The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-08-06

The text of the decision OF the United
States Circuit Court Of Appeals for the
Ninth Circuit in the suit brought by
the United states to compel Registrar
Charles H. Merriam to receive for
record and to record certain muniments
of title to land owned by the United
States was received in the mail yester-
day.
This decision is of very great interest,
inasmuch as it reverses Judge Dole and
annuls in large part the practical work
ings Of Act % of the Legislature of
1905, which was intended to put an
end to the copying of maps IN the office
of the Registrar of Conveyances, sub
shutting therefor the fling of the maps
themselves. The opinion is by District
Judge Hunt, who, with Circuit Judge
Gilbert and District Judge De Haven,
constituted the court.
After stating the case, Judge Hunt
gives INC oDlu1oH u Ihe court aS IOl-
lows:
Hunt, District Judge latter stating
the facts as above). The opinion of
the lower court shows that the question
there presented was whether the gov
eminent had vested right to conduct
| the condemnation proceedings in emf
nent domain, which were initiated be-
fore April 3, 1905. to final determine
ton, and to register the Judgment in
the same manner as if the act of April
3, 1905, had never been passed. 1t was
thus accepted, apparently, as a correct
premise that the new law forbade the
record of any map; and, after proceed
ing to discuss the question whether
Act No. % merely related to proce-
| dnre or destroyed vested right, it was
concluded by the learned Judge that
the United States had no vested right
of registration, and was therefore re-
stricted to the record of the order of
condemnation in words and figures
only. But as the case is presented to
us, we viii go behind the /; ssmm ID
premise, and ascertain tire scope and
meaning of Act. No. %, as applied
to maps and plans attached 20 ard
made integral parts of judgments and
conveyanees.
Under the eminent domain statutes
of Hawaii an action is commenced by
fling petition and issuing summons
thereon. The petition must contain.
among other information, description
of each and every piece of land sought
to be condemned, and must be accom-
panied by map, which shall correct
ly delineate the land sought to be con-
demned and its location. The statute.
after prescribing how sand what notice
must be given, and when judgments
must be paid, also provides as follows:
Sec. 500. Final order of condem-
nation. When all payments required
by the final judgment have been made,
the court shall make final order of con
demnation, which must describe the
property condemned and the purposes
of such condemnation. a certified copy
of which must be fled and recorded
in the Office of the registrar of con-
veyances; and thereupon the property
described shall. vest in the plaintiff. -
Rev. Laws Hawaii, 1905.
The direct language of this provision
makes it plain that the judgment must
be filed and recorded before the prop
erty vests in the plaintiff. By the use
of the adverb f'thereupon the law
fixes the time when title shall vest;
that is, when the act of fling and re-
cording the certified copy of the iudg-
ment is done, and not until then
Spangler. V. Sanborn, Colo. App. 102,
43 Pae. 905. The reason for requiring
such registry must also lie in the gen
eral rule that the judgment, unless fled
and recorded, would not create a lien
upon the realty involved. or conclude
any who were not parties to the con-
demDation proceedings. Lindsey v.
Kainana, 4 Haw. 165; Baker V. Morton,
70 q. S. $50, 20 L. Ed 262.
Farther suggestions might be made
such, for instance. as possible conse-
quences between the grantee and an
innocent third person. why protection
to title demands that a Judgment in
condemnation. as well as a deed for
realty, should be put upon the public
records; but it is unnecessary to ad-
vance them, for. in the Territory of
Hawaii, the policy of registration of
deeds is expressed by statute. which
prescribes that all deeds must be re-
corded. or they viii be void as against
subsequent purchasers without notice.
Rev. Laws Hawaii 1905. Sec. $3.50.
Viewed. therefore. from the standpoint
of obedience to literal statutory man.
date, and considering. as well, the OBJ
iects underlying recording statutes gen
orally. recording of the Judgment was
essential to that fixed right of present
or future enjoyment which obviously
the United States desired, while reg
istration of both deed and Judgment
was essential to make the government
secure in title as against subsequent
purchasers.
In constituting Act No. % we find
that its scope is narrower than the
court below held it to be. We do not
think that the several provisions of
the statute indicate that the subject
of recording judgments in condemna-
tion suits was covered by its terms. or
that the Legislature intended the act
TO be a substitute for section 500 of
the Revised Laws of Hawaii of 1905,
or that it affects the recording of con-
vevances wherein a description of the
property conveyed is included without
reference TO plats on file in the reg
istrar's Office.