7ASR3d289

MICHAEL

PULU, Plaintiff,

 

v.

 

PULU

F. TALALOTU and WINNIE SU`APAIA, Defendants.

 

High

Court of American Samoa

Land

and Titles Division

 

LT

No. 27-02

 

October

20, 2003

 

 

[1] The court will

not substitute its judgment for that of the senior matai, absent a clear abuse

of discretion. 

 

[2] The general

rule is that a sa`o has the authority to make decisions about family

land.

 

[3] The

conveyance of a house as a gift needs to meet three criteria: (1) that the

donor intended to orally convey the house to the donee; (2) that the donor

delivered the house to the donee; and (3) that the donee accepted the house.

 

[4] The

intention of the donor may be expressed in words, actions, or a combination

thereof, and may be inferred from the surrounding facts and circumstances,

including the relationship of the parties.

 

[5] A donor may

make a gift of encumbered property in which the donee agrees to discharge the

indebtedness or the donor may agree to pay off the indebtedness but he is not

bound to pay off the indebtedness unless there is evidence that he intended to

pay it.

 

[6] If a donee

receives encumbered property from the donor along with the obligation to pay

the debt encumbering the property and a third party satisfies the debt, donee

must reimburse the third party for the amount of the debt.

 

Before

RICHMOND, Associate Justice, SAGAPOLUTELE, Associate Judge, and TAPOPO,

Associate Judge.

 

Counsel:          For Plaintiff, Marie A. Lafaele

For

Defendants, Katopau T. Ainu`u

 

 

 

OPINION

AND ORDER

 

On January 15,

2002, Defendant Winnie Su`apaia (“Winnie”) sought to register a separation

agreement (“Separation Agreement”) regarding a house located on the Pulu

family’s land.  The Separation Agreement was

executed between Winnie and Defendant Pulu F. Talalotu (“Pulu”), the sa`o

of the Pulu family.  Plaintiff Michael

Pulu (“Michael”) timely filed his objection to the registration of the

Separation Agreement. 

 

In accordance

with A.S.C.A. § 43.0302, this matter was referred to the Secretary of Samoan

Affairs.  However, after two hearings the

parties were unable to resolve their differences.  Accordingly, the dispute was referred to this

Court under A.S.C.A. § 3.0208(b)(2). 

Trial was held on July 7-9, 2003. 

All parties and counsel were present.

 

I.          FACTS AND CONTENTIONS

 

In 1974, Toe

To`oto`o (“Toe”), a member of the Pulu family, constructed the disputed house

on the Pulu family’s communal land named “Fitiuli” in Pago Pago.  Toe testified that the family sa`o then

in office signed an agreement to separate the house from the land.  She claimed that she lost her copy of the

separation agreement to hurricane Ofa in 1990 and that the registered agreement

was no longer available at the Territorial Registrar’s Office. 

 

We believe that

Toe did obtain a separation agreement. 

The statutory authorization of separation agreements essentially

facilitates loans for home construction on communal land.  Toe spent more than $50,000 on building the

house and, though not expressly said, probably financed at least a portion of

this substantial amount for the project. 

In any event, she believed that a separation agreement was necessary for

the house construction.  The separation

agreement would also have facilitated Toe’s sale of the house to her cousin,

Dave Pulu (“Dave”).  No family member has

ever objected to this sale. 

 

In 1993, Dave

purchased the house from Toe for $24,000.[1]  Dave and Toe verbally agreed that payments

would be made in monthly installments of $1,000.  However, Toe did not enforce the agreement to

make monthly payments but, rather, allowed Dave to skip payments until he was

financially able to make them.  Dave

passed away in November of 2001.  At the

time of Dave’s death, there was an outstanding balance of $1,000 on the

house.  Michael, Dave’s son, paid Toe

this balance on December 11, 2001, a very short time later.

 

Winnie

currently resides in this house with her family.  Previously, Winnie and her family lived in

California.  In 1998, Winnie decided to

move back to American Samoa at the insistence of Dave, her brother or at least

half-brother.  According to Winnie, Dave

promised her that he would give her a house if she returned to live in American

Samoa and assist in his business here. 

Winnie claims upon her return to American Samoa, Dave gave to her the

house which is the subject of this litigation. 

Winnie lived in the house, apparently without incident, until Dave passed

away in November of 2001.

 

At some point

after Dave’s death, Winnie sought a Separation Agreement from Pulu with respect

to the house.  Pulu testified that prior

to Dave’s death, Dave told him he had given the house to Winnie.  Pulu did not consult with Toe or Michael

prior to signing the Separation Agreement. 

Winnie and Pulu executed the Separation Agreement on January 15, 2002,

and Winnie offered it for registration with the Territorial Registrar the same

day. 

 

Michael objects

to the Separation Agreement.  He claims

the Separation Agreement is invalid because Dave could not give Winnie the

house when he still owed Toe $1,000. 

