OPINION
[138]*138OPINION OF THE COURT
MORROW, Chief Judge.
The petitioners filed their petition for an injunction restraining the respondent from entering upon and planting plantations upon land which they claimed had been assigned to “our two clans which land known as Toaga now located on Ofu, Manua.” During the hearing the threatened destruction of plantations developed as the issue. Petitioners are suing in behalf of themselves and the members of the Palaika clan and the Nuutai clan of the Misa family. At the hearing they claimed that the land Toaga was originally Misa land and that Misa Vaeva about 1922 divided Toaga up among three clans of the Misa family, and that these three clans were Palaika’s, of which Sauitufuga is a member, and Nuutai’s, of which Ma'laetia is a member, and Misa Poto’s of which the defendant is a member. It is undisputed that the land Toaga, which is the subject matter of this litigation, was decreed by the High Court of American Samoa to be the property of the family of Misa of the Island of Ofu in the case of Alesana and Suianoa v. Siupolu (Mrs. A. J. Ross) No. 16-1919 (H.C. Am. Samoa), the Court adjudging “that title in this land Toaga shall vest in the family of Misa, of the Island of Ofu, and that the authority and jurisdiction over this land shall be exercised by the matai, Misa.”
The respondent Misa Tusulu claims that the petitioners and those people they represent who now have plantations on the land Toaga are not members of the Misa family. We are convinced from the evidence that exactly the contrary is true.
Sauitufuga is a great-grandson of Misa Palaika. Malaetia Túfele is a grandson of losefa. The respondent claims that there never was a Misa Palaika. The fact of the matter is that Misa Yaeva who held the Misa title for more [139]*139than 40 years testified in the case of Palaika v. Misa, No. 22-1913 (H.C. Am. Samoa) that the Misas, starting from the first and continuing in the order of succession were “Misa Alefau, Misa Tuimalie, Misa Vaepala, Misa Maiava, Misa Palaika (emphasis ours), Misa Lonoga, Misa Puniuea, Misa Poto, Misa Elia and Misa Vaeva (the witness).” We do not believe that Misa Vaeva would have included Misa Palaika in the list of Misas unless Palaika had held the title. Suianoa, who was the plaintiff together with Alesana in the 1919 case, testified in that case that (iMisa Palaita (emphasis ours) married Finau, the daughter of Sootoa of Tau. They had a child name Siva my father.” Suianoa was the father of Sauitufuga who is one of the petitioners in this case. Palaika, who was a witness for Alesana in the 1919 case, testified that “Misa Maiava was the son of Misa Vaepula. Misa Palaita (emphasis ours) succeeded Misa Maiava.” Again this same witness for Alesana in the 1919 case was asked “What family did Misa Palaita (emphasis ours) belong to?” and he answered “He was the son of Muasau. After Misa Palaita (emphasis ours) then Misa Lonoga.” And this same witness was further asked “Didn’t Misa Palaita have any sons?” and he answered “We are the descendants of Misa Palaita.” The further testimony of this same witness Palaika in the 1919 case also indicates quite clearly that Nuutai was a descendant of Misa Alefua. We are also convinced from the evidence in the instant case that Nuutai and Iosefa were brothers and that Malaetia is a grandson of Iosefa. Nuutai was a lesser matai in the Misa family.
In the 1919 case it appeared that Tuimanua Elisara, then deceased, had gotten possession of the land Toaga and that his daughter Siupolu (Mrs. A. J. Ross) claimed to own it through inheritance from Elisara. Palaika testified in the 1919 case that the Misa family made an objection to Tuimanua Elisara about Elisara’s having possession of [140]*140the land Toaga. And he (Palaika) testified that he and Nuutai were present when the objection was made. Nuutai was a witness for Alesana and Suiaunoa in the 1919 case. Alesana, who was one of the plaintiffs in the 1919 case, was asked while on the witness stand “Who are the older people of your family that complained (about Elisara’s having possession of the land) in those days?” and he answered “Iosefa and Nuutai.” He was also asked “Did they hold court through Iosefa and Nuutai complaining at that time?” to which he answered “We came pretty near having a court case about it when the land was over in here and filed for registration but the reason we withdrew our complaint was because Mauga took those papers away again from the court house.”
