years under a claim of ownership. *309We believe from the uneontradicted evidence that such occupation and usé has been continuous for a period antedating the establishment of the Government in Tutuila in 1900. Regardless of the Court Grant and deeds above referred to this part of surveyed land is the property of the London Missionary Society through operation of the law of adverse possession. Actions for the recovery of real property are outlawed after twenty years. Sec. 349(4) of the A. S. Code as amended by Amendment No. 13-1947. See also Tago v. Tavai, No. 14-1938; Talo v. Poi, No. 16-1937; Tago Loe et al. v. Sami and Fauafeu Manga, No. 33-1947.
The evidence also shows through application of the law of adverse possession that the triangular piece of land lying between the “old wire fence” and the southernmost boundary as shown on the survey is the property of the Augafa family. It clearly appears from the evidence that this piece of land has been openly used and occupied under a claim of ownership by the Augafa family for a period antedating the establishment of the Government in Tutuila. Such occupation and use has been continuous.
It is therefore ORDERED, ADJUDGED AND DECREED that the part of the surveyed land lying between the Missionary’s house and the “old wire fence” as shown on the survey be registered as the property of the London Missionary Society; and that the triangular piece of land lying between such wire fence and the southernmost boundary as shown on the survey be registered as the communal land of the Augafa family.
Since the London Missionary Society and the Augafa family will receive the benefit of the expense of making the survey for Aumavae, it is equitable that they should pay the costs. Such costs in the sum of $6.25 are hereby assessed against the London Missionary Society and a like sum against the Augafa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485096/ | DECISION
MORROW, Chief Justice.
A. Vaaitautia offered certain land in Aua for registration as the communal land of the Vaaitautia family. The offer was accompanied by a survey of the land and filed *311with the Registrar of Titles. Sauafea Moelata filed an objection to the proposed registration, claiming the surveyed land as his own individual property.
The evidence clearly indicated that the land has had plantations on it ever since about 1926 or 1927. There is a dispute as to whether it had plantations on it prior to that time. The objector introduced evidence to the effect that he and his three brothers and his brother-in-law, Pastor Wiki, began to cut trees on the land in 1926 to clear it for plantations, and that it was bush prior thereto. In 1926 the objector was 14 years of age; Rose, his surviving older brother was 18. One brother is dead. The other brother is younger than Sauafea and must have been under 14 in 1926.
Unutoa, 70 years of age, testified that the land was cleared from bush by Tufaga and himself and others, who had died long ago, and that the clearing occurred before the establishment of the Government in 1900. Uli, 54, likewise testified that it was cleared before the Government was established. Tufaga, who appeared to the judges to be at least 70 years of age and more likely 80, testified that he was 28 years old when the land was cleared from bush. Despite the testimony of Sauafea and his witnesses, we think the testimony preponderates in favor of the view that the land was cleared either before the Government was established or shortly thereafter. While Sauafea and his brothers and Pastor Wiki may have cut some small trees on the land in 1926-7 we are confident that it was not bush land at that time; that any trees cut in 1926 were second growth.
In view of all the evidence, although some of it is contradictory, we are convinced that in 1926 or 1927 when the objector, his brothers and Pastor Wiki, entered upon it, the land was already under Samoan customs the property of the title Tufaga, and we so find.
*312The next question that arises is whether the Tufaga has lost the ownership of the land through adverse possession by Sauafea and his brothers and Pastor Wiki for 20 years.
Tufaga testified that he gave Pastor Wiki permission to enter upon the land and put in plantations, and that he planted crops pursuant to the permission. Pastor Wiki, who was a married man in 1926, appears to have been the leader in entering upon the land. Certainly it was not the objector who was only 14 years old, or the objector’s younger brother, nor does it seem likely that Rose'who was only 18 at the time would be the leader. How old the brother who died was does not appear.
It is our conclusion from the evidence that Pastor Wiki was given permission by Tufaga to enter upon the land in 1926 or 1927 and put in plantations, and that he entered pursuant to such permission. What would be more natural than that his young brother-in-law, the objector then 14 or 15 years of age, should help him get the land ready for plantations and to help him put them in along with the other brothers? That a 14- or 15-year-old boy, as the objector was, should enter upon the land and claim it as his own so as to start the 20-year period of adverse possession running seems highly improbable. We do not believe from the evidence, circumstantial and direct, that he did. We think that Pastor Wiki got permission from Tufaga to enter and that the objector and his brothers ,(brothers-in-law of the Pastor) went with the Pastor to the land to help the latter put in his plantations.
Tufaga testified that “. . . after Wiki asked permission and his plantations was on the land about 8 years and then Liufau, Wiki’s father-in-law, asked permission that he wanted to plant bananas on this land and I said alright and bananas start to bearing and all these people make use of it.” “Q. Whom do you refer to as all these people? A. The sons of Liufau Mulitalo, that is Sauafea and his brothers *313and sisters. I stop them from going on this land but they continued going up there.”
The earliest date Sauafea claims to have gone on the land with his brothers and Pastor Wiki was 1926. Eight years thereafter would make 1934. Conceding .that Sauafea’s possession, if he had such in 1934, did become adverse then, he could not become the owner through operation of the doctrine of adverse possession until 1954. Pastor Wiki left Aua for Upolu. Tufaga’s testimony would indicate that he did not leave prior to 1934. The .testimony of other witnesses indicated that he may have left as early as 1928 and ceased using the land for his plantations in that year. We think from the evidence that the possession until Wiki’s departure for Upolu was pursuant to the permission of Tufaga.
Conceding that Wiki did cease using the land in 1928 (and that would be the view most favorable to the objector) the required 20-year period of adverse possession, if Sauafea did have such as early as 1928, would not end until 1948. Vaaitautia offered the land for registration on May 1, 1947. The objector filed his objection on May 26, 1947. The filing of the objection marked the commencement of this action. At that time the 20-year period could not have expired.
