*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

WILLIAM R. HANCOCK, individually and as Trustee of the 

HANCOCK AND COMPANY, INC. PROFIT SHARING TRUST, 

under trust instrument April 3, 1983, Plaintiff-Appellee,

vs.

KULANA PARTNERS, LLC, a Hawaiʻi limited liability company; 

FIDELITY NATIONAL TITLE & ESCROW OF HAWAII, INC., 

a Hawaiʻi Corporation, Defendants-Appellants.

________________________________________________________________

SCCQ-17-0000474

CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

(CIVIL NO. 13-00198 DKW-RLP)

NOVEMBER 13, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

In a federal court lawsuit, a grantor asserts that an 

escrow company’s alleged deletion of an easement from the 

Electronically Filed

Supreme Court

SCCQ-17-0000474

13-NOV-2019

08:02 AM
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

2

property description attached to a deed he executed renders the 

deed a “forged deed” that is void ab initio. The escrow company 

and the grantee, on the other hand, assert that the grantor’s 

claim sounds in fraud and is subject to, and barred by, a 

statute of limitations. They assert that the statute of 

limitations has run because the grantor is deemed to have had 

constructive notice of the allegedly modified deed upon its 

recordation. 

The United States District Court for the District of Hawaiʻi 

(“district court”) certified the following questions to this 

court:

1. Whether a claim relating to a forged deed is subject to 

the statute of limitations for fraud?

2. Whether the recording of a deed provides constructive 

notice in an action for fraud?

As it is unclear whether, under Hawaiʻi law, the underlying 

case involves a claim relating to a deed that is void ab initio 

or a claim that is subject to a statute of limitations, we 

reframe1 the questions as follows:

1. Under Hawaiʻi law, when is a deed void ab initio for 

fraud, such that a claim challenging the validity of 

the deed is not subject to a statute of limitations?

2. Under Hawaiʻi law, what statute of limitations 

applies to a claim that a deed was procured by fraud 

of the type that does not render it void ab initio?

 

1 This court may “reformulate the relevant state law questions as it 

perceives them to be, in light of the contentions of the parties.” Allstate 

Ins. Co. v. Alamo Rent-A-Car, Inc., 137 F.3d 634, 637 (9th Cir. 1998) 

(citations and quotation marks omitted). 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

3

3. Under Hawaiʻi law, when does the statute of 

limitations begin to run on a grantor’s claim that a 

deed was procured by fraud of the type that does not 

render it void ab initio: upon recordation of the 

deed or at some other point in time?2

To answer the first modified certified question, we hold 

that, under Hawaiʻi law, a deed is void ab initio for fraud, 

such that a claim challenging the validity of the deed is not 

subject to a statute of limitations, when (1) a deed is forged, 

meaning it has been falsely made, completed, endorsed, or 

altered with intent to defraud; or (2) a deed has been procured 

by “fraud in the factum,” such as when a person is fraudulently 

deceived about the nature of a document that has been signed, as 

when a document is surreptitiously substituted for signature.3 

Gonsalves v. Ikei, 47 Haw. 145, 384 P.2d 300 (1963); Adair v. 

Hustace, 64 Haw. 314, 640 P.2d 294 (1982) (abrogated on other 

grounds by Ass’n of Apartment Owners of Royal Aloha v. Certified 

Mgmt., 139 Hawaiʻi 229, 386 P.3d 866 (2016)).4

 

2 As the property at issue was not Land Court property, we also do not 

address the effect of Hawaiʻi Revised Statutes § 501-106. 

3 Under Hawaiʻi law, a party alleging fraud must prove fraud by “clear and 

convincing evidence.” See, e.g., Iddings v. Mee-Lee, 82 Hawaiʻi 1, 14, 919 

P.2d 263, 276 (1996) (“[T]he clear and convincing standard is typically used 

in civil cases involving allegations of fraud or some other quasi-criminal 

wrongdoing by the defendant.”) (citation omitted).

4

We note that the courts are split as to whether a void deed can be 

ratified. According to 26A C.J.S. Deeds § 68, “most courts hold that an 

instrument that is void by reason of defective execution may be ratified by 

the grantor, subject, however, to certain limitations as to the manner of 

ratification, as, for example, by a reacknowledgement, or the execution or a 

confirmation deed, or by a will, or by an authorization under seal to 

(continued. . .)
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

4

To answer the second modified certified question, we hold 

that, under Hawaiʻi law, the six-year “catch-all” statute of 

limitations under Hawaiʻi Revised Statutes (“HRS”) § 657-1(4) 

(2016) applies to a claim that a deed was procured by fraud of 

the type that does not render it void ab initio, e.g., fraud in 

the inducement and constructive fraud.

