THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Chipuelong v. Chuuk ,
6 FSM Intrm. 188 (Chk. S. Ct. Tr. 1993)

[6 FSM Intrm. 188]

TAMMY CHIPUELONG et al.,
Plaintiffs,

vs.

CHUUK STATE,
Defendant/Cross-Complainant,

and TAKUO PAUL et al.,
Defendants,

vs.

ANSITO WALTER et al.,
Cross-Defendants,

vs.

MITER NAKAYAMA et al.,
Intervenors.

CIVIL ACTION NO. 90-89

MEMORANDUM OF JUDGMENT

Andon L. Amaraich
Temporary Justice
Chuuk State Supreme Court

Trial:  October 5-9, 1992
Decided:  April 30, 1993

APPEARANCES:
For the Plaintiffs:               Maketo Robert, Esq.
                                            P.O. Box 211
                                            Weno, Chuuk FM  96942

For the Defendant/            Joseph Muritok
Cross-Complainant:         Deputy Attorney General
                                            Office of the Chuuk Attorney General
                                            P.O. Box 189
                                            Weno, Chuuk FM  96942

[6 FSM Intrm. 189]

For Defendants:                Hans Williander
(Paul et al.)                         Trial Counselor
                                            Weno, Chuuk FM  96942

For Cross-defendants:     Midasy Aisek
(Walter et al)                      P.O. Box 185
                                            Weno Chuuk FM  96942

For the Intervenors:           Kachuo Eko
(Nakayama et al.)              Trial Counselor
                                            Weno, Chuuk FM  96942

*    *    *    *

HEADNOTES
Statutes of Limitation
     The twenty year statute of limitation to contest land title did not take effect until 1951 so that it could not be asserted as a defense until 1971.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 194 (Chk. S. Ct. Tr. 1993).

Property ) Adverse Possession; Statutes of Limitation
     In order for an action over an interest in land to be barred by the statute of limitations, the cause of action must arise more than twenty years before the action is brought.  If the claim could have been made over twenty years before it was actually made, then the action can no longer be maintained, no matter how meritorious.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 194 (Chk. S. Ct. Tr. 1993).

Property ) Adverse Possession; Statutes of Limitation
     When 38 years have elapsed since the determination of ownership of a tract of land in the Wito Clan, when there have been public notices posted concerning the determination and concerning its later lease to the Trust Territory; two separate High Court decisions and three determinations of ownership concerning the land, and when construction activity on he land began 36 years ago; this constitutes both constructive and actual notice of the Wito Clan's claim to the land to another clan whose numerous members lived on the same small island.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 195 (Chk. S. Ct. Tr. 1993).

Custom and Tradition ) Chuuk; Property
     Patrilineal descendants ) or afokur ) have no rights to lineage land in Chuuk. They only enjoy permissive rights of usage from the members of the lineage. Mere usage of lineage land by afokur does not constitute title of any sort even if the usage lasts a lifetime.  Transfer of lineage land to any descendants of male members requires the clear agreement of the clan.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 196 (Chk. S. Ct. Tr. 1993).

Property ) Land Commission
     Land Commission procedures result in a determination of ownership wherein title to registered land is settled and declared by the government.  The certificate of title issued by the government shows the state of the title and in whom it is vested.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 196 (Chk. S. Ct. Tr. 1993).

[6 FSM Intrm. 190]

Property ) Land Commision
     Where a certificate of title issued by the Land Commission goes beyond the findings of its own determination of ownership as affirmed by the court's findings, the certificate of title is invalid to the extent that it goes beyond the determination.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 197 (Chk. S. Ct. Tr. 1993).

Custom and Tradition ) Chuuk; Property
     It is an established principle of Chuukese land tenure, that lineage land is owned by the matrilineal descendants and not by the patrilineal descendants or afokur.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 197 (Chk. S. Ct. Tr. 1993).

Property
     Where a party purchases land subject to prior liens and a lease is a prior lien noted on the title the purchase was made subject to the lease.  Chipuelong v. Chuuk, 6 FSM Intrm. 188, 198 (Chk. S. Ct. Tr. 1993).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Temporary Justice:
     This is a dispute over land.  The land at issue is Lot 036-A-07, otherwise known as "Mwanukun #1," located in Weno.  It is a lot of 5.6841 acres, all of which is used for residential purposes.  The lot is leased to the State of Chuuk by the defendants, the Wito Clan of Nepukos.  This action is to quiet title and to determine the ownership of monies paid by the Chuuk State Government for lease of the land in question.