“It is a firmly established rule that the commencement of suit prior to the expiration of the applicable limitation period interrupts the running of the statute of limitations as to all parties to the action and their privies, not only as to all causes of action set forth in the complaint or petition, but also as to all defenses which may be interposed by the defendant.” 34 Am.Jur. 202. See also Linn & L. Timber Co. v. United, States, 236 U.S. 574, 59 L.Ed. 725, 35 S.Ct. 440; Columbia Heights Realty Co. v. Rudolph, 217 U.S. 547, 54 L.Ed. 877, 30 S.Ct. 581, 19 Ann. Cas. 854; Friel v. Alewel, 318 Mo. 1, 298 S.W. 762, citing R. C. L. *314Forman v. Brewer, 62 N.J. Eq. 758, 48 A. 1012, 90 Am.St. Rep. 475; Clark v. Duncanson, 79 Okla. 180, 192 P. 806, 16 A.L.R. 315; Alexander v. Munroe, 54 Or. 500, 101 P. 903, 103 P. 514, 135 Am.St.Rep. 840.
Assuming that Sauafea did have adverse possession as early as 1928, when he was only 16 years old, still he could not acquire title prior to 1948. Since the statute (applying foregoing well-established principle of law quoted from American Jurisprudence) had not run by May 26, 1947, it follows that Sauafea has not acquired the title to the land from Tufaga by adverse possession. However, it is very clear from the evidence that he does own the plantations.
It appeared from the testimony of Vaaitautia (and it was not contradicted in any way) that Tufaga, Matalolo, Vaaitautia and Vailapua are four matais in the same family and that it was agreed between them that Vaaitautia might register the land as the property of the Vaaitautia .title, principally because Tufaga and Matalolo are very old men, Matalolo being so old that he could not come to the trial.
It is our conclusion from the evidence that the land is the communal land of the Tufaga title, and regardless of the above agreement should be registered as such.
Accordingly it is ORDERED, ADJUDGED AND DECREED that the land as shown in the survey accompanying the offer to register be registered as the communal family land of the Tufaga title, and the Registrar of Titles will be so advised.
Costs in .the sum of $25.00 are hereby assessed against Sauafea Moelata, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485098/ | DECISION
Amituanai pro se; Masefau pro se.
MORROW, Chief Justice.
This case involves the right to the matai name Sauitufuga of the village of Nua. Masefau filed his application with the Registrar of Titles to be registered as the holder of the name on September 16, 1947. Amituanai filed his objection to such proposed registration on October 6, 1947 and became a candidate for the name himself.
The evidence showed each of the candidates to be a full-blooded Samoan, to have been born in American Samoa, to have lived in American Samoa all of his life, to live with Samoans as a Samoan and to be a descendant of a Samoan family. Consequently each candidate is eligible to succeed to a matai title. Section 936, American Samoan Code.
Section 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed:
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Each candidate filed a petition signed by the members of the family supporting his candidacy. There were 59 signers on Masefau’s petition and 16 on Amituanai’s. Neither candidate made any objection to any of the signers on the other’s petition. There are 6 signers on Masefau’s petition giving their ages as 10 years or under. There are 2 such signers on Amituanai’s petition. We do not think that children so young can have an intelligent wish as to who shall *320be their matai. In other cases of this kind the court has refused to consider the names of such young children in determining the wish of the majority or plurality of the family. We do not believe that they should be considered in this case. Excluding them, there are 51 members of the family on Masefau’s petition and 14 on Amituanai’s. It is apparent that Masefau prevails over Amituanai on the issue of the “wish of the majority or plurality of the family.”
Masefau works at the ice plant operated by the Public Works Department and receives a salary of $80.00 per month. He has held his job for 11% years. He is a skilled electrician and can operate an electric power plant. He has some plantations and sells his surplus produce for which he gets $50.00 to $100.00 per year. Masefau completed the 9th grade in school.
Amituanai has been employed by the Public Works Department for 10 years. At present he is a member of a road gang with a salary of $64.00 per month. He sells nothing from his plantations. He completed the 5th grade in school.
In view of the foregoing facts and from our observation of the two candidates at the hearing we have reached the conclusion that Masefau prevails over Amituanai on the issue of “forcefulness, character, personality and capacity for leadership.”
Amituanai stated on the stand that he was “not related by blood to any former holder of the name Sauitufuga.” Masefau is the gread [sic] grandson of Sauitufuga Tavita, the first holder of the name. He is also related by blood to Sauitufuga Fiu and Sauitufuga Ene. It is apparent that Masefau prevails over Amituanai on the issue of hereditary right, since the latter has no connection by blood with any former holder of the name.
The value of a matai to the Government depends largely upon the manner in which he handles the affairs of his *321family, and that in turn depends in considerable measure upon his personality and capacity for leadership. In view of our finding that Masefau prevails over Amituanai on the issue of “forcefulness, character, personality and capacity for leadership” we conclude that as the matai of the Sauitufuga family he will be of more value to the Government than Amituanai and that he prevails over the latter on this issue also.
Applying Section 933 of the Code to our findings in this case, it follows that Masefau should be registered as the holder of the name Sauitufuga of Nua.
The Registrar of Titles will be advised to register Masefau as the Sauitufuga of Nua.
Costs in the amount of $12.50 are hereby assessed against Amituanai, the same to be paid in 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485099/ | DECISION
MORROW, Chief Justice.
This case involves the question as to who shall be registered as the Poloa of Leone. Tuliloa filed his application with the Registrar of Titles to be registered as such holder on September 22, 1947. Toilolo Lui filed an objection to such proposed registration on October 16, 1947 and became a candidate for the name himself.
The evidence showed that each of the candidates is a full-blooded Samoan; was born in American Samoa; has lived in American Samoa all of his life; lives with Samoans as a Samoan and is a descendant of a Samoan family. Consequently both candidates are eligible to succeed to matai title. Sec. 926, American Samoan Code.
