Full Opinion

Apatang v. Mundo, 4 N.M.I. 90 (1994) Maria Atalig Apatang, Plaintiff/Appellant, v. Rudolfo Mundo, Defendant/Appellee. Appeal No. 92-025 Civil Action No. 90-0836 February 22, 1994 Argued and Subm itted October 7, 1993 Counsel for appellant: Juan T. Lizam a, Saipan. Counsel for appellee: Antonio M . Atalig, Saipan. BEFO RE: DELA CRUZ, Chief Justice, VILLAGOM EZ, Justice, and BELLAS, Special Judge. DELA CRUZ, Chief Justice: The plaintiff, M aria Atalig Apatang (“M aria”), as the adm inistratrix of the estate of Juan L. Atalig (“Juan”), appeals from an adverse judgm ent entered in a land ownership dispute. The trial court found that defendant Rudolfo M undo (“M undo”) acquired ownership of the subject land located in Teteto, Rota, both by purchase and by adverse possession. For the reasons given below, we affirm the judgm ent in part and reverse it in part. I. FACTS On September 2, 1958, the Trust Territory governm ent issued land title Determ ination of Ownership 154 in the nam e of Juan’s heirs for the land which is the subject of this lawsuit (the “M ahanm ag property”). Each heir acquired an equal undivided interest. Juan died intestate in 1952 or 1953. His surviving children are Jose, M artin, Angel and Joaquin Atalig, Ana M asga and M aria Apatang. In 1965, M undo, who was Juan’s cousin, offered to purchase Angel’s interest in the M ahanm ag property for “a cow or cows.” There was conflicting evidence at trial on whether Angel accepted the offer. Angel testified that he agreed to “lease” the land to M undo for three cows. In contrast, M aria’s husband, M anuel, testified that Angel accepted the offer to sell. In 1965, M aria delivered to M undo the original of the determ ination of ownership for the property. She did so, according to her testim ony, because M undo had purchased “Angel’s share of the property.” Thereafter, M undo farm ed and partially fenced the M ahanm ag property. Angel testified at trial that M undo never delivered the cows to him. However, M undo’s son Jose disputed this testim ony. He stated that a “toru” (bull) was delivered to Angel’s brother-in-law M anuel in Rota as “paym ent for the property.” Joaquin, Jose and M artin each testified that they refused to sell their interest in the land to M undo. Ana did not recall ever being asked to sell her interest in the land. The record does not establish whether M aria was also asked to sell her interest in the M ahanm ag property to M undo. On M ay 29, 1975, M undo filed a claim of ownership to the property with the Rota Land Com m ission. M aria, on behalf of the heirs of Juan L. Atalig, filed a competing claim . Less than a m onth later, on June 26, 1975, a request for survey was prepared, but not signed, by the “Chairm an of the Rota Land Registration Team .” On the bottom of the document the following was written in Chamorro: “This land was purchased by Rudolfo A. M undo with the understanding/perm ission of Angel Atalig.” No adm inistrative resolution of this land dispute ever took place. The appellant acknowledges that M undo “used the land for more than twenty five (25) years.” Opening Brief of Appellant at 7. The trial court found that the M ahanm ag property was ow ned by “the children of Juan L. Atalig.” It also found that Angel sold his interest in the land to M undo for a “cow or cows.” And, as to the other children, M undo acquired the land by adverse possession because M undo was in “actual, open, visible, notorious, continuous and ho[s]tile possession of the M ahanm ag property” since 1965. Apatang v. Mundo, Civ. No. 90-0836 (N.M .I. Super. Ct. Aug. 25, 1992) (Decision and Order at 5-6). This appeal followed. II. ISSUES AND STANDARD OF REVIEW M aria raises two issues for our review: 1. W hether Angel sold his co-tenancy interest in the M ahanm ag property to M undo. This issue im plicates the propriety of the trial court’s findings of fact. W e therefore review for clear error. 1 CM C § 3103; Com . R. Civ. P. 52(a); Rogolofoi v. Guerrero, 2 N.M .I. 468, 476 (1992). 2. W hether M undo acquired title to the entire property by adverse possession. This issue presents a m ixed question of law and fact, and our review is de novo. Cabrera v. Cabrera, 3 N.M .I. 1, 4 (1992). III. ANALYSIS The appellant first contends that the court erred in awarding Angel’s individual ownership interest in the land to M undo. She claim s that Angel never agreed to sell the subject lot to M undo, but agreed only to “lease” or “use” it. In exchange, M undo was to give him three cows. Angel also testified that he never received any cow or cows from M undo. Thus, M undo’s claim should be rejected because he failed to satisfy their agreement. The trial court disagreed and found that Angel sold his co-tenancy interest to M undo for a “cow or cows.” Implicit in this finding is that M undo delivered the cows to M anuel as paym ent to Angel. W e will not disturb the trial court’s findings of fact unless we find clear error. 