§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 (1920); 27 H. 544 (1923).

  Certificate of judge under this section, sufficient when.  27 H. 544, 564 (1923).

  Deed valid as between parties even if not properly acknowledged.  49 H. 62, 73, 412 P.2d 326 (1966).  See 2 H. 161, 163 (1859); 17 H. 56, 58 (1905).