To answer the third modified certified question, we hold 

that the statute of limitations begins to run on a grantor’s 

claim that a deed was procured by fraud of the type that does 

not render it void ab initio when the grantor discovers, or 

reasonably should have discovered, the existence of the claim 

or the identity of the person who is liable for the claim.

 

(continued. . .)

complete and deliver the instrument, where such as is performed.” (footnotes 

omitted). Another possible manner of ratifying an unauthorized modification 

of the deed is the acceptance of benefits under the deed with full knowledge 

of the unauthorized act. See, e.g., Brock v. Yale Mortg. Corp., 287 Ga. 849, 

855 (2010) (explaining that a person whose name is forged on a deed may later 

ratify the unauthorized act where the person, with full knowledge of all the 

material facts, accepts the benefits of the unauthorized act; a person 

seeking to cancel a forged deed in equity must tender to the grantee any 

consideration received under the forged deed); Erler v. Creative Finance, 203 

P.3d 744 (Mont. 2009) (collecting cases from Florida, Georgia, and the United 

States Court of Appeals for the Eighth Circuit permitting ratification of 

void deeds and holding that “ratification of a forged deed may properly be 

considered in equity”). In this case, we need not and do not address 

whether, under Hawaiʻi law, a void deed could be ratified. 

26A C.J.S. Deeds § 68 goes on to state, however, “Some courts have held 

that a void deed, such as one that has been forged, cannot be ratified.” 

See, e.g., Beazley v. Turgeon, 772 S.W.2d 53 (Tenn. Ct. App. 1988) (affirming 

trial court’s decision voiding a deed procured by forgery and a falsified 

notary acknowledgement and holding there could be no ratification of the void 

deed because the grantor had not agreed to the exact terms set forth in the 

transaction involving the forged deed); Bellaire Kirkpatrick Joint Venture v. 

Loots, 826 S.W.2d 205, 210 (Tex. App. 1992) (“Because a forged deed is void 

ab initio, it is not subject to being revived by mere ratification.”). 

Again, we need not and do not address this issue.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

5

II. Factual Background

A. District Court Proceedings

This case involves a 2002 sale of real property from 

William R. Hancock (“Hancock”) to Kulana Partners, LLC (“KPL”). 

Hancock had allegedly agreed to include in the conveyance 

documents an easement in favor of his neighbors, Robert and 

Esther Grinpas (the “Grinpases”). The recorded conveyance 

documents, however, did not include the easement. 

In 2007, the Grinpases sued Hancock and KPL in the Circuit 

Court of the Fifth Circuit (“circuit court”). The circuit court 

rendered judgment in favor of the Grinpases and against Hancock, 

and the appeal has been before the ICA twice. Grinpas v. Kapaa 

382, CAAP-14-0000870. 

In 2013, in the United States District Court for the 

District of Hawaiʻi (“district court”), Hancock, individually and 

as trustee of the Hancock and Company, Inc. Profit Sharing 

Trust, sued KPL and the escrow company for the sale, Fidelity 

National Title & Escrow of Hawaiʻi, Inc. (“Fidelity”). He 

alleged that, after he executed the deed, Fidelity fraudulently 

modified it to delete the Grinpases’ easement, then recorded the 

deed. 

Hancock elaborated that, in August 2002, he reviewed two 

deeds at Fidelity’s Kapaʻa office: a warranty deed conveying the 

property from Hancock, individually, to Hancock as trustee, and 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

6

a trustee’s deed conveying the property from Hancock as trustee 

to KPL (“Trustee Deed”). Hancock alleged that he “identified a 

limitation in the ‘Subject To’ section of the Trustee Deed in 

Paragraph 12 that made the conveyance subject to ‘Any rights of 

the parties in possession of a portion of, or all of, said land, 

which rights are not disclosed by the public record.’” He 

alleged, “But for the existence of this in the ‘Subject To’ 

section,” he “would not have executed the deed.” Hancock went 

on to allege that Paragraph 16 of the Trustee Deed described an 

easement in the north corner of the property “at or near the 

location of the Grinpas Easement.” Hancock further alleged that 

days later, the two deeds were transmitted from Fidelity to its 

attorney. 

About a week later, on August 26, 2002, an internal 

memorandum between Fidelity’s “Loretta” and “Jeannette” advised, 

“WE NEED TO REPLACE THE SUBJECT TO PAGE ON BOTH OF THE DEEDS . . 