Sec. 933 of the Code provides that:
“In the trial of Matai name cases, the High Court shall be guided by the following in the priority listed :
1. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
Toilolo filed a petition purporting to be signed by 89 members of the Poloa family asking that he be named its matai. Tuliloa filed a similar petition with 39 names upon it. Tuliloa claimed that 30 signers on Toilolo’s petition were not members of the Poloa family. Toilolo claimed that one signer on Tuliloa’s petition was not a member of the family. If it be conceded that the 30 names on Toilolo’s petition were not those of members of the Poloa family and also conceded that the one name on Tuliloa’s petition objected to by Toilolo is a member of the family, it is clear that a majority of the family favor the candidacy of Toi*323lolo in the ratio of 50 to 39. It follows therefore that Toilolo prevails over Tuliloa on the issue of the wish or [sic] majority or plurality of the family.
Toilolo has worked as a stevedore, as a laborer with the Supply Department, as a clerk in the Ships Service store and was a Fita Fita for 5 years. He has plantations. Tuliloa worked as a laborer carrying shells for a couple of years during the war. He has plantations. Toilolo has an income of about $250 per year from surplus food grown on his plantations and from Samoan curios. Tuliloa at first stated on the witness stand that he had an income of less than $100 a year from copra, his sole source of income. After he heard Toilolo testify that he had an income of $250 per year, Tuliloa testified that his income from copra last year was $700 and then he said it was $600. The conflict in the testimony given by Tuliloa in his own behalf weakens his evidence. Toilolo has been a matai for 4 years and consequently has had experience in looking after the affairs of a matai family.
In view of all the evidence and the observation of the two candidates at the hearing, it is the opinion of the court that Toilolo Lui prevails over Tuliloa on the issue of forcefulness, personality and capacity for leadership.
Toilolo was mixed up in the theft of some goods from a government warehouse while he was in the Fita Fita Guard with the result that he was court-martialed and given an undesirable discharge. There was no evidence reflecting upon the character of Tuliloa. We conclude that Tuliloa prevails over Toilolo on the issue of character.
Toilolo is the great grandson of Poloa Fualemilo. Consequently he has Poloa blood in his veins. Tuliloa is not a descendant of a former holder of the Poloa title. He has no Poloa blood in his veins. His only connection with the Poloa title is through his marriage with Sesi, who is the daughter of Poloa Mikaele. It is our opinion that the term *324“hereditary right” used in subdivision 3 of Sec. 933 of the Code means right based upon blood and not upon marriage. It is clear therefore that Toilolo prevails over Tuliloa on the issue of hereditary right.
Based upon the evidence the Samoan Judges are of the opinion that the two candidates stand upon a parity with respect to the issue of the value of the holder of the matai name to the Government of American Samoa. This opinion is concurred in by the writer.
In view of our findings upon the various issues it follows that under the law (Sec. 933 of the Code) Toilolo Lui should be registered as the holder of the matai name' Poloa of the village of Leone. The Registrar-of Titles will be advised to register him as such. Costs in the sum of $12.50 are hereby assessed against Tuliloa, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485100/ | DECISION
Vaimaona for the Vaimaona family; Mulitauaopele S. pro se.
MORROW, Chief Justice.
Mulitauaopele Suiava offered certain land in Laulii for registration as the communal family land of the branch of the Pele family of which he is the matai, such offer being accompanied by a survey of the land. The Vaimaona family by Vaivaimalemalo filed an objection claiming the land as its communal property.
The plat shows a dotted line running slightly east of the middle, from the high water mark on the southern boundary to the bottom of the cliff on the northern boundary. This line runs through a fale now standing on the land. When the Judges visited the property the day preceding the hearing, Vaivai, a former holder of the Vaimaona title who filed the objection for the family, stated to the Judges that the land in the survey west of such line belonged to the Pele title and not to the Vaimaona family. He was the principal witness for the family at the hearing. As such witness he testified that all the surveyed tract belonged to his family, thus repudiating his statement to the Judges 24 hours before. In the opinion of the Court this inconsistency weakens his credibility as a witness. If one statement is true, the other is not.
To support the claim of ownership of the land by the Vaimaona family, Vaivai testified that his family had plantations on the land for 48 years beginning with the administration of Vaimaona Mali and continuing through administrations of successive matais of the family to and including his own mataiship which ended in 1941. The Marines occupied the land during the war. When it ended in 1945 Tautau, now rendering service to the Vaimaona, put up á fale on the land and has occupied it ever since. Tautau *326was formerly a member of the Pele family and rendered service to Pele Tinoifili and after him to Sele Savea, who died in 1941. When Pele S., the proponent, received the title in 1945 Tautau went over to the Vaimaona family and refused to render service to Pele S.
The testimony of Vaivai was supported in part by testimony of another witness. In answer to the question “Is the title Vaimaona in the Pele family?” Vaivai answered “Yes”. He also testified that he was a member of the Pele family.
Filemu who is between 80 and 90 years old and who married into the Pele family some 70 years ago — he has been blind for more than 10 years — testified that he had plantations on the disputed land “from the time the government appointed policemen, magistrates and pulenuus up until the time Vaimaona claimed .this land as his. I asked my boys and children whether my plantations were still on the land and they said most of them were still there beyond the survey.” This means that the witness had plantations on the land from shortly after the Government was established in 1900 up to 1945. Of course the Marines for military reasons did not interfere with plantations any more than they could avoid. Filemu further testified that he cleared the land from bush shortly after the Government was established. Luatupu, the widow of Pele Leaana, who has lived in Laulii for about 40 years, testified that she had seen Filemu working his plantations on the land for “about 30 years.” In answer to the question “Did you and Pele Tinoifili plant plantations on the land Aumi before you married Pele Leaana?” she said: “Yes and we cut copra from that place.” The testimony of Filemu and Luatupu to the effect that the surveyed land had been used by the Pele family for plantations from shortly after the Government was established in 1900 up to the time Tautau (also a member of the Pele family, who moved on to the tract in *3271945) began to render service to the Vaimaona about 1945, is fully corroborated by the testimony of other witnesses.