The Court is convinced from the testimony that the descendants of Iosefa and Nuutai are members of the Misa family and that includes petitioner Malaetia, the grandson of Iosefa. We are also convinced from the evidence that Sauitufuga is a descendant of Misa Palaika, and that the people whom he is representing are likewise descendants of Misa Palaika. It follows that these descendants of Misa Palaika and the descendants of Nuutai and Iosefa are members of the Misa family. Our conclusion with respect to Sauitufuga’s being a member of the Misa family is also supported by the testimony of Misa Yaeva in the 1919 case. The testimony of Palaika in the 1919 case also supports our conclusion that both Malaetia and Sauitufuga are members of the Misa family.
Malaetia and Sauitufuga claimed that shortly after the decision in the 1919 case was rendered in 1922 Misa Vaeva went upon the land Toaga and there in the presence of members of his family not only assigned a part of the land Toaga to the branch of the family of which Sauitufuga and the people he represents are members, but also gave that branch the pule over the land assigned to it. And petition[141]*141ers also claim that at the same time Misa Vaeva likewise assigned another part of Toaga to the branch of the family of which Malaetia and the people he represents are members and that he also gave that branch the pule over the land assigned to them. Both Sauitufuga and Malaetia admit that the remaining part of Toaga was assigned to Misa Poto’s branch.
The real question at issue in this case is whether Misa Vaeva surrendered the pule over the land which he assigned to Iosefa and Uili’s branch (sometimes in the testimony called the Nuutai branch and sometimes the Nuutai and Iosefa’s branch) and to the Palaika’s branch or whether he merely assigned it to members of those branches in accordance with Samoan customs keeping the pule in himself as the matai. We think the latter. We are convinced from the evidence as a whole that the Misa Vaeva never surrendered the pule over the parts assigned to those two branches of the Misa family. We think that these two branches held the lands assigned to them in accordance with Samoan customs and that .the pule remained with Misa Vaeva. It would be most unusual for the matai to surrender the pule.
Utu, a member of the Misa family who was present when Misa Vaeva made the division and a witness for the petitioners, while testifying about such division said “I do not know what’s in the heart of Misa. The only thing Misa says this is your part, this is your part and this is your part.” In response to the question put by Judge Malepeai to the witness “Is it correct that the land known as Toaga belong to the Misa family and the title Misa, is that true?” Utu answered “Yes.” And again in response to the question “Well, now, who has the pule over the land Toaga?” Utu answered “As I have stated in my previous testimony I do not know what are the heart in Misa.
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OPINION
[138]*138OPINION OF THE COURT
MORROW, Chief Judge.
The petitioners filed their petition for an injunction restraining the respondent from entering upon and planting plantations upon land which they claimed had been assigned to “our two clans which land known as Toaga now located on Ofu, Manua.” During the hearing the threatened destruction of plantations developed as the issue. Petitioners are suing in behalf of themselves and the members of the Palaika clan and the Nuutai clan of the Misa family. At the hearing they claimed that the land Toaga was originally Misa land and that Misa Vaeva about 1922 divided Toaga up among three clans of the Misa family, and that these three clans were Palaika’s, of which Sauitufuga is a member, and Nuutai’s, of which Ma'laetia is a member, and Misa Poto’s of which the defendant is a member. It is undisputed that the land Toaga, which is the subject matter of this litigation, was decreed by the High Court of American Samoa to be the property of the family of Misa of the Island of Ofu in the case of Alesana and Suianoa v. Siupolu (Mrs. A. J. Ross) No. 16-1919 (H.C. Am. Samoa), the Court adjudging “that title in this land Toaga shall vest in the family of Misa, of the Island of Ofu, and that the authority and jurisdiction over this land shall be exercised by the matai, Misa.”
The respondent Misa Tusulu claims that the petitioners and those people they represent who now have plantations on the land Toaga are not members of the Misa family. We are convinced from the evidence that exactly the contrary is true.
