Chun Chew Pang v. Chun Chew Kee

• Decision Date: 17 February 1966
• Docket Number: No. 4413,4413
• Parties: CHUN CHEW PANG and Estelle T. Chun v. CHUN CHEW KEE, Chun Mew Yun, Chun Chew Fong, Chun Ah Ung, Chun Ah Bay, Chun Chew Nam, Chun Chew Hong, Chun Chew Quon, Chun Chew Wah and Chun Chew Leong.
• Court: Hawaii Supreme Court

Page 326

412 P.2d 326

49 Haw. 62

CHUN CHEW PANG and Estelle T. Chun v. CHUN CHEW KEE, Chun Mew Yun, Chun Chew Fong, Chun Ah Ung, Chun Ah Bay, Chun Chew Nam, Chun Chew Hong, Chun

Chew Quon, Chun Chew Wah and Chun Chew Leong.

No. 4413.

Supreme Court of Hawai'i.

Feb. 17, 1966.

Syllabus by the Court.

1. Under H.R.C.P., Rule 52(a), the function of an appellate court is to ascertain whether the findings of the trial judge are 'clearly erroneous.' Unless the appellate court is firmly convinced that a mistake has been made, the findings of the trial judge must stand.

2. A deed apparently valid upon its face carries with it a presumption of validity.

3. The doctrine of laches is available only as a bar to affirmative relief and cannot be urged in bar of a right asserted by defendant by way of defense.

Louis Le Baron, Honolulu (M. Lono Heen, Honolulu, with him on the briefs), for plaintiffs-appellants.

Eichi Oki, Honolulu (James M. Morita and Vincent H. Yano, Honolulu, with him on the briefs), for defendants-appellees.

Before CASSIDY, Acting C. J., WIRTZ and LEWIS, JJ., and Circuit Judge OKINO assigned by reason of vacancy and Circuit Judge HAWKINS in place of MIZUHA, J., disqualified.

WIRTZ, Justice.

This appeal was taken from the judgment entered in Civil No. 7840, First Circuit Court, on October 7, 1963, denying the prayer of plaintiffs-appellants to quiet the title in them to 20.6 acres of land situate at Lualualei Homesteads in Waianae, Oahu, Hawaii.

Plaintiffs are husband and wife. Plaintiff Chun Chew Pang and the ten defendants-appellees are brothers and sisters and are the children of Chun Wood (deceased) and his wife Ting On Chang Chun. Plaintiff Pang is the eldest child in the family and defendant Kee is the next eldest.

By deed dated May 3, 1927, duly recorded in the Bureau of Conveyances at Honolulu, Earnest Elbert Ethbert conveyed the property in question to plaintiff Pang for a consideration of $5,500 which was furnished by his father, Chun Wood. Chun Wood raised the money for the purchase of this property through a loan obtained from Liberty Bank in Honolulu, and at his direction it was placed in the name of plaintiff Pang. Since Chun Wood was an alien he could not take title himself, this being homestead land. The chancellor found that Chun Wood 'had title taken by Pang for the benefit of all Chun Wood's children' and Pang orally so agreed. The deed to the property was found after Chun Wood's death among the papers of his estate. Some nine months after the date of this deed Chun Wood had plaintiff Pang execute a promissory note for $5,500 on February 2, 1928, payable on demand but without provision for interest. No payment on the note was ever made or demanded. With but one exception all of the annual real property taxes for the property were paid either by Chun Wood during his lifetime or by defendant Kee as executor of his father's estate after the father's death. The father, Chun Wood, died testate on November 8, 1940, and by his will left all of his property equally to all of his children and to his widow. Defendant Kee qualified as the named executor on January 6, 1941.

On January 27, 1941, a little over two months after the death of his father, plaintiff Pang conveyed an undivided 10/11th interest in the property to the defendants, his brothers and sisters as tenants in common, retaining a 1/11th interest for himself. His wife, plaintiff Estelle E. Chun, released her dower interest therein. The deed was signed in the office of the estate's attorney, first by plaintiff Pang and then later in the day by his wife. Plaintiffs admitted the execution of the deed and identified their signatures at the trial. They also admitted and exhibited in court their ability to read and write the English language. The signatures of the plaintiffs were duly notarized and acknowledged by a Notary Public of the First Circuit, Territory of Hawaii.

The January 27, 1941 deed lay dormant in the files of the attorney for the estate until the latter part of 1959 when in the process of clearing out and discarding old files it was discovered by the office secretary and forwarded to defendant Kee, together with the 1927 deed. The 1941 deed was later duly recorded in the Bureau of Conveyances on March 8, 1960. Meanwhile plaintiffs, in 1944, three years after this 1941 deed and seventeen years after the 1927 deed and four years after the father's death, moved onto the property. Later plaintiff Pang executed a deed dated June 5, 1957, purporting to convey the property to himself and his wife. This deed was duly recorded in the Bureau of Conveyances on June 6, 1957.