     Mwanukun #1 is considered to be "lineage land," or land that is inherited through generations according to ancestry.  Because Chuukese custom and tradition adheres to matrilineal descent, the land is passed down along the line of the mother.  So it is with Mwanukun #1 which descended from two sisters, Esecho and Reta of Nepukos and is now controlled by the defendants.

I.  PARTIES
     The plaintiffs are the descendants of Reta.  They re represented by Mr. Mike Marcus.  They claim that Mwanukun #1 belonged to both Reta and Esecho and that, therefore, they as the descendants of Reta are co-owners of the land.  Thus, they seek to quiet title in themselves for half of the interest in Mwanukun #1. Plaintiffs also claim entitlement to a lump sum payment of $22,306.00 to be paid by the defendant/cross-complainant Chuuk State for the leasing of Mwanukun #1. Finally, plaintiffs claim that the sales of certain sub-lots to cross-defendants in this matter were invalid, because the plaintiffs' consent to the sales was not obtained.

     The defendants are the current owners of Mwanukun #1.  They are members of the lineage of the Wito Clan of Nepukos (hereinafter "the Wito Clan"), descendants of Esecho and headed by Takauo Paul.1  They claim that the plaintiffs are not matrilineal members of the Wito Clan and

[6 FSM Intrm. 191]

instead are only "afokur"2 with permissive rights of usage.  Therefore, defendants contend that plaintiffs have no ancestral rights to Mwanukun #1 and consequently no right to the rent.  Defendants have counter-claimed for damages for plaintiffs' willful interference with the enjoyment of their property.

     The defendant/cross-complainant Chuuk State Government (hereinafter "the Government") leases Mwanukun #1 from the Wito Clan, pursuant to a lease agreement entered into in 1984.  Under this agreement, a lump sum of $29,272.94 was paid by the Government to the Wito Clan in 1985, and another lump sum of $22,306.00 was due on July 10, 1989.  It is this second payment in which the plaintiffs are claiming an interest.

     The cross-defendants are a group of deed holders of certain sub-lots on Mwanukun #1.  These sub-lots were purchased from the defendants after the defendants entered into the lease agreement with the Government.  Therefore, the cross-defendants own the sub-lots in fee simple subject to the Government's rights under the lease.  Hence, the Government interpled the cross-defendants as parties with a similar interest as plaintiffs in the second lump sum rental payment by the Government.

     A motion to intervene was made by Mrs. Miter H. Nakayama of the Sapunupi Clan of Weno on behalf of said clan.  Mrs. Nakayama claimed that neither plaintiffs nor defendants were the rightful owners of Mwanukun #1; rather, the land belonged to the Sapunupi Clan as a "spoil of war" originally won by Intervenors' ancestors.  For reasons outlined below, Mrs. Nakayama's motion to intervene was denied.

II.  FACTS
     Originally, Mwanukun #1 was owned by Nolap of the Sapunupi Clan of Nepukos.3  Sometime during or before the Japanese administration, Nolap conveyed title to his daughters Esecho and Reta as a joint tenancy.  Before the two sisters passed away, they each conveyed title to their respective children to own jointly as "Fonuelap" or "lineage land" in accordance with the Chuukese land tenure system.  See In re Dispute of Ownership Over Mwanukun #1, Adjudication by Truk District Land Commission at 1-2 (Feb. 23, 1983).

     Each woman had children.  Esecho had two sons and four daughters.  Reta had four sons and no daughters.  The Wito Clan was headed successively by Esecho's son Rober, Reta's son Chipuelong Satak, and Esecho's grandson Takauo Paul, son of her daughter Naimis.

     The first official determination of ownership of Mwanukun #1 was issued on October 6, 1954 by Mr. George Shumard, District Land Title Officer for Truk District in the Trust Territory of the Pacific Islands.  Mr. Shumard determined that "the tract of land known as Marukin #1 . . . is the property of . . . that lineage of the Wito Clan of Nepukos now headed by Rober and in the charge of Chipenong of that lineage."  Determination of Ownership and Release No. 36.1, Truk District, Trust Territory of the Pacific Islands, T-1 Clerk of Court Records 26 (1954).  At that time, Rober was still

[6 FSM Intrm. 192]

head of the Clan, but Chipuelong, who would succeed him, managed the property.