Michael also claims that Pulu’s decision is invalid because Pulu never

consulted with him or Toe prior to signing the Separation Agreement.  Michael argues that if the Separation

Agreement is upheld, he should receive payment from Winnie for expenses he

incurred in 1994 when he and his brothers remodeled the house.[2]

 

II.         DISCUSSION AND CONCLUSIONS

 

[1-2]

As an initial matter, “the court’s role in intra family disputes is a review

one.  The court will not substitute its

judgment for that of the senior matai, absent a clear abuse of discretion.”  Toleafoa v. Imo, 7 A.S.R.2d 117, 124

(Land & Titles Div. 1988); see also Malala v. Temu, 11 A.S.R.2d 137,

142 (Land & Titles Div. 1989) (‘‘Courts will not interfere with the

decisions of a sa`o unless they are arbitrary, capricious, illegal, or

abusive of discretion.”).  “[T]he general

rule [is] that a sa`o has the authority to make decisions about family

land.”  Malala, 11 A.S.R.2d at

142.  We see no reason to disturb Pulu’s

decision in this case.

 

Michael seeks

to invalidate the Separation Agreement because Pulu did not consult with him or

with Toe prior to executing the agreement and because he believes Pulu

mistakenly found that Dave gave the house to Winnie.  We see no reason to disturb Pulu’s decision

to execute the Separation Agreement even though he did not consult with Michael

and Toe.  “[T]he obligation of a sa`o

to discuss family decisions with family members cannot be reduced to a

formula.”  Id.  In this case, the fact that Pulu did not

consult with Toe or Michael prior to executing the Separation Agreement is not

a reason to render the Separation Agreement invalid.

 

[3]

Pulu’s understanding that Dave gave the house to Winnie is a reasonable

one.  The conveyance of the house as a

gift needs to meet three criteria: (1) that Dave intended to orally convey the

house to Winnie; (2) that Dave delivered the house to Winnie; and (3) that

Winnie accepted the house.  See, e.g.,

No. 95-011, 1997 WL 33480216, *3 (N. Mar. I. July 25, 1997); 38 Am. Jur. 2d Gifts § 19

(1999).  In this case, these three

requirements are met.

 

[4]

The evidence demonstrates that Dave intended to give the house to Winnie.  “The intention of the donor may be expressed

in words, actions, or a combination thereof, and may be inferred from the

surrounding facts and circumstances, including the relationship of the

parties.”  38 Am. Jur. 2d Gifts § 19 (1999).  Dave told Winnie that he would give her a

house to live in if she moved from California to American Samoa.  She and her husband completely uprooted their

lives in California out of respect for her brother Dave’s insistence that she

return here to assist in his business and in reliance on Dave’s promise to

provide them with a place to live. 

Winnie’s testimony is credible.

           

Dave clearly

delivered the house to Winnie and she accepted possession. Winnie moved into

the house upon her arrival in American Samoa and has been living in the house

for several years.  See generally 38

Am. Jur. 2d Gifts §§ 22, 33

(1999).  Accordingly, we find that Dave

gave the house to Winnie.

 

[5]

Michael argues that Dave could not give Winnie the house because he still owed

Toe $1,000.  We disagree.  “A grantor may make a gift of encumbered

property.”  Kiel v. Brinkman, 668

S.W.2d 926, 929 (Tex. App. 1984) (finding a conveyance of land to be a gift

even though an unpaid mortgage existed on the property); see also Foley v.

Allen, 170 F.2d 434, 437 (5th Cir. 1948) (“We are aware of no rule or

principle that prevents the donor from making a valid gift of personal property

that is subject to a lien.”).  In fact,

“[a] donor may make a gift of encumbered property in which the donee agrees to

discharge the indebtedness” or the donor may “agree to pay off the indebtedness

but he is not bound to pay off the indebtedness unless there is evidence that

he intended to pay it.”  Estate of

Kuenstler v. Trevino, 836 S.W.2d 715, 717-18 (Tex. App. 1982).  Accordingly, Dave gave Winnie the house in

spite of the one outstanding payment owed to Toe.

 

[6]

There is no evidence on whether Winnie and Dave had any agreement on who was

responsible to pay Toe the final payment. Dave continued to make payments on

the purchase price after Winnie occupied the house.  However, absent sufficient evidence that Dave

intended to have his estate or any of his sons to pay any balance owed to Toe

after his death, we hold that Winnie received received the house as a gift

along with the obligation to pay Toe the final payment.  See, e.g., id. at 718.  As such, Winnie shall reimburse Michael the

$1,000 final payment.  See generally Restatement of Restitution §§ 1, 43 cmt.

d (1937).

 

Michael also seeks to recover from

Winnie the cost of materials and labor he allegedly incurred when he worked on

the house in 1994.  This he cannot

do.  Winnie was not even living in the

house at the time Michael claims he incurred these expenses.  At that time, Dave, as the sole owner of the

house, would have received the benefit of this work.  Any recovery Michael could potentially

collect for this work could only be obtained from Dave.

 

III.       Order

 

1. Winnie owns

the house Dave gave to her.  The

Territorial Registrar shall register the Separation Agreement, dated January

2001, by and between Pulu, as the landowner, and Winnie, as the house owner.

 

2. Michael is

denied recovery from Winnie of the cost of materials he and his brothers

installed in the house.  However, Winnie

is required to reimburse $1,000 to Michael for the final house payment.

 

3. Defendants’

request for attorney’s fees is denied. 

However, they are entitled to recover other costs of suit from Michael,

and Winnie may credit her share of the costs against the $1,000 she is

obligated to pay Michael.

 

It is so

ordered.

 

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