On April 24, 1961, plaintiffs brought this action against the defendants under a complaint entitled 'Action to Quiet Title.' The gravamen of this complaint was that the signatures of plaintiffs to the January 27, 1941 deed 'were obtained as a result of false representations made by the Defendant CHUN CHEW KEE.' Plaintiffs prayed that they be adjudged the sole, legal and equitable owners of the property.

Defendants filed their answer on February 16, 1962, denying that the signatures of the plaintiffs to the January 27, 1941 deed were obtained as a result of false representations made by defendant Kee. The answer further alleged that in executing the deed of January 27, 1941, plaintiff Pang was simply complying with and fulfilling the oral agreement and understanding he had with his father, Chun Wood, at the time the Waianae property was purchased in 1927, namely, that the property belonged equally to all of the brothers and sisters.

While the plaintiffs maintained in their testimony throughout the trial that they had not read the January 27, 1941 deed and were unaware of its contents and signed at the behest of defendant Kee under the impression that it was a matter having to do with the estate and not with the property in question, defendant Kee in his testimony denied that he had ever requested the plaintiffs to execute the January 27, 1941 deed and was unaware of its existence until he received it through the mail from the office of the attorney of the estate in the latter part of 1959. Plaintiff Pang maintained throughout his testimony that his father, Chun Wood, had bought the property for him and that the purchase price advanced by the father was a personal loan to him. On the other hand defendants Chun Chew Kee, Chun Chew Hong (Robert), Chun Chew Wah (Bertram) and Chun Chew Nam all testified to statements corroborative of a family understanding that the property purchased for and belonged to all of the children. Defendant Kee further testified that at the time of the purchase plaintiff Pang promised to hold the property for the benefit of all the children and that at the same time the father asked him 'to sign a promissory note as a protection that you won't sell the property and run away with it.' A demand promissory note was executed some nine months after the date of the deed. Defendant Kee also testified that plaintiff Pang on several occasions acknowledged that the property belonged to all the brothers and sisters. That was also the mother's (Ting On Chang Chun) understanding as admitted by plaintiff Pang in testifying about a coversation held with his mother at a family meeting in the middle part of 1960. Defendant Chun Chew Hong (Robert) testified that plaintiff Pang had stated to him in a conversation in the early part of 1960 that as soon as the property was sold the money would be divided equally among the brothers and sisters. Defendant Kee similarly testified that plaintiff Pang came to him in 1948 about selling 'our' property for $80,000 at which time defendant Kee felt that they could get a better price. Both defendants Kee and Chun Chew Wah (Bertram) testified that plaintiff Pang had made an offer in 1960 whereby he would retain three acres and the rest of the property was to be divided among the remaining brothers and sisters.

On the basis of this testimony the chancellor in his decision cast doubt on the credibility of plaintiffs' testimony and succinctly described the transaction in his findings of fact as follows:

'This is what appears to have happened. Chun Wood wanted the land for himself and his children. But the land was homestead land. Being an alien, he could not take title himself. So he had title taken by the Pang for the benefit of all Chun Wood's children. ¹ Pang was the

eldest of Chun Wood's children. Later Pang married Estelle and gave Chun Wood grandchildren. So Pang and his family were allowed to live on the land. Chun Wood got the promissory note from Pang to be able (if necessary) to require Pang to allow all the children to benefit from the land. All went well during Chun Wood's life; so no payment was demanded on the note. Chun Wood died November 8, 1940. Knowing Chun Wood's wishes that all the children of Chun Wood benefit equally from the land, Pang and Estelle on January 27, 1941, signed and acknowledged the 1941 deed (after reading it) and left it at the office of Mr. Fong, attorney for the executor of Chun Wood's estate, for all the Defendants. This was a delivery of the 1941 deed to the Defendants. Through oversight or neglect, the deed was for many years left in Mr. Fong's office and not recorded. Chun Chew Kee was a procrastinating and careless executor. In 1960 he received the deed through the mail and recorded it.

'It appears that Plaintiffs own an undivided 1/11th interest in the land and Defendants own an undivided 10/11th interest in the land.

In thus finding for the defendants the chancellor upheld the validity of the 1941 deed. In rejecting plaintiffs' claim and in arriving at this decision the chancellor of necessity had to pass upon the credibility of the witnesses. He found not only that the 1941 deed was signed, acknowledged and delivered but also that plaintiffs signed, acknowledged and delivered the deed to honor and fulfill the father, Chun Wood's wishes and the oral...