1 CM C § 3103; Com . R. Civ. P. 52(a); Rogolofoi, 2 N.M .I. at 476. The trial court was presented with evidence, albeit conflicting, from which it could reasonably conclude that there was (1) an offer by M undo to purchase the land, (2) acceptance by Angel of that offer and (3) the furnishing of consideration by M undo, i.e., a toru delivered as paym ent for the land. M undo’s use of the land since 1965 supports the trial court’s conclusion that the agreem ent was consum m ated. In review ing the record, we are not left with the “firm and definite conviction that the trial court com m itted a mistake.” Rogolofoi, 2 N.M .I. at 476. The contrary is true: the record supports the ultim ate conclusion that Angel sold his interest in the land for the toru. The trial court’s factual findings are not clearly erroneous on this issue. Therefore, its findings and conclusions on this point shall stand. The appellant’s second contention is that the trial court erred in concluding that M undo acquired the ownership interests of Juan’s other heirs by adverse possession. Our analysis of this issue entails examining the ownership interest of Juan’s heirs after his death. Juan’s heirs inherited the M ahanm ag property as tenants in com m on. See Manglona v. Kaipat, 3 N.M .I. 322, 332 (1992); Johns v. Scobie, 86 P.2d 820, 822 (Cal. 1939) (“In the present case the heirs . . . were entitled to equal shares under the laws of succession, and therefore took title as tenants in com m on”); 20 Am . Jur. 2d Cotenancy and Joint Ownership § 27 (“it is now the general rule that when an owner of real property dies intestate, his heirs take as tenants in com m on”). By acquiring Angel’s undivided interest, M undo becam e a cotenant with the other heirs with respect to the property. A tenancy in com m on “is characterized by possession or the right to possession of the com m on property. Osborn v. Warner, 694 P.2d 730, 733 (W yo. 1985) (emphasis added); see also Scobie, 86 P.2d 822-23. In an adverse possession case, the party in possession has the burden of establishing title. In re Keamo, 650 P.2d 1365, 1371 (Haw. Ct. App. 1982). W here the parties are related by blood, as here, the burden is “intensified.” See id.; Rosario v. Pelep, 8 TTR 337, 344 (App. Div. 1983). Apatang v. Mundo, 4 N.M.I. 90 (1994) W e agree with and adopt the Hawaii Suprem e Court’s articulation as to the burden a party must satisfy in order to claim title by adverse possession against a cotenant. The claimant must show: (1) “a clear intent to claim adversely;” (2) adverse possession “in fact”; and (3) “knowledge or notice of the hostile holding brought hom e to the cotenant or cotenants out of possession.” Waimea Falls Park, Inc. v. Brown, 712 P.2d 1136, 1141 (Haw. Ct. App. 1985); Keamo, 650 P.2d at 1371. Hawaii recognizes the “fiduciary” nature of the relationship between tenants in com m on. Id. Thus, the one claim ing prescriptive title must “prove” he acted in “good faith” towards the others. Id. “Actual notice” that one is claim ing against his or her cotenants also is required. Id. Constructive notice m ay suffice, but under lim ited factual circum stances not presented here. See id. W hen M undo purchased Angel’s interest in the land he becam e a tenant in com m on with Juan’s other heirs. As a tenant in com m on, M undo had a legal right to occupy and use the land. The record establishes that each of Juan’s heirs whom M undo approached, with the exception of Angel, refused to sell his or her interest in the land. M undo’s acts in fencing and raising cattle on the land were insufficient, as a matter of law, to put the other heirs (his cousin’s children) on notice of his intent to claim title adversely. “M ere possession and use” of the land by one cotenant does not by itself constitute “ouster” of the other cotenants. Osborn, 694 P.2d 730, 733. M aria’s act of giving M undo the original determ ination of ownership to the M ahanm ag property did not constitute sufficient notice to the other cotenants for purposes of M undo’s claim of adverse possession. M aria’s undisputed testim ony was that she delivered the title document only for “Angel’s share of the property.” M artin, Jose and Joaquin’s uncontradicted testim onies were that they refused to sell M undo their respective interests in the land. Under these factual circum stances, M undo did not meet his “intensified” burden of proving that the other cotenants knew of his intentions to adversely claim ow nership, to their exclusion as the other heirs. M undo’s act of filing a claim of ownership with the Land Com m ission Office on Rota in 1975 constituted the first clear notice of his adverse claim of ownership. W e hold that even if this act constituted constructive notice to Juan’s other heirs, M undo failed to satisfy the twenty-year continuous period for purposes of adverse possession. See 7 CM C § 2502(a)(2). Based on the foregoing, the trial judgm ent is AFFIRM ED IN PART, REVERSED IN PART, and REM ANDED with instructions to the Superior Court to quiet title to the M ahanm ag property (Determ ination of Ownership 154) in the nam e of Rudolpho M undo and the heirs of Juan L. Atalig, except Angel, as tenants in comm on.