Sauitufuga is a great-grandson of Misa Palaika. Malaetia Túfele is a grandson of losefa. The respondent claims that there never was a Misa Palaika. The fact of the matter is that Misa Yaeva who held the Misa title for more [139]*139than 40 years testified in the case of Palaika v. Misa, No. 22-1913 (H.C. Am. Samoa) that the Misas, starting from the first and continuing in the order of succession were “Misa Alefau, Misa Tuimalie, Misa Vaepala, Misa Maiava, Misa Palaika (emphasis ours), Misa Lonoga, Misa Puniuea, Misa Poto, Misa Elia and Misa Vaeva (the witness).” We do not believe that Misa Vaeva would have included Misa Palaika in the list of Misas unless Palaika had held the title. Suianoa, who was the plaintiff together with Alesana in the 1919 case, testified in that case that (iMisa Palaita (emphasis ours) married Finau, the daughter of Sootoa of Tau. They had a child name Siva my father.” Suianoa was the father of Sauitufuga who is one of the petitioners in this case. Palaika, who was a witness for Alesana in the 1919 case, testified that “Misa Maiava was the son of Misa Vaepula. Misa Palaita (emphasis ours) succeeded Misa Maiava.” Again this same witness for Alesana in the 1919 case was asked “What family did Misa Palaita (emphasis ours) belong to?” and he answered “He was the son of Muasau. After Misa Palaita (emphasis ours) then Misa Lonoga.” And this same witness was further asked “Didn’t Misa Palaita have any sons?” and he answered “We are the descendants of Misa Palaita.” The further testimony of this same witness Palaika in the 1919 case also indicates quite clearly that Nuutai was a descendant of Misa Alefua. We are also convinced from the evidence in the instant case that Nuutai and Iosefa were brothers and that Malaetia is a grandson of Iosefa. Nuutai was a lesser matai in the Misa family.
In the 1919 case it appeared that Tuimanua Elisara, then deceased, had gotten possession of the land Toaga and that his daughter Siupolu (Mrs. A. J. Ross) claimed to own it through inheritance from Elisara. Palaika testified in the 1919 case that the Misa family made an objection to Tuimanua Elisara about Elisara’s having possession of [140]*140the land Toaga. And he (Palaika) testified that he and Nuutai were present when the objection was made. Nuutai was a witness for Alesana and Suiaunoa in the 1919 case. Alesana, who was one of the plaintiffs in the 1919 case, was asked while on the witness stand “Who are the older people of your family that complained (about Elisara’s having possession of the land) in those days?” and he answered “Iosefa and Nuutai.” He was also asked “Did they hold court through Iosefa and Nuutai complaining at that time?” to which he answered “We came pretty near having a court case about it when the land was over in here and filed for registration but the reason we withdrew our complaint was because Mauga took those papers away again from the court house.”
The Court is convinced from the testimony that the descendants of Iosefa and Nuutai are members of the Misa family and that includes petitioner Malaetia, the grandson of Iosefa. We are also convinced from the evidence that Sauitufuga is a descendant of Misa Palaika, and that the people whom he is representing are likewise descendants of Misa Palaika. It follows that these descendants of Misa Palaika and the descendants of Nuutai and Iosefa are members of the Misa family. Our conclusion with respect to Sauitufuga’s being a member of the Misa family is also supported by the testimony of Misa Yaeva in the 1919 case. The testimony of Palaika in the 1919 case also supports our conclusion that both Malaetia and Sauitufuga are members of the Misa family.
Malaetia and Sauitufuga claimed that shortly after the decision in the 1919 case was rendered in 1922 Misa Vaeva went upon the land Toaga and there in the presence of members of his family not only assigned a part of the land Toaga to the branch of the family of which Sauitufuga and the people he represents are members, but also gave that branch the pule over the land assigned to it. And petition[141]*141ers also claim that at the same time Misa Vaeva likewise assigned another part of Toaga to the branch of the family of which Malaetia and the people he represents are members and that he also gave that branch the pule over the land assigned to them. Both Sauitufuga and Malaetia admit that the remaining part of Toaga was assigned to Misa Poto’s branch.