     On May 29, 1956, Mr. Shumard issued a certification in a claim settlement agreement entered into between Chipuelong, on behalf of the Wito Clan, and the Trust Territory.  It read:  "I certify that Chipenong was by determination number 36.1 . . . found to be the owner of the premises . . . ."  Claim Settlement Agreement No. T-36.1-A, Trust Territory of the Pacific Islands, Document 398, Land Commission Office, Moen, Truk (recorded June 6, 1956, registered June 21, 1973).  The agreement also defined as "owner" the person who "owns or controls a parcel of land . . . ."  Id.  At that time, the Trust Territory began construction of the present housing complex on Mwanukun #1, which the Chuuk State Government now uses and for which it leases the land.

     In 1962, Chipuelong sold Mwanukun #1 to Mr. Daro Malon.  This sale was made without the consent of the members of the clan, as required by Chuukese custom.  Most of the members of the clan did not become aware of this sale until several years later.  Once they learned of the sale, they voiced their disagreement with Chipuelong.  Takauo Paul, who would succeed Chipuelong, applied for a registration of ownership of Mwanukun #1 on behalf of the Wito Clan at the Land Commission on November 25, 1974.

     On January 25, 1976, the Land Commission held a hearing to determine ownership of Mwanukun #1.  It issued a decision on July 9, 1976 in favor of Daro Malon and his family.  On July 31, 1981, Takauo Paul filed a complaint in the Trust Territory High Court for a re-adjudication of the ownership of Mwanukun #1, based on error by the Land Commission in its determination.  On May 20, 1982, the Trial Division of the High Court, pursuant to its equity jurisdiction, remanded the matter back to the Land Commission for a re-adjudication.  Daro Malon appealed the Trial Division's order of remand to the Appellate Division of the High Court, which affirmed the Trial Division on November 22, 1982.

     The Land Commission issued its new determination on February 23, 1983. The new determination was signed by Senior Land Commissioner Mitaro Danis, one other commissioner, and a member of the registration team.  It ruled that Mwanukun #1 was "the property of the lineage of the Wito clan of Nepukos village," In re Dispute of Ownership Over Mwanukun #1, Adjudication by Truk District Land Commission at 5 (Feb. 23, 1983), and that, notwithstanding the language of the claim settlement agreement between Chipuelong Satak and the Trust Territory,

     the right granted to Mr. Chipuelong Satak under the Determination of Ownership No. 36.1 did not go beyond the right to manage, supervise, and control the use of the land for the lineage as normally allowed by custom or the local land tenure system, but he has no authority individually to sell it.

Id. at 4.  Therefore, the sale to Daro Malon was invalid.  The Land Commission's holding was affirmed by the Trial Division of the High Court, Justice Miyamoto, on February 29, 1984.  Mwanukun #1 was returned to the Wito Clan, and Takauo Paul succeeded Chipuelong Satak as head of the clan.

     Pursuant to the High Court's February 29, 1984 ruling, the Land Commission issued a new certificate of title for Mwanukun #1 on June 17, 1985.  This certificate explicitly stated that Lot 036-A-07 was owned in fee simple by "all the descendants of Esecho and Reta, including their children and grandchildren, headed by Takauo Paul (see attached)."  Document No. 2147, Registrar's Office, Truk District.  Attached to this certificate was a non-notarized, unsigned, un-dated, type-written paper entitled "names of the Descendants."  This paper contained two separate

[6 FSM Intrm. 193]

lists of names.  One list was entitled "Esecho"; the other was entitled "Reta."  All of the plaintiffs are included in the list entitled "Reta."  The list entitled "Esecho" contains some but not all of the Wito Clan members.  The certificate was issued by Senior Land Commissioner Mitaro Danis and one other commissioner. Commissioner Danis obtained the list from Plaintiff Mike Marcus pursuant to a request that he made to the Wito Clan for the names of the members of that clan. According to Commissioner Danis's testimony, the list was provided by Mr. Marcus "a couple of days" before the certification was issued.

