9 FSM Intrm.528-529

KOSRAE STATE COURT

TRIAL DIVISION

Cite as Nena v. Heirs of Nena ,

9 FSM Intrm. 528 (Kosrae S. Ct. Tr. 2000)

[9 FSM Intrm. 528]

SHREW NENA,

Plaintiff,

vs.

HEIRS OF TOLENNA NENA and JULIA E. SKILLING,

Defendants.

CIVIL ACTION NO. 54-99

MEMORANDUM OF DECISION; ORDER OF REMAND

Aliksa B. Aliksa

Associate Justice

Trial: July 3, 2000

Decided: July 24, 2000

APPEARANCES:

For the Plaintiff: Akiyusi Palsis, trial counselor

P.O. Box 224

Lelu, Kosrae FM 96944

For the Defendants: Albert Welly, trial counselor

P.O. Box 187

Lelu, Kosrae FM 96944

* * * *

HEADNOTES

Property ) Certificate of Title

[9 FSM Intrm. 529]

was not given notice of the registration proceedings as required by law, the Determination of Ownership and the Certificate of Title for that land is not conclusive as upon him. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000).

Property ) Certificate of Title

A Determination of Ownership is not conclusive upon a claimant who was identified early in the Land Commission proceedings and who also testified in support of his claim at the formal hearing but was not served a copy of the Determination of Ownership. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000).

Constitutional Law ) Due Process ) Notice and Hearing; Property ) Certificate of Title In land cases, statutory notice requirements must be followed. Failure to serve actual notice on a claimant is a denial of due process and violation of law. Due to the violations of the statutory notice requirement, Determinations of Ownership and Certificates of Title will be set aside as void.Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000).

Constitutional Law ) Due Process ) Notice and Hearing

Personal service of the Determination of Ownership is required upon all parties shown by the preliminary inquiry to have an interest in the parcel. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000).

Constitutional Law ) Due Process ) Notice and Hearing; Property ) Certificate of Title

When a party, who had shown an interest in the parcel, was not served the Determination of Ownership as required by law, the parcel's Determination of Ownership and the Certificate of Title will, due to the violations of the statutory notice requirement, be vacated and set aside as void and remanded to the Land Commission to again issue and serve the Determination of Ownership for the parcel in accordance with statutory requirements. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000).

* * * *

COURT'S OPINION

ALIKSA B. ALIKSA, Associate Justice:

This matter was called for trial on July 3, 2000. Akiyusi Palsis appeared for the Plaintiff. Defendants were represented by Albert Welly. The following witnesses testified: Shrew Nena for himself as Plaintiff and Hemul Nena for the Defendants.

This is a case involving claims of trespass and violation of due process. Plaintiff claims he is the owner of parcel 069-K-09, and that the Land Commission proceedings with respect to this parcel were conducted in violation of due process. Plaintiff initially claimed ownership of parcel 069-K-12, but later withdrew his claim to parcel 069-K-12 in his Submission for Court Order filed on July 6, 2000. Therefore, Plaintiff's claims and this Court's Memorandum of Decision is limited to parcel 069-K-09.

I. Findings of Fact.

Nena Tilfas was registered to parcel 189 on the 1932 Japanese map. Parcel 189 was later divided into two parcels: the waterside parcel of 069-K-09 and the mountainside parcel of 069-K-12. Nena Tilfas had several children, including the Plaintiff and Tolenna Nena. Tolenna Nena is the father of Defendant Julia E. Skilling. In the Land Commission proceedings for parcel 069-K-09, the Plaintiff

[9 FSM Intrm. 530]

was identified as a claimant for the parcel. Plaintiff appeared at the formal hearing and testified in support of his claim for parcel 069-K-09. Plaintiff personally claimed ownership of parcel 069-K-09 at the formal hearing.

The Kosrae State Land Commission rejected Plaintiff's claim for parcel 069-K-09 and issued the Determination of Ownership in favor of Defendant Julia Eden Skilling on March 29, 1985. The Plaintiff was not served a copy of the Determination of Ownership for parcel 069-K-09. The Certificate of Title for parcel 069-K-09 was issued in favor of Defendant Julia Eden Skilling on October 25, 1988. Defendant Julia Skilling began construction of a house on parcel 189. This lawsuit followed.