. THE TOGETHER WITH PARAGRAPH (ON THE TOP) IS MISSING. I 

BELIEVE THAT YOU ALREADY HAVE THE DEED AND I HAVE IT SET UP FOR 

RECORDING ON WEDNESDAY.” To Hancock, this internal memorandum 

reflected Fidelity’s “fraudulent[]” “intent to alter [Hancock’s] 

executed and notarized Deeds” to “remove the easement at 

paragraph 16 and paragraph 12 regarding unrecorded interests” 

“without the knowledge or consent of Mr. Hancock.” According to 

Hancock, the altered trustee’s deed was recorded in the Bureau 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

7

of Conveyances5 on August 28, 2002. Hancock alleged that 

“Fidelity is a fiduciary with a duty to disclose its own 

malfeasance.” He also asserted that, as a result of “fraudulent 

concealment by Fidelity and KPL,” he “did not learn of the 

forged deed until 2013.” Relevant to the certified questions 

before this court, Count I of Hancock’s Complaint sought a 

declaration that the Trustee Deed was void as “an altered 

instrument and . . . a forgery,” and to have the order declaring 

the deed void recorded in the Bureau of Conveyances. 

KPL then filed a motion to dismiss pursuant to Federal 

Rules of Civil Procedure (“FRCP”) 12(b)(1) and (6), and Fidelity 

filed its own motion for judgment on the pleadings pursuant to 

FRCP Rule 12(c). Both KPL and Fidelity characterized Hancock’s 

Complaint as an end-run around the state court judgment against 

Hancock in the Grinpas case. Both argued that the allegedly 

modified deed was publicly recorded in the Bureau of Conveyances 

in 2002; therefore, Hancock had constructive notice of any 

fraudulent conduct at that time.

6 Both KPL and Fidelity further 

argued that the applicable statute of limitations was the six-

 

5 According to Hancock, the deed was recorded only in the Bureau of 

Conveyances and not in Land Court. 

6 Fidelity also pointed out that Hancock had already testified in the 

Grinpas case that the omission of the easement in the deed was “a mistake.” 

In a later deposition (taken in 2013), Hancock testified that he realized in 

2007 that there was no express mention of the easement in the Trustee’s Deed. 

Therefore, Fidelity argued, Hancock had actual knowledge of the facts giving 

rise to his claim for relief in 2007, if not earlier, or was at least on 

inquiry notice. 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

8

year statute of limitations found in HRS § 657-1, which began to 

run in 2002 upon recordation of the deed; therefore, Hancock’s 

federal complaint, filed over eleven years after the statute of 

limitations had begun to run, was time-barred. 

In his opposition to KPL’s and Fidelity’s motions, Hancock 

appended as exhibits the 2002 Trustee’s Deed that Hancock said 

he signed, which included paragraphs 12 and 16, as well as the 

2002 Trustee’s Deed that was actually recorded in the Bureau of 

Conveyances, which is missing paragraphs 12 and 16. He also 

appended as an exhibit the internal memorandum between two 

Fidelity employees referencing a missing provision in the deed. 

In both of Hancock’s memoranda in opposition, he made the 

same points. First, as to the statute of limitations, Hancock 

argued that there is no statute of limitations on a claim that a 

forged deed is void. Hancock quoted the following passage from 

Palau v. Helemano Land Co., 22 Haw. 357, 361 (Haw. Terr. 1914), 

to support his position: “The complainant being out of 

possession is in position to, at any time, bring an action of 

ejectment and therein litigate the title to the land, including 

the question of the alleged forgery. A forged deed is void and 

passes no title.” 

Second, as to the argument that the recordation of the 

Trustee’s Deed provided Hancock with constructive notice of any 

fraud therein, Hancock counter-argued that “a forged instrument 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

9

and its record are utterly void, and its record is not 

constructive notice,” citing to Mosley v. Magnolia Petroleum 

Co., 114 P.2d 740 (N.M. 1941). 

Hancock also asked the district court to look to the Hawaiʻi 

Penal Code’s definitions of “[f]alsely alter,” “[f]orged 

instrument,” and “utter” to determine whether forgery occurred 

in this case. 

KPL and Fidelity separately filed reply memoranda in 

support of each’s motions. Both asserted that Hancock 

misconstrued the Palau decision. Fidelity asserted that Palau

was “decided long before the rise of modern pleading standards” 

(i.e., the merger of law and equity) and “dealt with the central 

question of whether a plaintiff challenging the validity of two 

deeds was required to proceed on an action at law or an action 

in equity.” Fidelity argued that the Palau court then held that 

the plaintiff did not have to bring an action in equity first in 

order to bring an action in law when it stated that the 

plaintiff “is in a position to, at any time, bring an action of 

ejectment,” which was an action at law. Fidelity contended that 

“at any time” in Palau referred “not to a statute of limitations 

(or lack thereof), but rather the availability of a particular 

form of action.” KPL interpreted Palau similarly. 