Despite the conflict in the testimony we are convinced that the evidence very clearly preponderates in favor of the view that Filemu, a man married into the Pele family, and rendering service to a Pele, cleared the land of bush shortly after the Government was established and that the Pele people had plantations on it thereafter until the Marines moved in after the war started in 1941; that they continued to have some plantations on it despite the occupation by the Marines during the war; that when Pele S. got the title in 1945, Tautau, the present occupant, who had rendered service to the former Peles beginning with Pele Tinoifili, went over to the Vaimaona family and at that time the present claim of the Vaimaona to the land had its inception. Under Samoan customs, when Filemu cleared the land of bush, put in plantations, rendered service to the then Pele and the Pele and he claimed the land as communal land of the Pele family, it is clear that the land became Pele communal land. Section 2 of the American Samoan Code provides that “The customs of the Samoans not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved ...” The prior Codes have contained provisions to the same effect. There is and has been no law of American Samoa or of the United States concerning American Samoa prohibiting the acquisition of title to bush land pursuant to Samoan customs as they existed at the time Filemu cleared the land of bush and put in the plantations.
Furthermore we are convinced from the evidence that if there was any prior claim to the land by any other family or person, it was outlawed by the statute of limitations 20 years after the land was cleared by Filemu. 2 Corpus Juris 251; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Amituanai v. Tuli, No. 52-1948 (Am. Samoa). See also Talo v. Tavai, No. 14-1938 (Am. Samoa). The evi*328dence convinces us that the possession of the land by the Pele people for 20 years after Filemu took possession and put in plantations was actual, open, continuous, éxclusive, hostile, visible, notorious and under claim of title. See II Tiffany on Real Property (2nd Ed.) Sections 501-504.
Pele Fia and Pele Yeu, then joint holders of the Pele title, divided the Pele lands between them years ago, but such division occurred after the occupation of the surveyed land by Filemu. Mulitauaopele S., the proponent, is a remote successor in title to the Pele to whom the surveyed land was given when the division was made.
It is our conclusion from the evidence and the law that Mulitauaopele S. is the owner of the surveyed land in his capacity as a matai.
It is therefore ORDERED, ADJUDGED AND DECREED that the land situated at Aumi, as shown on the plat filed in this case, be registered as the communal family land of that branch of the Mulitauaopele family of which Mulitauaopele Suiava is the present matai. The Registrar of Titles will be so advised.
Costs in the amount of $25.00 are hereby assessed against Vaimaona, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485101/ | DECISION
MORROW, Chief Justice.
luli offered certain land in Tula for registration as the communal land of the luli family, the offer being accompanied by a survey of the land. Leatutufu filed an objection to the proposed registration claiming the land as the communal land of the Leatutufu family. Hence this litigation. Section 905 of the A. S. Code.
The evidence as to the use. and occupation of the land prior to World War II was in serious conflict. However, there is no dispute as to its having been occupied and used by the Marines during the war; nor is there any dispute as to Leatutufu’s having been in possession of it since the Marines left it about the end of the war. The evidence conclusively shows that after the Marines moved out Leatutufu put in bananas, pandanus and new coconuts on the tract; that he has kept the new plantations in order and that in 1947 he built a Samoan fale on a cement platform built by the Marines on the land.
The present possession of the land by Leatutufu creates a presumption that he is its owner. Bradshaw v. Ashley, 180 U.S. 59, 63; I Jones on Evidence (4th Ed.) 133; 20 *330Am.Jur. 231. Mr. Wigmore in his monumental work on evidence says that “where title to land becomes material, the fact of present possession alone may serve to create a presumption of ownership ...” Wigmore on Evidence (3rd Ed.) Section 2515. We held to the same effect in Amituanai v. Tuli, No. 52-1948 (Am. Samoa).
Leatutufu, aged 62, testified Leatutufu Niu Lelea had possession when the Government was established in 1900; that after him possession passed to Leatutufu Niu Suaese and that after him possession passed to the witness. The witness stated that he received his matai .title in 1934 and that that was the time he got possession. He further testified that some of the large trees on the land, when it was bush except for a few coconuts, were cut down by his father. He also stated that he was the first holder of the title Leatutufu, which conflicts with his testimony that it was held by Niu Lelea and Niu Suaese. However, he did indicate that these two men were members of the Leatutufu family. Leatutufu’s testimony as to the possession of the land by Niu Lelea, then by Niu Suaese and finally by Leatutufu himself was corroborated by Lealao, 53 years of age. Lealao also testified that Niu Lelea and Niu Suaese were members of the Leatutufu family; and that Niu is a lesser title in that family.
Iuli testified that Niu Lelea cultivated the land and planted plantations on it before Leatutufu got the title. In answer to the question whether Niu is a matai or a young man’s name he testified “that is the matai of the Leatutufu family.” His testimony also was to the effect that the land had been in possession of his family from before the establishment of the Government until the Marines moved in during the war. Iuli testified that he showed the land to the War Claims Commission in order to get .the money for the war damage to it, and that the money for such damage was paid to him. Leatutufu testified that he showed the land to *331the Commission for the same purpose and that he got the money for the damage.
Leatupo, a witness for Iuli, testified that the Iuli family had plantations on the land prior to the present Leatutufu (the objector) putting in his plantation on it.
We think that the evidence preponderates in favor of Leatutufu. We believe, especially in view of Iuli’s testimony that Niu Lelea had plantations on the land prior to the objector Leatutufu and that Niu was a matai in the Leatutufu family, that the property was in the possession of the Leatutufu family from the time of the establishment of the Government in 1900 up to the time the Marines took possession during the war, and that it has been in the possession of Leatutufu since the Marines left at the close of the war.
Our view of the evidence leads us to the conclusion that the land offered for registration is the property of the objector Leatutufu.
Since such possession has been active, open, exclusive, notorious, visible, continuous, hostile and under a claim of title, it follows that if the Iuli family had any prior claim to it, such claim has long since been outlawed by the 20 year statute of limitations. 2 Corpus Juris 251; II Tiffany on Real Property (2nd Ed.) Sections 501-504; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Vaimaona v. Mulitauaopele S., No. 57-1948 (Am. Samoa).