     On July 9, 1984, Takauo Paul, on behalf of the Wito Clan entered into a lease agreement for Mwanukun #1 with the Chuuk State Government for fifteen years, commencing on May 11, 1984 and ending on May 10, 1999.  Consideration for the lease was $50,576.00, which the Government was to pay in two installments. The first installment of $28,269.00 was duly paid on July 10, 1984.  It was divided into shares among the clan members.  Shares were also voluntarily given to the plaintiffs, as is customary but not required.  The second installment for $22,306.00 was to be paid on or before July 10, 1989.

     From July 9, 1984, when the lease was entered into, to August 7, 1991, a series of sub-lots of Mwanukun #1 sold by the Wito Clan to various individuals who now constitute the cross-defendants in this dispute.  These purchases transferred title, as well as the encumbrance of the lease to the Government, from the Wito Clan to each of the cross-defendants.  The certificates of title for the various purchased sub-lots list the lease agreement with the Government as a lien on the land.

     Plaintiffs, including the son of Chipuelong Satak, Mr. Tammy Chipuelong, filed the present action on July 7, 1989.  The Court, Justice Marar, issued a temporary restraining order against the Government, ordering it to deposit the second installment of $22,306.00 with the Clerk of Court in escrow, where it is presently held.

III.  INTERVENTION BY THE SAPUNUPI CLAN
     A motion to intervene was filed on August 17, 1992 by Mrs. Miter Nakayama on behalf of the Sapunupi Clan of Weno (hereinafter "the Sapunupi Clan").  The Sapunupi Clan claimed that Mwanukun #1 belonged to neither plaintiffs nor to defendants but to themselves.  They alleged that Mwanukun #1 was a "spoil of war" of their ancestry and had been conveyed to the clan according to custom and tradition.  The Sapunupi Clan also claimed that the Land Commission erred in its 1983 determination of the ownership of Mwanukun #1 and provided neither adequate notice nor an opportunity to appeal the result.

     The plaintiffs, defendants and cross-defendants opposed the Sapunupi Clan's motion to intervene.  They asserted that the Sapunupi Clan's claim was barred by the statute of limitations and by the common law doctrines of adverse possession and laches.  In addition, cross-defendants moved for summary judgment against both plaintiffs and the Sapunupi Clan.

     Prior to trial, the Court disposed of the pending motions.  The Court denied the motion for summary judgment against the plaintiffs, because clear material issues of fact remained.  Regarding the Sapunupi Clan, the Court deferred ruling on the motions to intervene and for summary judgment to a separate pretrial conference.  Ultimately, the court denied the motion to intervene.  An explanation of the Court's ruling follows.

     The Sapunupi Clan's motion to intervene was opposed as untimely, and barred by the

[6 FSM Intrm. 194]

doctrines of adverse possession and laches.  Because the Court found the Sapunupi Clan's motion untimely, it did not reach the issues of adverse possession and laches.

Statute of Limitations
     The statute of limitations for actions for the recovery of land has long been and remains twenty years.  6 TTC 302(1).4  Under the Trust Territory regime, the twenty year limitation went into effect on May 28, 1951 and began to run on that date as to causes of action then existing.  See Kanser v. Pitor, 2 TTR 481 (Truk 1963) (adverse possession could not be applied in the Trust Territory until 1971 because present 20-year limitation went into effect on May 28, 1951).  See also Osaki v. Pekea, 5 TTR 255 (Truk 1970); Armaluuk v. Orruken, 4 TTR 474 (Pal. 1969); Oneitam v. Suain, 4 TTR 62 (Truk 1968).  Accordingly, the statute of limitations could be asserted as early as 1971 and can now be asserted against the Sapunupi Clan if it applies.  The Court finds that it does.

     In order for an action to be barred by the statute of limitations, the cause of action must arise more than twenty years before the action is brought.  If the claim could have been made over twenty years before it actually was made, then the action can no longer be maintained, no matter how meritorious.  Therefore, the issue concerning the motion to dismiss against the Sapunupi Clan is whether or not their cause of action arose more than twenty years before their 1992 motion to intervene.

     As stated above, the first determination of ownership of Mwanukun #1 was issued by George Shumard in 1954.  Because that determination found the land to belong to lineage of the Wito Clan and not to the Sapunupi Clan, the latter clan could have brought an action in court as early as that date.  Because 38 years have lapsed since the cause of action arose, the Sapunupi Clan's claim is presumably untimely.  The Sapunupi Clan would have to overcome this presumption of untimeliness in order to prevail.