Further, KPL argued that “Palau demonstrates that claims of 

forged deeds sound in fraud,” as the complainant in that case 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

10

“requested that the deeds in question be declared ‘fraudulent 

and void.’” Therefore, KPL reiterated that the six-year statute 

of limitations for fraud (HRS § 657-1(4)) applied. 

KPL and Fidelity also argued that Hancock had constructive 

notice of any alleged fraud upon the recordation of the 

Trustee’s Deed with the Bureau of Conveyances in 2002. KPL 

noted that there is no Hawaiʻi case holding that a recorded 

document serves as constructive notice regarding actions 

predicated on fraudulent conduct when the public record itself 

constitutes evidence of the fraud; instead, KPL referred the 

court again to cases from other jurisdictions for this point of 

law. KPL and Fidelity did, however, distinguish Mosley, the 

sole case Hancock relied upon, as addressing “constructive 

notice for subsequent purchasers for value,” not constructive 

notice for purposes of determining whether the statute of 

limitations had begun to run. 

The district court granted KPL’s motion to dismiss and 

Fidelity’s motion for judgment on the pleadings. The district 

court first stated that Hancock’s claims “unmistakably sound in 

fraud”; therefore, HRS § 657-1(4)’s six-year statute of 

limitations applied. The district court footnoted its agreement 

with KPL and Fidelity’s interpretation of the Palau decision, 

noting that the case “addressed the availability of an action in 

equity or at law, and did not speak to whether a limitations 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

11

period is applicable” to forged deed claims. The district court 

also rejected Hancock’s argument that Hawaiʻi Penal Code 

definitions of forgery applied in this case. 

The district court then acknowledged that there were no 

Hawaiʻi cases addressing whether the recording of a deed serves 

as constructive notice for purposes of a fraud claim. It went 

on, however, to note that Hawaiʻi appellate courts have 

“recognized that the recording of a document gives notice to the 

general public of the conveyance,” citing Markham v. Markham, 80 

Hawaiʻi 274, 281, 909 P.2d 602, 609 (App. 1996) (holding that the 

“central purpose of recording a conveyance of real property is 

to give notice to the general public of the conveyance and to 

preserve the recorded instrument as evidence”). The district 

court therefore charged Hancock with constructive notice of the 

contents of the Trustee’s Deed upon the date it was recorded, 

August 28, 2002, and held that Hancock’s 2013 Complaint’s fraud 

claims were time-barred by the six-year statute of limitations. 

The district court also rejected Hancock’s assertion that he did 

not discover the fraudulent modification of the deed until 2013 

due to KPL and Fidelity’s fraudulent concealment. 

Judgment was entered in favor of KPL and Fidelity. Hancock 

appealed the judgment to the Ninth Circuit. 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

12

B. Ninth Circuit Proceedings

The Ninth Circuit issued a memorandum opinion stating that 

“a clarification of Hawaii law would resolve this case.” The 

Ninth Circuit then vacated the district court’s judgment and 

remanded the case to the district court with instructions to 

certify two questions to this court. The district court issued 

an order so doing, and this court agreed that the questions were 

amenable to answer. 

III. Certified Questions

This court may “answer, in its discretion . . . any 

question or proposition of law certified to it by a federal 

district or appellate court if the supreme court shall so 

provide by rule.” HRS § 602-5 (2016). Hawaiʻi Rules of 

Appellate Procedure Rule 13(a) (2000), on certified questions, 

provides the following:

When a federal district or appellate court certifies to the 

Hawaiʻi Supreme Court that there is involved in any 

proceeding before it a question concerning the law of 

Hawaiʻi that is determinative of the case and that there is 

no clear controlling precedent in the Hawaiʻi judicial 

decisions, the Hawaiʻi Supreme Court may answer the 

certified question by written opinion.

A question of law presented by a certified question is 

reviewable de novo under the right/wrong standard of review. 

Francis v. Lee Enters., Inc., 89 Hawaiʻi 234, 236, 971 P.2d 707, 

709 (1999) (citation omitted). 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

13

IV. Discussion

In their briefing of the issues before this court, the 

parties largely7 reassert the arguments made before the district 

court. As there is no need to reiterate these arguments, we 

proceed directly to answering the modified certified questions.

A. A deed is void ab initio for fraud, such that a claim 

challenging the validity of the deed is not subject to a statute 

of limitations, when (1) a deed is forged; or (2) a deed has 

been procured by fraud in the factum.