The real question at issue in this case is whether Misa Vaeva surrendered the pule over the land which he assigned to Iosefa and Uili’s branch (sometimes in the testimony called the Nuutai branch and sometimes the Nuutai and Iosefa’s branch) and to the Palaika’s branch or whether he merely assigned it to members of those branches in accordance with Samoan customs keeping the pule in himself as the matai. We think the latter. We are convinced from the evidence as a whole that the Misa Vaeva never surrendered the pule over the parts assigned to those two branches of the Misa family. We think that these two branches held the lands assigned to them in accordance with Samoan customs and that .the pule remained with Misa Vaeva. It would be most unusual for the matai to surrender the pule.
Utu, a member of the Misa family who was present when Misa Vaeva made the division and a witness for the petitioners, while testifying about such division said “I do not know what’s in the heart of Misa. The only thing Misa says this is your part, this is your part and this is your part.” In response to the question put by Judge Malepeai to the witness “Is it correct that the land known as Toaga belong to the Misa family and the title Misa, is that true?” Utu answered “Yes.” And again in response to the question “Well, now, who has the pule over the land Toaga?” Utu answered “As I have stated in my previous testimony I do not know what are the heart in Misa. He only divided the land among these three clans.” It is true that Utu also [142]*142testified that the pule was given to the three clans. However, Such testimony is not consistent with other parts in his testimony.
Lolomi, another witness for the petitioners who was present when the division was made, testified concerning it that “What he (Misa Vaeva) says that each clan should go and work on that part of given land to him to work and plant plantations. Another one can go to his part and the third one can go to his part. The pule remains with him.” And again in response to the question “Is your (Lolomi is a member of the Palaika branch) land a communal family land of the Misa family and also the title?” Lolomi answered “Yes, and to take care and upkeep the title of our family.” Lolomi also testified that the pule of the land passed to the three elans as did witness Utu. That testimony is inconsistent with the other parts of her testimony indicating that Misa Vaeva kept the pule when the division was made. Other witnesses testified that the pule was kept by Misa Vaeva and that the division was merely an assignment of land to family members in accordance to Samoan customs. As heretofore stated, the Court believes from the evidence that Misa Vaeva kept the pule.
The respondent Tausulu Misa apparently believes that the matai owns the family land under Samoan customs. That is not the fact. The land belongs to the family, or as it is sometimes said, to the title. It does not belong to the matai. True he has a certain control over it, a certain jurisdiction over it such as authority to assign it to members of the family for their use. But he is not the owner of it. He is merely a sort of trustee. Under Samoan customs after a matai assigns a piece of family land to members of the family for their use and they put in plantations on it they have a right to continue to use it as long as they live. And the matai has no right under Samoan customs to enter [143]*143upon the part assigned to any member of the family and destroy his plantations thereon.
We believe from the evidence that the respondent Misa Tausulu has entered upon parts of Toaga assigned by the late Misa Vaeva under Samoan' customs to the Palaika branch and to the Nuutai branch, respectively* and that he threatens to destroy plantations of members of those two branches of the Misa family thereon. He cannot lawfully destroy such plantations. He should be enjoined from any such destruction.
While we hold that Toaga is the property of the Misa title, i.e. Misa family land, and under the pule of the holder of the title in accordance with Samoan customs, at the same time we say that it is the duty of the present title holder as the matai to maintain peace and order in- the family; to get it to live together in peace and harmony and not to try to exclude certain members of the family from it because they happened to favor another candidate for the title instead of Misa Tausulu. The value of a matai to the Government depends to a considerable degree upon his capacity for promoting peace and harmony in his family.
An injunction restraining respondent Misa Tausulu from destroying or damaging plantations of members of the Palaika branch and of the Iosefa and Uili branch upon the parts of the land Toaga assigned by the late Misa Vaeva to those branches respectively will be issued.
Costs in the sum of $30.00 are hereby assessed against the parties, $7.50 to be paid by each of the petitioners Maletia F. Túfele and Sauitufuga and $15.00 by respondent Misa Tausulu, all costs to be paid within 45 days.