     The Sapunupi Clan asserts as a defense that they were not aware of the Land Commission's 1983 adjudication, nor of any prior determinations of title to Mwanukun #1.  Mrs. Nakayama asserts that she was residing on Pohnpei in 1983 and received no notice of the hearing or the determination.  As for Mr. Shumard's determination, the Sapunupi Clan's Counsel argued that the

[6 FSM Intrm. 195]

Trust Territory procedure of notice was inadequate and contrary to custom.5

     The Court finds these arguments unpersuasive in view of the evidence before it.  Usage of Mwanukun #1 began as early as 1949 when the United States began administration of Truk District of the Trust Territory.  Notice of hearings regarding land ownership determinations were posted in the Moen Municipal Office and in most public offices.  When Mr. Shumard issued his 1954 determination, it was posted in the Weno Municipal Office.  When the Trust Territory leased Mwanukun #1 in 1956 from the Wito Clan, notice was given.  The signing of the Claim Settlement Agreement between Chipuelong Satak and the Trust Territory was witnessed by the "Samol," the Chief Magistrate and traditional chief of the island.  Construction on Mwanukun #1 began as early as 1956 and has continued over the years as various improvements have been made.  Two separate High Court decisions and three determinations of ownership have been issued regarding Mwanukun #1.  Yet, throughout all this legal and physical activity, the Sapunupi Clan never came forth.

     Counsel for the Sapunupi Clan stated that the Sapunupi Clan has included over 100 adult members over the past 20 years.  It is difficult to imagine how a relatively large clan on an island as small as Weno could be unaware of substantial activity on a tract of land as large as Mwanukun #1 over many years. The court finds that the Sapunupi Clan had adequate express and constructive notice of the Wito Clan's claim.  Whatever its reasons for not coming forth in the last 38 years, it cannot do so now.  The Sapunupi Clan's claim is stale and is hereby barred by law and equity.

     Furthermore, counsel for the Sapunupi Clan would have the Court overrule two previous decisions by the Trust Territory High Court which held that Mwanukun #1 belongs to the Wito Clan of Nepukos.  Yet, counsel has provided no legal authority or support for the Court to do so.  While this court is not bound by decisions of the Trust Territory High Court, absent authority to the contrary, the Court must rule those decisions res judicata with regard to the Sapunupi Clan.

     Accordingly, the Sapunupi Clan's motion to intervene is denied.

IV.  ISSUES
     The facts offered and the claims raised by all the parties present two issues which must be decided by the Court:

     A.  May patrilineal descendants or "afokur" own lineage land without the permission of the lineage, even when a certificate of title issued by the Land Commission purports to entitle them to do so?

     B.  Are the cross-defendants entitled to portions of the Government's lease payments when the sub-lots bought by the cross-defendants were already encumbered by the lease?

[6 FSM Intrm. 196]

V.  DISCUSSION
Ownership by "Afokur"
     In order to determine whether or not the plaintiffs' claimed right to Mwanukun #1 are valid, a general explanation of Chuukese land tenure is required.

     1.  Land Tenure in Chuuk
     Land tenure in Chuuk is primarily based on lineal ownership of land.  Such land, considered "lineage land," indivisibly belongs to the clan and cannot be sold or divided without the consent of the clan.  Undisputed expert testimony at trial explained that Chuukese custom defines lineage matrilineally.  Therefore, the children of a woman and the children of her daughters and female descendants are members of the lineage; whereas, the children of male descendants are not. The children of men belong to the lineage of their wives.  See also 1 Office of High Commissioner, TTPI, Land Tenure Patterns, Trust Territory of the Pacific Islands 164-65 (1958).

     Patrilineal descendants have no rights to lineage land in Chuuk.  They are "afokur" and enjoy only permissive rights of usage from the members of the lineage.  Transfer of lineage land to any descendants of male members usually requires the clear agreement of the clan.  Lus v. Totou, 1 TTR 552, 554 (Truk 1958); Nusia v. Sak, 1 TTR 446, 447 (Truk 1958).  Mere usage of lineage land by "afokur" does not constitute title of any sort, even if the usage lasts a lifetime. Nusia, 1 TTR at 447.