II. Legal Analysis

As a general rule, a Torrens system land registration Certificate of Title is, by statute, prima facie evidence of ownership stated therein as against the world, and conclusive upon all persons who had notice and those claiming under them. However, when a person has asserted a claim to the land and was not given notice of the registration proceedings as required by law, the Determination of Ownership and the Certificate of Title for that land is not conclusive as upon him.Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Here, the Plaintiff had asserted a claim to parcel 069-K-09. Plaintiff was identified as a claimant early in the Land Commission proceedings and also testified in support of his claim at the formal hearing. Plaintiff was not served a copy of the Determination of Ownership for parcel 069-K-09. Therefore, that Determination of Ownership is not conclusive upon him.

In land cases, statutory notice requirements must be followed. Failure to serve actual notice on a claimant is a denial of due process and violation of law. Due to the violations of the statutory notice requirement, Determinations of Ownership and Certificates of Title will be set aside as void. Sigrah, 9 FSM Intrm. at 95. Kosrae State Code, Sections 11.613 and 11.609(1)(c)(1), require personal service of the Determination of Ownership upon all parties shown by the preliminary inquiry to have an interest in the parcel. Kosrae State Law requires that the Determination of Ownership for parcel 069-K-09 be served upon the Plaintiff, who had shown an interest in the parcel. Plaintiff was not served the Determination of Ownership as required by law. Due to the violations of the statutory notice requirement, the Determination of Ownership and the Certificate of Title for parcel 069-K-09, issued to Julia Eden Skilling, are vacated and set aside as void.

III. Order of Remand

This matter is now remanded to the Kosrae State Land Commission to again issue and serve the Determination of Ownership for parcel 069-K-09 in accordance with statutory requirements and this Memorandum of Decision. The Determination of Ownership shall be issued and served within 30 days of service of this Memorandum and Order.