The first modified certified question asks, “Under Hawaiʻi 

law, when is a deed void ab initio for fraud, such that a claim 

challenging the validity of the deed is not subject to a statute 

of limitations?” A survey of our case law reveals that we have 

recognized void deed claims in two instances where fraud has 

been perpetrated upon a grantor: (1) a deed is forged, meaning 

the deed has been falsely made, completed, endorsed, or altered 

with intent to defraud; and (2) where the deed itself is 

procured due to fraud in the factum, such as when a person is 

 

7

Hancock, however, newly raises the argument that HRS § 456-6(b) (2013), 

governing notaries, contains no statute of limitations, as follows:

For the official misconduct or neglect of a notary public 

or breach of any of the conditions of the notary’s official 

bond, the notary and the surety on the notary’s official 

bond shall be liable to the party injured thereby for all 

the damages sustained. The party shall have a right of 

action in the party’s own name upon the bond and may 

prosecute the action to final judgment and execution.

There is no allegation in Hancock’s complaint that a notary fraudulently 

modified the deed; therefore, this argument has been waived. 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

14

fraudulently deceived about the nature of the document that has 

been signed, as when a document is surreptitiously substituted 

for signature. Under our case law, deeds executed as a result 

of this type of fraud are void ab initio. Palau, 22 Haw. at 361 

(“A forged deed is void and passes no title.”); Iaea v. Iaea, 59 

Haw. 648, 650, 586 P.2d 1015, 1017 (1978) (per curiam) 

(affirming the circuit court’s judgment that decreed a forged 

deed to be “null and void”); Kapiolani v. Mahelona, 9 Haw. 676, 

678, 680-81 (Haw. Rep. 1895) (affirming the circuit court’s 

decree cancelling a deed containing the forged signature of King 

Kalakaua); Gonsalves, 47 Haw. at 147 (“The fraud perpetrated on 

[the grantor] went to the nature of the document and not mere 

details, and therefore, all of the documents were void. . . .”). 

First, a deed is void where it is forged, meaning it has 

been falsely made, completed, endorsed, or altered with intent 

to defraud.8 See, e.g., Iaea, 59 Haw. at 650, 586 P.2d at 1017 

 

8 This definition of forgery is drawn from HRS § 708-850, which defines a 

“forged instrument” as “a written instrument which has been falsely made, 

completed, endorsed, or altered.” HRS § 708-852, titled “Forgery in the 

second degree,” makes forgery of a deed a class C felony. This court has 

previously looked to the criminal definition of “forgery” in the civil 

context. See Maui Fin. Co. v. Han, 34 Haw. 226 (Haw. Terr. 1937). In that 

case, Sarah Hong, the wife of Hong Chang Sok, signed Sok’s name as an 

endorser on a promissory note while Sok was not present. 34 Haw at 228. Sok 

could not read or write English, but Sarah could. Id. She waited until he 

returned home for his approval, but Sok did not say anything. 34 Haw. at 

229. The Territorial Supreme Court held that Sarah did not commit forgery 

because she was entirely lacking in the “specific intent to deceive another 

and prejudice him in some right.” Id. Furthermore, the Territorial Supreme 

Court held that Sok ratified his wife’s action when he remained silent after 

she sought his approval of her act. Id. 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

15

(affirming the trial court’s finding that a deed was forged 

where the plaintiff’s husband signed her name on it without her 

consent); Palau, 22 Haw. at 358 (remanding allegation that two 

different grantors’ signatures on deeds were fabricated); 

Kapiolani, 9 Haw. 676 (affirming the circuit court’s 

determination that a deed purportedly from King Kalakaua was not 

signed by him). 

Second, a deed is void where it is procured by fraud in the 

factum. Gonsalves, 47 Haw. at 147, 384 P.2d at 302. Fraud in 

the factum “goes to the nature of the document itself,” Adair, 

64 Haw. at 320 n.4, 640 P.2d at 300 n.4, where, for example, a 

grantor signs a deed fraudulently represented to be a lease. 