     2.  Land Commission Process
     The current system of land registration dates from the Trust Territory period. Title 67 of the Trust Territory Code governing land registration has been retained by the Chuuk State Code.6  It is therefore this statute which governs the procedures of the Land Commission.

     Land registration, as established by Title 67, is based on the Torrens system of land registration, whereby land ownership is conclusively evidenced and certified by the government and thereby is easy to determine.  The certificate of title issued by the government shows the state of the title and the person in whom it is vested.  Determination of title is the basic requirement of the system.  To that end, a proceeding is held whereby title is settled and declared by the government.  See 8A Thompson on Real Property 4353 (1963).

     Title 67 vests authority to register land in the Land Commission.  The Commission's statutory powers and duties include designating land to be registered, 67 TTC 104, surveying the land and establishing boundaries, 67 TTC 106, and determining title and adjudicating disputed claims through investigation, notice, and public hearings, 67 TTC 107-114.  Once the Commission completes its inquiry and conducts a public hearing, it must issue a determination of ownership, pursuant to which a certificate of title is issued.  determinations of ownership are appealable to this Court and ultimately to the Appellate Division of the Chuuk State Supreme Court.  67 TTC 115.

[6 FSM Intrm. 197]

     3.  Application
     From the history and facts of the matter, it is clear that the lineage of the Wito Clan of Nepukos is the rightful owner of Mwanukun #1.  The question is whether the plaintiffs belong to this clan or have any title to the land.  Plaintiffs are the descendants of Reta of Nepukos.  Specifically, they are the children of Reta's sons Chipuelong, Samon, Eniap, and Marcus.  According to the traditional system of lineage, they are patrilineal descendants of Reta and therefore must be considered "afokur."  As such, the plaintiffs are not members of the Wito Clan and the evidence clearly indicates that they were never made members of the clan.  Thus, they retain no rights to Mwanukun #1 other than those granted to them by the Wito Clan.

     The central cause of this dispute lies with the Land Commission.  The Commission on February 23, 1983 issued its determination that Mwanukun #1 belonged to the lineage of that Wito Clan of Nepukos, which was affirmed by the High Court.  The Commission then issued a certificate of title pursuant to its own determination and the High Court ruling, but the Commission's certificate went beyond the findings of its determination.  Specifically, the Commission changed the language of ownership from "the lineage of the Wito Clan" to "all the children of Esecho and Reta, including their children and grandchildren, headed by Takauo Paul."  The change in language was made over two years after the February 23, 1983 determination.  Since the new language included "afokur," it gave title to non-members of the clan and thus exceeded the findings of the Commission.  Although the Commission did attempt to obtain a definitive list of the Wito Clan members, it apparently satisfied itself with a list provided by the plaintiffs, without verifying its accuracy with Takauo Paul, head of the Wito Clan. It is this error by the Land Commission in issuing the certificate of title which created the false expectation in the plaintiffs of a right of title.

     While the plaintiffs may sincerely believe that they have a right of title pursuant to the certificate, I cannot uphold this right in view of the Land Commission's error.  To do so would contravene an established principle of Chuukese land tenure, that lineage land is owned by the matrilineal descendants and not by the patrilineal descendants or "afokur."  Therefore, I hold that the plaintiffs have no title to Mwanukun #1 and have no legal right to any portion of the lease payment by the Government.  The certificate of title to Lot 036-A-07, issued by the Land Commission on June 17, 1985 is hereby ruled invalid to the extent that it applies to the plaintiffs and to all descendants of Reta of Nepukos.

     For the same reasons, plaintiffs' claim that the sales to the cross-defendants were invalid must also fail.

     Regarding the Wito Clan's counter-claim, in view of the fact that the Plaintiff's action was caused by the Land Commission's error in issuing the certificate of title, I do not find Plaintiff's conduct to have been "wilful and wanton" of the sort alleged by the Wito Clan.  The Land Commission led the plaintiffs to believe that they had an entitlement which they in fact do not have.  Justice requires that the plaintiffs not be penalized for a misunderstanding which they did not cause. Wherefore, the Wito Clan's counter-claim for damages is denied.