While it is not necessary to a decision in this case, it may properly be said that if the testimony for the proponent Iuli and objector Leatufufu [sic] were equally balanced, which it is not, the presumption of ownership in the objector arising from the fact of his possession of the property would prevail. Kauffman v. Logan, 187 Iowa 670, 174 N.W. 366. It has been said that a “presumption of law cannot be said to be rebutted, where the evidence of equally credible witnesses for and against the presumption is *332equally balanced ... where the evidence for and against the presumption are equal the presumption will prevail.” Rowe v. Rowe, 144 Va. 816, 130 S.E. 771, 772. The view that when the evidence is equally balanced, the presumption will prevail is approved in Worth v. Worth, 48 Wyoming 441, 49 P.2d 649, 103 A.L.R. 107, 114.
In view of the law and the evidence it is the conclusion of the court that the surveyed tract offered for registration by luli is the communal land of Leatutufu of Tula in his capacity as a matai.
Section 905 of the Code provides that “when land is offered for registration, the offer shall be accompanied by a survey of the land proposed to be registered. The point of departure in such survey shall be either (a) tied in with an established naval co-ordinate or (b) be a concrete monument procured from or poured in place by the Public Works Department for that purpose and set at least 3 feet in the ground at a corner of the land.” When the Judges visited the property on the day preceding the hearing, and asked to be shown the iron pin designated on the filed plat as the point of beginning, the parties were unable to locate it. Nor was there any concrete monument set at a corner.
Upon the survey being tied in with a naval co-ordinate and properly indicated by the surveyor on the filed plat or upon satisfactory evidence being filed with the court of the installation of a concrete monument complying with the requirements of Section 905, the court will order that land Matatula, be registered as the communal land of the Leatutufu in his capacity as matai of that family, said land being designated by Leatutufu as Fagasa.
Inasmuch as the expense of surveying the land was borne by luli and will inure to the benefit of Leatutufu, it is equitable that Leatutufu bear the costs in this court. Accordingly, costs in the sum of $25.00 are hereby assessed against Leatutufu, the same to be paid within 30 days.
*333Evidence of satisfactory nature to the effect that a concrete monument has been set at a corner of the property involved (it appears from a certificate of the Pulenu’u of Tula filed with the court that two such cement posts have been placed at two corners of the highway) it is ordered that the property be now registered as provided in the third full paragraph on page 332.
Apr. 7, 1948 /s/ Arthur A. Morrow, C. J. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485115/ | DECISION
MORROW, Chief Justice.
There being a vacancy in the Faagata title attached to *394the village of Fagatogo, Mano filed his application on March 8, 1948 to be registered as the Faagata. Eneliko filed an objection to such proposed registration on March 22, 1948 and became a candidate for the name. The evidence showed that each of the candidates is eligible to succeed to a matai title pursuant to the provisions of Sec. 926, American Samoan Code.
Sec. 933 of the Code provides that
“In the trial of Matai name cases the High Court shall be guided by the following in the priority listed:
1.. The wish of the majority or plurality of the family.
2. The forcefulness, character, personality and capacity for leadership of the candidate.
3. The best hereditary right in which the male and female descendants shall be equal in the family where this has been customary, otherwise, the male descendant shall prevail.
4. The value of the holder of the Matai name to the Government of American Samoa.”
In behalf of Eneliko it was claimed that only members of the family residing in Fagatogo should have their wish as to who should be the matai considered and that the court should give no consideration to the wish of the family members residing in other villages. According to the statute it is “the wish of the majority or plurality of the family” that is to be considered and not the “wish of the majority or plurality of the family residing in the village to which the title is attached.” If it were to adopt the interpretation contended for it would in practical effect be making law. This court has no legislative power. It takes the law as it finds it. The court must leave the making of law to the legislative authority. The history of mankind has demonstrated time and again that the liberties of the people are best preserved when legislative power and judicial power are not exercised by the same body.
*395Each of the candidates filed a petition signed by the members of the family supporting his candidacy. There were 163 signers on Mano’s petition and 88 on Eneliko’s. Eneliko admitted on the witness stand that all of the signers on Mano’s petition were members of the Faagata family. The evidence is convincing that the majority of the family wish Mano to become the Faagata. Hence Mano prevails over Eneliko on the first issue.
Eneliko is 33 years of age, has completed the 9th grade in school, speaks English well, is a carpenter with an income of about $2,000 a year from that occupation, and has plantations. Mano reached the 3rd grade in school, works occasionally as a foreman in the loading and unloading of steamers for which he receives about $30 a month. He speaks very little English. Mano has committed a considerable number of small crimes of which he has been convicted. The evidence showed that he is addicted to the use of liquor and gets drunk. We find that Eneliko prevails over Mano on the issue of “forcefulness, character, personality and capacity for leadership.”
Mano is the blood son of Faagata Mano. Eneliko is the blood grandson of Faagata Foaese. Mano has one-half Faagata blood in his veins, Eneliko one-fourth. It follows therefore that Mano prevails over Eneliko on the issue of hereditary right.
The evidence convinces us that Eneliko would be more valuable to the Government of American Samoa as the holder of the matai name Faagata than Mano. He is clearly superior to Mano with respect to education, character and capacity for leadership. These superior qualifications indicate that Eneliko would make the better matai. The value of the holder of a matai title to the government depends mostly upon the skill with which he performs his duty as a matai. We find for Eneliko on the fourth issue.
Since Sec. 933 above quoted requires the court in *396awarding a matai title to give most weight to the wish of the majority or plurality of the family, less weight to the matter of forcefulness, character, personality and capacity for leadership, still less weight to the matter of hereditary right and the least weight to the matter of the value of the holder to the Government, it follows, Mano prevailing over Eneliko on the 1st and 3rd issues, that it must award the matai name Faagata to Mano.
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Mano be registered as the holder of the matai name Faagata of Fagatogo. The Registrar of Titles will be so advised.