	KOSRAE STATE COURT TRIAL DIVISION Cite as Nena v. Heirs of Nena , 9 FSM Intrm. 528 (Kosrae S. Ct. Tr. 2000) [9 FSM Intrm. 528] SHREW NENA, Plaintiff, vs. HEIRS OF TOLENNA NENA and JULIA E. SKILLING, Defendants. CIVIL ACTION NO. 54-99 MEMORANDUM OF DECISION; ORDER OF REMAND Aliksa B. Aliksa Associate Justice Trial: July 3, 2000 Decided: July 24, 2000 APPEARANCES: For the Plaintiff: Akiyusi Palsis, trial counselor P.O. Box 224 Lelu, Kosrae FM 96944 For the Defendants: Albert Welly, trial counselor P.O. Box 187 Lelu, Kosrae FM 96944 * * * * HEADNOTES Property ) Certificate of Title As a general rule, a Torrens system land registration Certificate of Title is, by statute, prima facie evidence of ownership stated therein as against the world, and conclusive upon all persons who had notice and those claiming under them. However, when a person has asserted a claim to the land and [9 FSM Intrm. 529] was not given notice of the registration proceedings as required by law, the Determination of Ownership and the Certificate of Title for that land is not conclusive as upon him. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000). Property ) Certificate of Title A Determination of Ownership is not conclusive upon a claimant who was identified early in the Land Commission proceedings and who also testified in support of his claim at the formal hearing but was not served a copy of the Determination of Ownership. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000). Constitutional Law ) Due Process ) Notice and Hearing; Property ) Certificate of Title In land cases, statutory notice requirements must be followed. Failure to serve actual notice on a claimant is a denial of due process and violation of law. Due to the violations of the statutory notice requirement, Determinations of Ownership and Certificates of Title will be set aside as void.Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000). Constitutional Law ) Due Process ) Notice and Hearing Personal service of the Determination of Ownership is required upon all parties shown by the preliminary inquiry to have an interest in the parcel. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000). Constitutional Law ) Due Process ) Notice and Hearing; Property ) Certificate of Title When a party, who had shown an interest in the parcel, was not served the Determination of Ownership as required by law, the parcel's Determination of Ownership and the Certificate of Title will, due to the violations of the statutory notice requirement, be vacated and set aside as void and remanded to the Land Commission to again issue and serve the Determination of Ownership for the parcel in accordance with statutory requirements. Nena v. Heirs of Nena, 9 FSM Intrm. 528, 530 (Kos. S. Ct. Tr. 2000). * * * * COURT'S OPINION ALIKSA B. ALIKSA, Associate Justice: This matter was called for trial on July 3, 2000. Akiyusi Palsis appeared for the Plaintiff. Defendants were represented by Albert Welly. The following witnesses testified: Shrew Nena for himself as Plaintiff and Hemul Nena for the Defendants. This is a case involving claims of trespass and violation of due process. Plaintiff claims he is the owner of parcel 069-K-09, and that the Land Commission proceedings with respect to this parcel were conducted in violation of due process. Plaintiff initially claimed ownership of parcel 069-K-12, but later withdrew his claim to parcel 069-K-12 in his Submission for Court Order filed on July 6, 2000. Therefore, Plaintiff's claims and this Court's Memorandum of Decision is limited to parcel 069-K-09. I. Findings of Fact. Nena Tilfas was registered to parcel 189 on the 1932 Japanese map. Parcel 189 was later divided into two parcels: the waterside parcel of 069-K-09 and the mountainside parcel of 069-K-12. Nena Tilfas had several children, including the Plaintiff and Tolenna Nena. Tolenna Nena is the father of Defendant Julia E. Skilling. In the Land Commission proceedings for parcel 069-K-09, the Plaintiff [9 FSM Intrm. 530] was identified as a claimant for the parcel. Plaintiff appeared at the formal hearing and testified in support of his claim for parcel 069-K-09. Plaintiff personally claimed ownership of parcel 069-K-09 at the formal hearing. The Kosrae State Land Commission rejected Plaintiff's claim for parcel 069-K-09 and issued the Determination of Ownership in favor of Defendant Julia Eden Skilling on March 29, 1985. The Plaintiff was not served a copy of the Determination of Ownership for parcel 069-K-09. The Certificate of Title for parcel 069-K-09 was issued in favor of Defendant Julia Eden Skilling on October 25, 1988. Defendant Julia Skilling began construction of a house on parcel 189. This lawsuit followed. II. Legal Analysis As a general rule, a Torrens system land registration Certificate of Title is, by statute, prima facie evidence of ownership stated therein as against the world, and conclusive upon all persons who had notice and those claiming under them. However, when a person has asserted a claim to the land and was not given notice of the registration proceedings as required by law, the Determination of Ownership and the Certificate of Title for that land is not conclusive as upon him.Sigrah v. Kosrae State Land Comm'n, 9 FSM Intrm. 89, 93 (Kos. S. Ct. Tr. 1999). Here, the Plaintiff had asserted a claim to parcel 069-K-09. Plaintiff was identified as a claimant early in the Land Commission proceedings and also testified in support of his claim at the formal hearing. Plaintiff was not served a copy of the Determination of Ownership for parcel 069-K-09. Therefore, that Determination of Ownership is not conclusive upon him. In land cases, statutory notice requirements must be followed. Failure to serve actual notice on a claimant is a denial of due process and violation of law. Due to the violations of the statutory notice requirement, Determinations of Ownership and Certificates of Title will be set aside as void. Sigrah, 9 FSM Intrm. at 95. Kosrae State Code, Sections 11.613 and 11.609(1)(c)(1), require personal service of the Determination of Ownership upon all parties shown by the preliminary inquiry to have an interest in the parcel. Kosrae State Law requires that the Determination of Ownership for parcel 069-K-09 be served upon the Plaintiff, who had shown an interest in the parcel. Plaintiff was not served the Determination of Ownership as required by law. Due to the violations of the statutory notice requirement, the Determination of Ownership and the Certificate of Title for parcel 069-K-09, issued to Julia Eden Skilling, are vacated and set aside as void. III. Order of Remand This matter is now remanded to the Kosrae State Land Commission to again issue and serve the Determination of Ownership for parcel 069-K-09 in accordance with statutory requirements and this Memorandum of Decision. The Determination of Ownership shall be issued and served within 30 days of service of this Memorandum and Order.