APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 09-1-0755(3))
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Reifurth, JJ.)
Defendants-Appellants Quintin Kiili, Patricia Nishiyama, and George Kiili ("Kiili Defendants"), appearing pro se, appeal from the May 12, 2010 Final Rule 54(b) Judgment and Decree, entered in favor of Plaintiff-Appellee Huelo Hui, LP ("Huelo Hui") by the Circuit Court of the Second Circuit ("Circuit Court").*fn1
On appeal of this quiet title action relating to three parcels of real property on the Island of Maui, the Kiili Defendants argue that the Circuit Court erred in granting the Huelo Hui's Motion for Partial Summary Judgment ("MPSJ") because (1) the warranty deed dated July 24, 1878 ("July 1878 Deed"), purporting to convey Makue's, Haole's and Kanehoalani's rights in a portion of Royal Patent Grant 1142 ("Grant 1142"), is invalid, because Haole's and Kanehoalani's rights did not vest until probate of Keoho's estate, and execution of the deed predated probate; (2) on October 8, 1878, Makue testified that he and his brother Keoho "purchased 126 acres from Lot," but there is no declaration in Probate Number 883 from Makue that he and Keoho sold their 126 acres of land to T. Akanaliilii; (3) the July 1878 Deed is a "fraudulent deed" because it does not have "two seals on it"; (4) according to a July 24, 1879 mortgage deed from, among others, T. Akanaliilii to C. Brewer & Co., "Akanaliilii & Co. claimed that the land that was mortgage[d] to C. Brewer from Akanaliilii & Co. is land leased from [Makue]"; and (5) it is unclear whether Haole and Kanehoalani were daughters or nieces of Keoho. The Kiili Defendants also argue that the Circuit Court erred by (6) "not granting appellant[s] rights to a Jury Trial." Upon careful review of the record and the briefs submitted by the parties, *fn2 and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve the Kiili Defendants' points of error as follows:
(1) The Kiili Defendants claim to be the heirs of Makue, not of Keoho, Haole, or Kanehoalani. Even if any of the signatories of the July 1878 Deed lacked conveyable title on the date of execution, this would not invalidate the deed or Makue's conveyance. The July 1878 Deed is, as the Kiili Defendants recognize, a warranty deed. "A grantor who executes a deed purporting to convey land to which he has no title or to which he has a defective title at the time of the conveyance will not be permitted, when he afterward acquires a good title to the land, to claim in opposition to his deed as against the grantee or any person claiming title under him." 23 Am. Jur. 2d Deeds § 277 (2002). Thus, "[a] deed may have the effect of passing to the grantee a title subsequently acquired by the grantor." Id.; Raines v. Walker, 77 Va. 92, 95 (1883) ("If a person conveys land with general warranty, and does not own it at the time, but afterwards acquires the same land, such acquisition enures to the benefit of the grantee.").
In other words, a warranty deed executed by a party without title is not necessarily invalid or void. Thus, whether Haole or Kanehoalani had acquired title to the land prior to execution of the July 1878 Deed is not determinative of the validity of their or Makue's conveyance. Therefore, the Kiili Defendants' argument is without merit.
Even if we were to assume for the sake of argument that actual ownership at the time a related warranty deed is executed matters, the Kiili Defendants fail to show that, under Hawaii Kingdom law, administration was required for title in real property to vest in heirs of an intestate ancestor. Under Hawaiian Kingdom law, in fact, an intestate ancestor's rights and title to real property descended to his or her heirs at the time of death. See Kaleleonalani v. Comm'rs. of Crown Lands, 6 Haw. 454, 457-58 (Haw. Kingdom 1884). This is consistent with Hawaii common law. See Serion v. Thornton, 104 Hawaii 79, 87 n.12, 85 P.3d 186, 194 n.12 (App. 2004); see also 26B C.J.S. Descent and Distribution § 83 (2011).
Section 1455 of the Kingdom Civil Code merely provided that one heir may elect to buy the other heir's interests to the land through a legal mechanism that would force the other heirs to convey their interests in exchange for a price set by a probate court's appraisal. See Compiled Laws of the Hawaiian Kingdom § 1455, at 77-78 (1884). Section 1455 does not indicate that title passes to heirs only upon administration. Furthermore, there is no indication that any of Keoho's heirs ever elected to use this procedure.
The Kiili Defendants' failed to present a dispute of material fact and, therefore, did not establish that the Circuit Court erred by granting the MPSJ.
(2) The Kiili Defendants' do not identify where in the record they raised the issue involved in their second point of error to the Circuit Court. As such, the point may be disregarded. Haw. R. App. P. 28(b)(4). In addition, our independent review finds that the issue was raised only after the Circuit Court had already orally granted the MPSJ on April 9, 2010. As such, the point is waived. HAW. REV. STAT. § 641-2 (Supp. 2012) ("The appellate court . . . need not consider a point that was not presented in the trial court in an appropriate manner."); Haw. R. App. P. 28(b)(7).
In any event, the argument is without merit as well. Huelo Hui demonstrated that Makue, along with and Keoho's heirs and their husbands, executed the July 1878 Deed. The Kiili Defendants fail to present any reason why Makue was required to testify in the probate proceedings that he had sold a portion of his interest in Grant 1142 in order to prevent that conveyance from being infirm.
(3) The Kiili Defendants cite to no statute requiring that a valid deed bear two seals, instead citing to section 1254 of the civil code, which states that: "It shall not be lawful to record any conveyance, or other instrument required by law to be stamped, unless the same shall have been previously impressed with the Royal stamp, as provided in Section 422(a)." See Compiled Laws of the Hawaiian Kingdom § 1254, at 406 (emphasis added). Section 1254 simply made explicit that an unstamped document could not lawfully be recorded in the Bureau of Conveyances.
Contrary to the Kiili Defendants' claim, according to Hawaii Kingdom case law, an unstamped document was not necessarily invalid. See Hilo Sugar Co. v. Mioshi, 8 Haw. 201, 207-08 (Haw. Kingdom 1891) ("The want of a stamp does not make the contract invalid. . . . The object of the law was to obtain revenue for the Government."). Thus, the Kiili ...