Costs in the sum of $12.50 are hereby assessed against Eneliko, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485116/ | DECISION
MORROW, Chief Justice.
Aumavae of Leone offered for registration certain land, called Puapua, lying immediately south of the main highway from Leone to the Naval Station and. immediately west of the road from Taputimu to such main highway, the offer, being accompanied by a survey of the tract. Sei and Atofau filed objections to such proposed registration, each claiming to be the owner of the land. Hence this litigation. See Sec. 905 of the American Samoan Code. Prior to the hearing the court visited the land in the presence of all parties.
Aumavae claims the land as his own individual property and traces his title to an alleged gift of it to him by the Lemeanai family of Iliili prior to the establishment of the government in 1900. Sei claims the land as his individually owned property. Atofau claims it as the communal family land of the Atofau title.
*398We shall first consider Sei’s claim. Sei is the present occupant of most of the property. Although there was some dispute as to the length of time during which he has occupied and used such part of the property, nevertheless we conclude from the evidence as a whole that such occupancy and use has extended over a period of more than 20 years. Sei admitted on the witness stand that he is a member of the Atofau family, that when he got possession of the land he was a young man in that family and that he took possession under the authority of Atofau Noaese, the then holder of the Atofau title. He rendered service to Atofau Noaese. It is clear to us that he took possession in accordance with Samoan customs and that he has retained possession in accordance with such customs. He introduced no evidence from which we may properly conclude that he is the owner of the property. It is our conclusion however, that he was a young man to whom the matai of the family assigned some family lands in accordance with Samoan customs.
The origin of the Atofau title to the land is quite clear. We believe that 70 year old Lopa, when a young man, and other members of the Atofau family took possession of it before the establishment of the Government, cut down some of the large trees growing upon it when it was bush and then put in plantations. We believe from the evidence that the Atofau title acquired ownership of the land through such occupancy and use. See II Blackstone, p. 8. Of course the raising of the American flag on the Island of Tutuila in 1900 did not affect this private land title. United States v. Percheman, 7 Peters 51, 86-87; Toilolo v. Ilaoa, No. 5-1937 (Amer. Samoa); Talo v. Poi, No. 16-1937 (Amer. Samoa). It is our conclusion from all the evidence that the title to this property has been in the Atofau ever since such original occupancy.
Aumavae explains the present occupancy of the land by Sei and Leasina, widow of Polevia, a member of *399the Atofau family, by testifying that in 1933 he himself gave permission to Atofau Noaese, since deceased, to occupy the land. However, his own witness, S amana, testified that to his knowledge this land had been in the possession of the Atofau family since about 1919; at least since a very short time after the end of World War I, and we believe if the Atofau people did not occupy and use this land prior to that time, that their possession and use began at least as early as the time specified by Aumavae’s witness. If it be conceded that the land was given to Aumavae by the Lemeanai family as is claimed by him nevertheless the Atofau title is now the owner of the land through the operation of the Statute of Limitations, its possession having been actual, open, exclusive, continuous and under a claim of title for more than the statutory period. See Puailoa v. Leapaga, No. 64-1948 (Amer. Samoa); Vaimaona v. Mulitauaopele S., No. 57-1948 (Amer. Samoa); Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; 2 Corpus Juris 251.
In the States, Aumavae’s testimony to the effect that he gave permission to Atofau Noaese in 1933 to use the land involved would not have been admissible because of statutes rendering incompetent as a witness a party to a transaction with a deceased person. II Wigmore on Evidence (3rd Ed.) Sec. 578. The purpose of such statutes is to put the parties upon an equal footing and to prevent the survivor from taking an undue advantage. It is said that “if death closes the lips of one party, the policy of the law is to close the lips of the other.” Louis v. Easton, 50 Ala. 471. However we do not have such a statute in American Samoa and a party is no longer disqualified as a witness because of interest. Consequently we admitted the evidence. But as heretofore stated, we are certain under the law and the evidence that if Aumavae ever did have any claim to this land it has long since been outlawed by the *400Statute of Limitations. We have very grave doubt, however, that he did, since we believe that at the time of this alleged gift prior to the establishment of the government such land was bush and had never been occupied or used by anyone. Whether the Lemeanai family could have any title to it in such a state of affairs is certainly subject to grave doubt. It could not have been any more than the most nebulous title, but we have decided this case upon other grounds and it is not necessary to pursue this question any further. Aumavae testified that at the time the alleged gift was made he was 16 to 18 years old and that it was made some 18 years before the establishment of the government in 1900. If this testimony be true, Aumavae would be at least 82 years old now. He testified that he was 67. It is a significant fact that when the War Claims Commission investigated properties at Leone to determine war damage, Aumavae did not show the land in dispute to the Commission although he showed it other lands admittedly his.
It is ORDERED, ADJUDGED AND DECREED that the land Puapua as shown in the survey accompanying the foregoing offer to register the same be registered as the communal family land of the Atofau title of Leone. The Registrar of Titles will be so advised.
Inasmuch as the expense of the survey was borne by Aumavae and will inure to the benefit of the Atofau title no costs will be assessed against Aumavae. Under Samoan customs Sei has a moral right to continue in possession of the land under authority derived from Atofau. Costs in the sum of $10.00 are hereby assessed against Sei and $15.00 against Atofau Kelemete, the same to be paid within thirty days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485117/ | DECISION
MORROW, Chief Justice.
Taetafea, John Poti and Faalanu offered certain land designated as Pueofua’au in Pago Pago for registration as their individually owned land. The offer to register was accompanied by a survey of the tract. Teo and Gi each filed *402an objection in behalf of his family claiming that the land belonged to him as the matai of his family. Hence this litigation. Sec. 905 of the American Samoan Code. On the day preceding the hearing the court viewed the land in the presence of all parties concerned. The L. M. S. Church of Pago Pago is located on the tract. The evidence clearly showed that the owners of the property had dedicated the part of the land now used for church purposes to the L. M. S. Congregation of Pago Pago for a church; also a highway running from the Pago Pago-Fagasa road to the front of the church for such purposes.
