Brownell v. Suehiro

• Decision Date: 16 October 1953
• Docket Number: No. 13459.,13459.
• Citation: 206 F.2d 892
• Parties: BROWNELL, Atty. Gen. v. SUEHIRO et al.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F.2d 892 (1953)

BROWNELL, Atty. Gen. v. SUEHIRO et al.

No. 13459.

United States Court of Appeals Ninth Circuit.

August 31, 1953.

Rehearing Denied October 16, 1953.

Rowland F. Kirks, Asst. Atty. Gen., Director, Office of Alien Property Custodian, Washington, D. C., Leon R. Gross, Sp. Asst. to Atty. Gen., Honolulu, Hawaii, Albert William Barlow, U. S. Atty., Honolulu, Hawaii, Valentine C. Hammack, Sp. Asst. to Atty. Gen., San Francisco, Cal., James D. Hill, George B. Searls, Westley W. Silvian, Attys., Dept. of Justice, Washington, D. C., Percy Barshay, Atty., Dept. of Justice, Office of Alien Property Custodian, Washington, D. C., for appellant.

Harry R. Hewitt, Honolulu, Hawaii, Roger E. Brooks, Washington, D. C., for appellees.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from a judgment of the United States District Court for the District of Hawaii.

The questions presented are: (1) whether there is sufficient evidence to support the findings of the trial judge; and (2) whether a written memorandum, written after the effective date of Executive Order No. 8389, may be considered as having the effect of taking an oral gift of real property out of the statute of frauds.

Charles I. Suehiro, Richard Yoshio Suehiro and Robert Kikuo Suehiro, United States citizens of Japanese ancestry, hereafter the Sons, filed suit in the court below under Section 9(a) of the Trading with the Enemy Act, 50 U.SC.A. Appendix, § 9(a), against the Attorney General for the recovery of certain real property located in Hawaii, together with all income from and accretions to said property, which has come into the possession and under the control of the Attorney General by virtue of a vesting order issued by him as successor to the Alien Property Custodian.

In 1941, Umetaro and Sumi Suehiro, parents of the Sons, hereafter the Parents, were the owners in fee simple of the property in question. On March 13 of that year the Parents made an unconditional parol gift of the property in question to the Sons, and shortly thereafter left for Japan in order to obtain medical care for the father. The Parents, prior to their departure, intended to convey the legal title to the Sons by executing a deed of conveyance, and would have done so, but refrained therefrom solely because of the advice of the head of the Japanese travel agency that for the purpose of facilitating their return to Hawaii they should retain in their possession the recorded deed as a prima facie showing that they owned a home in Honolulu.

The Sons took over as their own and entered into full possession of the premises at or about the time of the gift, retained possession, paid taxes from January 1, 1941, collected rents for their own profit, and continued to live in their several homes in houses existing on the land, performing all these acts under claim of title. The trial judge also found that they had made substantial improvements upon the land, but an examination of the record shows that these improvements were made after the vesting order had issued and were made with the knowledge that if the vesting order were upheld, the improvements would be lost.

The district judge concluded that the Sons were entitled to the property, that the Attorney General had acquired but a bare legal title by the vesting order, and that the part performance by the Sons was sufficient to take the transfer out of the statute of frauds.

The Attorney General contends that the court erred in holding that the Sons had made a sufficient part performance to take the transfer out of the statute of frauds. The Hawaiian statute, Revised Laws of Hawaii, 1945, Ch. 166, § 8721, reads in part as follows:

"Sec, 8721. Certain contracts, when actionable. No action shall be brought and maintained * * *

* * * * * *

"4. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them;

* * * * * *

"Unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and be signed by the party to be charged therewith, or by some person thereunto by him in writing lawfully authorized."

In Hawaii, an oral gift of land is a contract for the sale of lands for the purposes of this statute. Mokuai v. Kapuniai, 6 Haw. 160.

The Attorney General's claim is that there is no substantial evidence to support the trial court's findings that the Sons had made substantial improvements on the...