Cross-Defendants' Entitlement
     The cross-defendants claim an entitlement to some portion of the second lease payment made by the Government to the Wito Clan.  An examination of the evidence offered by the cross-defendants show that the purchased sub-lots of Mwanukun #1 were acquired by them after the Wito Clan had entered into the lease agreement with the Government.  The agreement was entered

[6 FSM Intrm. 198]

on July 9, 1984.  The sub-lots were purchased no earlier than November, 1988. Certificate of Title to Isiro Choram and his immediate family, Cross-Defendants' Ex. C.  The certificates presented by the cross-defendants all convey title "subject, however, to the estates, liens, charges, and encumbrances noted on the reverse thereof."  The reverse of the certificates bear the lease agreement as a transaction affecting the land.  Therefore, the encumbrance of the lease agreement was one which the cross-defendants acquired along with the sub-lots. The Government's right to remain on the sub-lots pursuant to its prior lease with the Wito Clan is an obligation that the cross-defendants assumed when they bought the sub-lots.

     In view of the presence of the encumbrance at the time of purchase by the cross-defendants, I find no entitlement on their behalf to the Government's lease payment.  Cross-defendants purchased encumbered land, which presumably was considered in t he purchase price.  Had the land been unencumbered, it is possible that the purchase price for the sub-lots would have been higher.  Also, had the Court not enjoined the Government's lease payment to the Wito Clan, the payment would have been made before the purchases of the sub-lots by the cross-defendants.  The Wito Clan could not have entered into the lease after selling the sub-lots since they no longer had title to those lots and could no longer commit them, much less receive payments for them.  When the lease ends on May 10, 1999, the Government may renew the lease with the cross-defendants, pursuant to the current agreement.  The cross-defendants would then receive the entire sum of that new lease.  However, they cannot receive part of the current lease payment in addition to the title that they already possess.  The cross-defendants are presumed to have received what they paid for.  They received the benefit of their bargain and are entitled to no more.

     In light of these findings, I hold that the cross-defendants are not entitled to any portions of the Government's lease payment to the Wito Clan.

V.  CONCLUSION
     The defendants, Wito Clan, are the rightful owners of Mwanukun #1 and have sole right to the payment made by the Government under the lease agreement of July 9, 1985.  The amount held in escrow by the Court, including any interest, shall be disbursed to the Wito Clan effective with this judgment.

     The Land Commission's certificate of title to parcel no. 036-A-07, issued on June 17, 1985, is stricken as invalid to the extent that it applies to the plaintiffs. The Land Commission shall issue a new certificate of title in accordance with this judgment.

     The Wito Clan's counter-claim for damages is denied.

     The cross-defendants have valid title to their respective sub-lots but have no entitlement to the lease payment made by the Government to the Wito Clan.

     The Chuuk Sate Government's rights under the lease agreement with the Wito Clan are hereby preserved.

     Parties shall bear their own costs.

*    *    *    *
 
Footnotes:
 
1.  At the beginning of trial, Mr. Takauo Paul passed away.  He was replaced as head of the clan by Mr. Rokuro Paul.
 
2.  A full discussion of the Chuukese term "afokur," which refers to patrilineal descendants, follows in section V, infra.
 
3.  The Sapunupi clan's motion to intervene indicated in parentheses that the clan was from Mwan village instead of Nepukos.
 
4.  (1)  The following actions shall be commenced only within twenty years after the cause of action accrues:
. . .

(b)  Actions for the recovery of land or any interest therein.

(2)  If the cause of action first accrued to an ancestor or predecessor of the person who presents the action, or to any other person under whom he claims, the twenty years shall be computed from the time when the cause of action first accrued.
 
6 TTC 302.  The language of 6 TTC 302 was adopted verbatim by the FSM Code and is now 6 F.S.M.C. 802, which controls actions in the state courts as well as in the FSM Supreme Court.  See also infra, note 6.
 
5.  Counsel for the Sapunupi clan argued that Mr. Shumard should have gone to Nepukos village and personally informed the village chief of the hearing.  In the absence of this personal notice, he argued, no amount of notice was adequate.
 
6.  The State Constitution's transition article provides:  "A statute in force in the State of Chuuk on the effective date of this Constitution continues in effect to the extent it is consistent with this Constitution, or until it is amended or repealed." Chk. Const. art. XV, 9.  Title 67 has neither been repealed nor amended and is presumed consistent with the Constitution.