Teo claims to be the owner of all the land, his title long antedating the establishment of the government in 1900. Gi claims to own substantially the southern half of the surveyed tract under a claim of title likewise antedating the establishment of the government. Taetafea, John Poti and Faalanu claim that their title originated in 1905 through the gift of the land by the then Gi with the consent of Gi family to Taetafea and her husband Poti. Taetafea is a member of the Gi family. Upon her marriage to Poti he came to live with her in the Gi family and they rendered service to the then Gi. Poti was a member of the Fita Fita Guard and had a cash income. His service to the Gi included cash donations. Poti died sometime before World War I. His widow Taetafea, and their two children, the above John Poti and Faalanu, survived him.
It was admitted by all parties that what is substantially the southeastern half of the land involved in this case was used by the Gi family for a long time prior to 1905. The present Teo testified that a former Teo gave this land to a former Gi, presumably years before the establishment of the government. It does not appear that the present Teo (although he testified to the fact of such gift) had any personal knowledge thereof. He admitted that his information was based upon hearsay. While no objection was made *403to the introduction of his hearsay testimony and no motion made to strike it out, we feel compelled to say that, regardless of the integrity of Teo, it is entitled to very little if any weight. It is not necessary for us to consider it because the evidence clearly shows that Taetafea and her husband Poti, and after Poti’s death, Taetafea and her children possessed this southeastern half for more than 20 years. Their possession was actual, open, exclusive, continuous and under a claim of title for more than the statutory period. Under these circumstances any claim that the Teo may have had has long since been outlawed through the operation of the Statute of Limitations. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 607; Vaimaona v. Mulitauaopele S., No. 57-1948 (Am. Samoa); Puailoa v. Leapaga, No. 64-1948 (Am. Samoa); 2 Corpus Juris 251.
Gi, while admitting that Taetafea and her husband Poti, and after Poti’s death Taetafea and her two children, had plantations on the land for many years after 1905, claims that their possession and use of the land was under authority of the Gi, he having assigned such land to them (they are Gi family members) in accordance with Samoan customs. We know judicially that some matais in American Samoa have, with the consent of their family members, given family lands outright to certain members of their families. Taetafea testified that she was present and heard the old Gi in 1905 make a gift of this land to her and her husband and that such gift was a reward for the splendid service rendered by her husband and herself to the then Gi; also that such gift was followed by possession by the donees. This testimony was not contradicted. Alo’s testimony, while not entitled to the same weight as Taetafea’s on account of his youth at the time, corroborated Taetafea’s testimony in regard to the gift. The present Gi did not deny such gift. He obviously did not know whether such gift was in fact made. All he claimed was that he had not heard *404about it. In view of the uncontradicted testimony of Taetafea and Alo, the Judges believe that the evidence preponderates in favor of the view that such gift was in fact made.
The erection of the L. M. S. Church now located on the land and shown on the survey was begun in 1935. It appears beyond doubt that Teo, acting in behalf of his family, expressly dedicated a portion of the land on which the church stands for the use of the church. Gi claims that he, acting in behalf of his family, also dedicated the other portion of the land on which the church stands for church purposes. Gi insists that since Taetafea did not object to the erection of the church it is quite apparent that she and her children were not the owners of any part of the land on which the church stands. We do not think this follows. It must be remembered that Taetafea is a. woman. Any objection by her would not have stopped the erection of the church. If she had objected, the probability is that she would have found herself in difficulty. We think an objection by her would have been a useless act and under these circumstances her failure to object cannot be taken as an implied admission of lack of ownership by her and her children of any part of the land on which the church is built.
It is our conclusion from the evidence that the Teo family is the owner of substantially the northwest half of the surveyed land while Taetafea and John Poti and Faalanu are the owners of the remainder. We reach this conclusion after reviewing the evidence with care. Legal descriptions of these two parts will be set out. in the decree.
The line dividing this tract between the respective owners runs in a northeasterly direction, parallel to the Fagasa road and cuts the church lengthwise. The rights of the owners of this land are subject to the rights of the L. M. S. Congregation of Pago Pago in that portion of the land dedicated for church purposes. “By analogy, rather than in *405strict conformity to the common law principle, the theory of dedication has been invoked to uphold gifts for pious and charitable uses, as for churches, schools, and cemeteries, though their benefits are enjoyed by a certain class, and not by the public at large, some of the specific applications of this analogy being found in cases sustaining dedications for the residence of a minister or a particular religious congregation, for a church or for a religious purpose, for a camp ground for holding religious meetings, for a cemetery, and for a public school.” 16 Am.Jur. 351. Land “may be dedicated for the use of a particular religious sect or denomination, or a particular church society, as a place for worship, as a cemetery, or as a parsonage.” 4 Tiffany on Real Property (3rd Ed.) p. 332. We upheld a dedication of land for purposes of a Mormon parsonage in Leiato v. Satele and Tapopo, No. 68-1948 (Am. Samoa). That land may be dedicated by the owner for church purposes we have no doubt.
As heretofore stated the evidence shows that the Teo expressly dedicated a portion of his land for a church. Taetafea, John Poti and Faalanu made no objection to the erection of the church, part of which is on their land. They have stood by for at least 13 years and voiced no objection. “Dedication may arise from the failure of the owner to object to use by the public. A highway may be established in this manner. In such a case there is said to be an infer-? ence or presumption that such use and enjoyment had a legal origin, and that the highway was at some anterior period laid out and established by competent authority.” 16 Am.Jur. p. 392. While mere use by the public does not establish dedication, nevertheless the owner’s acquiescence in such usage over a long period of time is a fact having a bearing on the question of dedication. “The theory is that if the public user has been openly as of right, and for so long a time that it must have come to the knowledge of the *406owner of the land, the owner’s acquiescence therein may justify the inference that he intended that it be devoted to such use.” 4 Tiffany on Real Property (3rd Ed.) p. 340. The fact that Taetafea, Poti and Faalanu have stood by for 13 years and seen a portion of their land used for church purposes and made no objection thereto is a clear indication to us of a dedication by them.