See also Gonsalves, 47 Haw. 145, 384 P.2d at 301 (affirming 

trial court’s order denying specific performance of a lease, 

bill of sale, and consent to mortgage, all of which were 

fraudulently procured by a real estate agent who did not 

disclose the nature of the documents to the grantor, who could 

not read English). In these circumstances, deeds are void ab 

initio and not subject to any statute of limitations.9 

 

9 We note, however, that this court previously left open the possibility 

that the defense of laches could bar a claim that a deed was procured through 

fraud in the factum. Adair, 64 Haw. at 325 (“[W]e have no doubt that laches 

may preclude an action to cancel a deed for fraud [in the factum] under 

appropriate circumstances.”). We more recently held that laches is a defense 

at law and at equity. Association of Apartment Owners of Royal Aloha, 139 

Hawaiʻi at 231, 386 P.3d at 868. As the issue is not before us, we also do 

not address whether or not adverse possession would also apply in favor of a 

(continued. . .)
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

16

Other jurisdictions have similarly held that a claim that a 

deed is void is not subject to a statute of limitations. For 

example, the Court of Appeals of New York stated, “For over a 

century, . . . a forged deed has been treated in New York as 

void ab initio. . . [A] statute of limitations cannot validate 

what is void at its inception. Therefore, a void deed is not 

subject to a statutory time bar.” Faison v. Lewis, 32 N.E.3d 

400, 407 (N.Y. 2015). The Faison court went on to observe that 

such a rule is “the prevailing approach in other jurisdictions,” 

32 N.E.3d at 405, citing, inter alia, Moore v. Smith-Snagg, 793 

So.2d 1000, 1001 (Fla. Dist. Ct. App. 2015) (per curiam) 

(“[T]here is no statute of limitations in respect to the 

challenge of a forged deed, which is void ab initio.”); and 

Thompson v. Ebbert, 160 P.3d 754, 757 (Idaho 2007) (“Because the 

lease agreement was void ab initio, it could be challenged at 

any time. . . . [The plaintiff’s] action to declare the lease 

agreement void [due to a lack of authority to lease a portion of 

the property] was not time barred.”).

 

(continued. . .)

third party who is a bona fide purchaser of a property whose chain of title 

contained a deed procured by fraud in the factum. 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

17

B. The six-year catch-all statute of limitations under HRS § 

657-1(4) applies to a claim that a deed was procured by fraud of 

the type that does not render it void ab initio, e.g., fraud in 

the inducement and constructive fraud.

The second modified certified question asks, “Under Hawaiʻi 

law, what statute of limitations applies to a claim that a deed 

was procured by fraud of the type that does not render it void 

ab initio?” 

In Hawaiʻi, there are three types of fraud recognized in the 

conveyance context: (1) fraud in the factum, (2) fraud in the 

inducement, and (3) constructive fraud. Aames Funding Corp. v. 

Mores, 107 Hawaiʻi 95, 103, 110 P.3d 1042, 1050 (2005). First, 

fraud in the factum “is fraud which goes to the nature of the 

document itself.” Id. As stated, supra, Section IV.A., a deed 

procured through fraud in the factum is void ab initio, and a 

claim challenging the validity of such a deed is not subject to 

a statute of limitations. Second, fraud in the inducement is 

“fraud which induces the transaction by misrepresentation of 

motivating factors.” 107 Hawaiʻi at 103-04, 110 P.3d at 1050-51. 

Third, constructive fraud is “characterized by the breach of 

fiduciary or confidential relationship.” 107 Hawaiʻi at 104, 110 

P.3d at 1051. 

Under Hawaiʻi precedent, the latter two fraud claims are 

governed by HRS § 657-1(4). That statute states, “The following 

actions shall be commenced within six years next after the cause 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

18

of action accrued, and not after: . . . Personal actions10 of any 

nature whatsoever not specifically covered by the laws of the 

State.”

This court has applied HRS § 657-1(4) to claims involving 

fraud. See, e.g., Au, 63 Haw. 210, 626 P.3d 173 (applying HRS § 

657-1(4) to plaintiffs’ claims that defendants fraudulently 

and/or negligently misrepresented to her that the home she 

bought from them did not have a water leak); Eastman v. McGowan, 

86 Hawaiʻi 21, 946 P.2d 1317 (1997) (applying HRS § 657-1(4) to 

plaintiffs’ claims that defendant fraudulently misrepresented to 

them that she would reconvey real property to them); cf. Small 

v. Badenhop, 67 Haw. 626, 701 P.2d 647 (1985) (engaging in a 

laches analysis, based upon finding that the analogous statute 

of limitations would be the six-year statute of limitations 

found in HRS § 657-1, to a claim involving constructive fraud). 

Therefore, we answer the second certified question, as modified, 

as follows: HRS § 657-1(4)’s six-year statute of limitations 

applies to a claim that a deed has been procured through fraud 

 

10 A “personal action” is 

an action brought for the recovery of personal property, 

for the enforcement of a contract or to recover for its 

breach, or for the recovery of damages for the commission 

of an injury to the person or property; an action for the 

recovery of a debt, or damages from the breach of contract, 

or for a specific personal chattel, or for the satisfaction 

in damages for injury to the person or property.

