§502-50  How made; proof if not made. 
(a)  Except as otherwise provided, to entitle any conveyance or other
instrument to be recorded, it shall be acknowledged by the person or persons
executing the same, before the registrar of conveyances, or the registrar's
deputy or before a judge of a court of record or a notary public of the State. 
If any person having executed an instrument within the State, dies, or departs
from the State, without having acknowledged the instrument, or refuses to
acknowledge it, or if the person has acknowledged it but such acknowledgment
has not been duly certified by the officer before whom made and for any reason
neither proper certification nor a new acknowledgment can be secured, the
instrument may be entered as of record on proof of its execution by a
subscribing witness thereto before the judge of the land court or a judge of a
circuit court of the State.  If all the subscribing witnesses to the conveyance
or other instrument are dead or out of the State, the same may be proved before
any court in the State by proving the handwriting of the person executing the
same and any subscribing witness.  For the purposes of this section a notary
public or person who wrongfully undertakes to act as such, may be deemed a
subscribing witness.



(b)  If there is any interlineation, erasure,
or other change in an instrument, not initialed as required by section 502-61,
and for any reason compliance with section 502-61 cannot be secured, the
instrument may be proved as provided in subsection (c), or, without the
bringing of the proceeding therein provided for, the judge of the land court or
a judge of a circuit court may certify that the instrument is entitled to be
recorded, if it is established to the judge's satisfaction that such change was
made before execution of the instrument, and the instrument thereupon shall be
received for record notwithstanding section 502-63.  If the record of any such
instrument, received for record by reason of such certificate, or a transcript
thereof, is used in evidence in any proceeding, the burden shall be on the
party relying on such record to prove that such change was made before
execution of the instrument, in any proceeding where such fact is asserted by
the party and is in dispute.



(c)  Any person interested under an instrument
which if properly proved or acknowledged would be entitled to record, may
institute a proceeding against the proper parties to obtain a judgment proving
such instrument.  The proceeding shall be brought in a circuit court or the
land court.  If the instrument affects the title to real property the
proceeding shall be brought in the judicial circuit where the property is
located.  If judgment is obtained a certified copy thereof shall be appended to
the instrument. [L 1909, c 69, §8; RL 1925, §3156; RL 1935, §5142; am L 1943, c
197, §5; RL 1945, §12742; RL 1955, §343-34; am L 1963, c 83, §3; HRS §502-50;
am L 1972, c 125, §1(d); gen ch 1985]



 



Case Notes



 



  Presumption of execution and delivery of deed proven for
record by subscribing witnesses before circuit judge, when rebutted.  25 H.
470; 27 H. 544.



  Certificate of judge under this section, sufficient when.  27
H. 544, 564.



  Deed valid as between parties even if not properly
acknowledged.  49 H. 62, 73, 412 P.2d 326.  See 2 H. 161, 163; 17 H. 56, 58.