Of course the church has only an easement in the portion of the land used for church purposes, the fee simple being in the dedicators. “By a common law dedication, the fee does not pass. The public acquires only an easement or such an interest in the land as is necessary for its enjoyment of the use. The fee ordinarily remains in the proprietor, the public holding the easement in trust. The legal or equitable title to land is not destroyed by dedication.” 16 Am.Jur. p. 402. To the same effect is 4 Tiffany (3rd Ed.) p. 366. We have held that the fee to dedicated land remains in the proprietor and that the public acquires only an easement therein. Leiato v. Satele and Tapopo, No. 68-1948 (Am. Samoa).
It is ORDERED, ADJUDGED AND DECREED that the land as shown on the survey beginning at Y=50,-942.43, X=191,898.00 thence N 43°34' E, 209.15 ft.; thence S 33°6' E, 165.55 ft.; thence S 55°10' W, 363.7 ft.; thence N 17°55' E, 203.04 ft. to the place of beginning, shall be registered as the land of the Teo in his capacity as matai of the Teo family.
And it is further ORDERED, ADJUDGED AND DECREED that such land is subject to the right of the L. M. S. Congregation of Pago Pago to continue to use the portion thereof now used for church purposes (the church and highway leading to it are shown on the survey heretofore referred to) for such purposes.
And it is further ORDERED, ADJUDGED AND DECREED that the land beginning at the" most southwesterly *407corner as shown on the survey (which corner is the southern end of the boundary bearing N 17° 55' E referred to in the foregoing part of this decree) thence N 55° 10' E, 363.7 ft.; thence S 33°6' E, 127.75 ft.; thence S 55°10' W, 248.48 ft.; thence S 49°25' W, 57.22 ft.; thence N 55°57' W, 143.45 ft. to the point of beginning, is the individually owned land of Taetafea, John Poti and Faalanu.
And it is further ORDERED, ADJUDGED AND DECREED that such last mentioned land is subject to the right of the L. M. S. Congregation of Pago Pago to continue to use the portion thereof now used for church purposes (including the highway running from the Pago Pago-Fagasa road across the land to the front of the church) for such purposes. Such land is also subject to the rights of the public in the Pago Pago-Fagasa highway which crosses it in a southwesterly direction as shown on the survey.
The Registrar of Titles will be advised to register the land offered for registration in accordance with the provisions of this decree.
Since the benefit of the survey will inure in part to Teo, costs in the amount of $8.33 are hereby assessed against him. A like sum is assessed against Gi and a further like sum against Tautafea, John Poti and Faalanu. All costs are to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485118/ | DECISION
MORROW, Chief Justice.
Ofoia Ei’a and Va, his wife, both of Iliili offered certain land designated Leavapui in Iliili for registration as their individually owned property, the offer to register being accompanied by a survey of the tract. Muli and Leituala filed objections to such proposed registration each claiming to be the owner of the land involved. Hence this litigation. Sec. 905 of the American Samoan Code. Prior,to the hear*409ing the court viewed the land in the presence of all parties except Muli who was represented at the view.
At the trial, however, Muli claimed to be the owner of only a small triangular piece in the northern corner of the tract. He claimed the ownership of such piece as the matai of the Muli family. Leituala claimed to own the surveyed tract as the matai of the Leituala family.
While there was some conflict in the testimony, as there normally is in this type of case, the court is clearly of the opinion from the evidence that Ofoia and Va cleared all of the tract except the small triangular part claimed by Muli in 1932 at which time it was bush, and that they have had plantations on such part ever since. Fea, an aiga of Leituala, also has a taro plantation on a small part which he put in after the survey was made in early 1948, without the consent of Ofoia and Va.
Ofoia was born in Upolu 58 years ago. He came to.American Samoa when a boy, living in Nuuuli and Leóne until he married Va some 36 years ago, at which time he went to live with her in her family in Iliili. Va is the daughter of Fao, an Iliili chief. In view of the evidence we think that when this land (except the small triangular piece above referred to) was cleared by Ofoia and Va, it was cleared for the benefit of Va and with the intention that she should become the owner thereof. As a result of clearing and occupation of the part of the tract so cleared we conclude that Va became the owner thereof, her title being an original one. “And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one *410with this absolute property: Grotius and Puffendorf insisting, that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy, alone, being a degree of bodily labor, is from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A dispute that savors too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained ...” 2 Blackstone 8. The view that the occupant who first takes possession of land with the intention of having it as his own thereby becomes the owner is approved in Maine’s Ancient Law (3rd American Edition) at p. 238. We recently approved this doctrine of acquisition of original title by the first occupant, accompanied by a claim of ownership, in Faataliga v. Fano, No. 80-1948 (American Samoa). This principle applied to the facts as determined from the evidence confirms our conclusion that the part of the surveyed tract cleared by Ofoia and Va is the property of Va.
Accordingly, it is ORDERED, ADJUDGED, AND DECREED that the land, as shown in the survey, beginning at a point 32.68 feet from the eastern end of the boundary (which point lies in such boundary) designated N 60°20' E, length 150.73 feet, thence N 60°20' E, 32.68 feet; thence N 52°67' E, 67.32 feet; thence S 39°11' E, 100 feet; thence N 81° W, 148 feet to the point of beginning, shall be registered as the communal family land of Muli in his capacity as matai of the Muli family and it is further ORDERED, ADJUDGED, AND DECREED that the remainder of the land as shown on the survey accompanying the offer to register shall be registered as the individually *411owned land of Va who is the wife of Ofoia Lia. The Registrar of Titles will be advised to register the above land in accordance with the provisions of this decree. Fea will have 60 days within which to remove his taro plantation from the land.
Since the benefit of the survey made by Ofoia will inure partially to the benefit of Muli, costs in the sum of $5.00 are hereby assessed against him. Costs in the sum of $7.50 are hereby assessed against Leituala; all costs to be paid within 15 days. | 01-04-2023 | 11-18-2022 |
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