Au, 63 Haw. at 217, 626 P.2d at 179 (citations omitted).
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

19

of the kind that does not render it void ab initio, e.g., fraud 

in the inducement and constructive fraud. 

C. A plaintiff grantor’s claim for fraudulent modification of 

an executed deed accrues when the plaintiff grantor discovers, 

or reasonably should have discovered, the existence of the claim 

or the identity of the person who is liable for the claim.

The third modified certified question asks, “Under Hawaiʻi 

law, when does the statute of limitations begin to run on a 

grantor’s claim that a deed was procured by fraud of the type 

that does not render it void ab initio: upon recordation of the 

deed or at some other point in time?” There are conflicting 

decisions from other states as to whether the recordation of a 

conveyance document charges a party to a conveyance with 

constructive notice of any alleged fraud. See, e.g., 152 A.L.R. 

461, “Public Records as constructive notice as regards actions 

predicated upon fraudulent misrepresentation or concealment, so 

as to start the running of the statute of limitations against 

the bringing of such action” (1944 & Cum. Supp.). On one hand, 

some courts hold that, “since public records . . . of 

conveyances . . . are open to the public, everyone is bound by 

notice of their contents,” including parties to the conveyance 

themselves. Id. (citing, e.g., Blum v. Elkins, 369 S.W.2d 810, 

813-14 (Tex. App. 1963) (charging grantor with constructive 

notice of the consideration paid for the sale of grantor’s

property, once the deed was recorded)). 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

20

On the other hand, “[o]ther courts take the view that a 

public record of a conveyance of land being meant for the 

protection of possible subsequent purchasers or encumbrancers, 

only they – and not the innocent party to a fraudulent 

transaction – are bound thereby.” 152 A.L.R. 461. These courts 

reason that once a grantor has made a conveyance, the grantor is 

under no duty to examine the property records to see if fraud 

has been committed. See 152 A.L.R. 461 (citing, e.g., Gates v. 

Kansas Farmers’ Union Royalty Co., 111 P.2d 1098, 1103-04 (Kan. 

1941) (“[N]either is the recording of a deed executed by the 

owner of a property constructive notice to the grantor of the 

fact that there had been fraudulently included in the deed a 

description of property other than that which the grantor had 

intended to convey so as to start the running of the statute of 

limitations. . . . Normally an owner of the property who 

executes a deed therefor has no occasion to examine the record 

after the deed is recorded, to ascertain if a fraud has been 

committed upon him.”)). 

Some courts further consider whether the one perpetrating 

the fraud is in a fiduciary position with respect to the 

defrauded party. 152 A.L.R. 461. In cases where a fiduciary 

relationship exists, there is a “relaxed” duty to search 

property records for fraud. Id. (citing, e.g., Hutto v. 

Knowlton, 108 P. 825, 825 (Kan. 1910) (“Where fiduciary 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

21

relations exist requiring the disclosure of the true state of 

facts, there is no reason to anticipate unfaithfulness, and the 

obligation to search the record is relaxed.”)).

Hawaiʻi’s appellate courts have not yet decided whether the 

recordation of a conveyance document charges a party to the 

conveyance with constructive notice of fraud for statute of 

limitations purposes. The Hawaiʻi appellate cases concerning the 

recordation of documents as providing constructive notice deal 

primarily with constructive notice to subsequent purchasers or 

encumbrancers. See, e.g., Lathrop v. Sakatani, 111 Hawaiʻi 307, 

310, 141 P.3d 480, 483 (2006) (recordation of a lis pendens 

provides constructive notice of a lawsuit to third parties); 

Ass’n of Apartment Owners of Kukui Plaza v. City & Cty. of 

Honolulu, 7 Haw. App. 60, 70, 742 P.2d 974, 981 (1987) 

(recordation of leases placed buyers on notice that City had the 

right to acquire parking areas for municipal parking); Harada v. 

Ellis, 4 Haw. App. 439, 443, 667 P.2d 834, 838 (1983) 

(recordation of lis pendens provided constructive notice of 

counterclaim to prospective purchaser of the property).

In this case, we agree with Hancock that recordation of a 

deed does not, as a matter of law, provide constructive notice 

to the grantor that the deed was fraudulently modified after 

execution. It is true that recordation of a deed provides 

constructive notice to subsequent purchasers and encumbrancers 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

22

of the contents of the deed. See Markham, 80 Hawaiʻi at 281, 909 

P.2d at 609 (holding that the “central purpose of recording a 

conveyance of real property is to give notice to the general 

public of the conveyance and to preserve the recorded instrument 

as evidence”). We have long held, however, that “the recording 

of a deed is notice, not, as it is sometimes inaccurately said 

to the whole world, but merely to those who are bound to search 

the record.” In re Nelson, 26 Haw. 809, 820 (Haw. Terr. 1923). 

A grantor is ordinarily not duty bound to search the record of 

the completed conveyance to determine whether the documents 

filed were fraudulently modified.

Further, as Hancock points out, Fidelity occupied a 

fiduciary role with respect to the parties to the conveyance. 

See DeMello v. Home Escrow, Inc., 4 Haw. App. 41, 47, 659 P.2d 

759, 763 (1983) (“The general rule is that an escrow depository 

occupies a fiduciary relationship with the parties to the escrow 

agreement or instructions[.]”). As such, Fidelity was required 

to “comply strictly with the provisions” of the parties’ escrow 

agreement or instructions. Id. Hancock correctly alleges he 

should have been able to rely on Fidelity to faithfully record 

the deed he executed. 

The question then becomes at what point does a fraudulent 

modification claim accrue, for statute of limitations purposes? 

Hancock asserts that any statute of limitations applicable to 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

23

his case would be tolled due to Fidelity’s alleged act of 

removing two paragraphs from the deed he executed without 

disclosing the change to him. As such, Hancock claims 

fraudulent concealment of his cause of action. See Au, 63 Haw. 

at 215-16, 626 P.2d at 178 (“Fraudulent concealment involves the 

actions taken by a liable party to conceal a known cause of 

action.”). 

HRS § 657-20 (2016), titled “Extension by fraudulent 

concealment,” provides a six-year statute of limitations for 

actions under HRS chapter 657, commencing when the plaintiff 

discovers, or reasonably should have discovered, the claim or 

the identity of the person who is liable for the claim: 

If any person who is liable to any of the actions mentioned 

in this part . . . fraudulently conceals the existence of a 

cause of action or the identity of any person who is liable 

for the claim from the knowledge of the person entitled to 

bring the action, the action may be commenced at any time 

within six years after the person who is entitled to bring 

the same discovers or reasonably should have discovered, 

the existence of the cause of action or the identity of the 

person who is liable for the claim, although the action 

would otherwise be barred by the period of limitations.

The statute makes clear that the statute of limitations for 

bringing a fraudulent modification claim accrues when the 

plaintiff discovers, or reasonably should have discovered, the 

existence of the claim or the identity of the person who is 

liable for the claim. 

 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

24

V. Conclusion

To reiterate, the three questions before this court, as 

reframed, are as follows:

1. Under Hawaiʻi law, when is a deed void ab initio for 

fraud, such that a claim challenging the validity of the 

deed is not subject to a statute of limitations?

2. Under Hawaiʻi law, what statute of limitations applies 

to a claim that a deed was procured by fraud of the type 

that does not render it void ab initio? 

3. Under Hawaiʻi law, when does the statute of limitations 

begin to run on a grantor’s claim that a deed was procured 

by fraud of the type that does not render it void ab 

initio: upon recordation of the deed or at some other 

point in time? 

To answer the first modified certified question, we hold 

that, under Hawaiʻi law, a deed is void ab initio for fraud, such 

that a claim challenging the validity of the deed is not subject 

to a statute of limitations, when (1) a deed is forged, meaning 

it has been falsely made, completed, endorsed, or altered with 

intent to defraud; or (2) a deed has been procured by fraud in 

the factum, such as when a person is fraudulently deceived about 

the nature of the document that has been signed, as when a 

document is surreptitiously substituted for signature. To 

answer the second modified certified question, we hold that the 

six-year statute of limitations under HRS § 657-1(4) applies to 

claims that a deed was procured by fraud of the type that does 

not render it void ab initio, e.g., fraud in the inducement and 

constructive fraud. To answer the third modified certified 

question, we hold that the statute of limitations begins to run 
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

25

on a grantor’s claim that a deed was procured by fraud of the 

type that does not render it void ab initio when the grantor 

discovers, or reasonably should have discovered, the existence 

of the claim or the person liable for the claim, as discussed in 

this opinion.

11 

Jade Lynne Ching /s/ Mark E. Recktenwald

for appellant

Kulana Partners LLC /s/ Paula A. Nakayama

Ryan H. Engle, /s/ Sabrina S. McKenna 

Georgia Anton, and 

Eric B. Levasseur, /s/ Richard W. Pollack

pro hac vice,

for appellant /s/ Michael D. Wilson

Fidelity National Title

& Escrow of Hawaii, Inc.

Timothy Hogan

for appellee

 

11 Our opinion is limited to answering the certified questions as reframed 

by this court, and does not address alternate grounds identified in the 

federal district court’s January 10, 2014 order.