JAMES W. DAVIES, Appellant, v. REPUBLIC OF LIBERIA, by and through the County Attorney of Maryland County, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued October 19, 1960. Decided December 16, 1960. 1. Lands granted as immigrant allotments, like all other public grants, are carved out of public property not otherwise allocated or disposed of. The fact that the land is unencumbered is a condition precedent upon which the President conveys the title ; hence the statute requires that the Land Commissioner should certify to that effect before the President’s signature is affixed to the deed. 2. Contractually, the grantor is bound by perpetual obligation to defend the grantee’s ownership of property transferred by deed ; and the fact that the Republic of Liberia is one of the parties does not lessen the binding effect of the terms of the contract. 3. Immigrants have the same right to possess and defend real property as any other citizen has under the Constitution ; and when such property is acquired from the public domain, either by a public land sale or immigrant deed, fee simple title to such property is thereby transferred. 4. If the President acting by reason of misrepresentation, fraud, misinformation, or concealment of facts, executes a deed to transfer property which is not within the public domain, none of his successors can legally uphold such an act ; and since each of them is under oath to enforce the laws of the Republic, it would be within their legal duty to right any wrongs done against the interest of a citizen by their predecessor in office. 5. Laches will not run against the Republic where it becomes necessary for her to file suit to fulfil her obligations under the terms of a contract, and especially where it can be shown that she has been led into breaching her obligations by deceptive acts ; nor will it run against her where ignorance of the facts prevented her from bringing the suit within the time allowed by statute. 6. There is no legal time within which the Republic might not bring an action to cancel a deed executed by misinformation, mistake, concealment of fact, or deception on part of the grantee. 7. The constitutional guarantee that no one shall be deprived of property but by judgment of his peers was never intended to protect the unlawful ownership of property. In order that this provision of the Constitution may be invoked by a citizen in the possession of his property, he must be able to show that his acquisition and possession are legitimate and that the genuineness of his title is beyond dispute. On appeal from an order of the equity division of the circuit court, cancelling an immigrant allotment deed 250 LIBERIAN LAW REPORTS executed by the then President of the Republic of Liberia in 1935, on cancellation proceedings initiated by the President of the Republic of Liberia in 1958, the order of cancellation was affirmed. D. Bartholomew Cooper for appellant. Assistant Attorney General J. Dossen Richards and 0. Natty B. Davis for appellee. MR. JUSTICE PIERRE delivered the opinion of the Court. According to the records certified from the court below, President C. D. S. King executed a public land sale deed in 1929, and thereby transferred fee simple title to ten acres of public land in Maryland County to the late Allen N. Yancy. In April, 1935, a little more than six years thereafter, President Barclay, who had succeeded President King in office, executed another deed, this time an immigrant allotment deed in favor of James W. Davies, the appellant herein, also transferring to him fee simple title of one town lot, in the same locality in which Mr. Yancy’s ten acres had been acquired six years before. It was discovered in after years, however, that the one town lot for which President Barclay had executed a deed to Mr. Davies in 1935 was a portion of the ten acres sold to Mr. Yancy in 1929. The record also reveals that Mr. Davies had occupied the town lot for some time before he requested and was given a deed in 1935; and that, in fact, he had resided thereon as far back as 1933. One would have thought that Mr. Davies’s occupation of and residence on the land had been in ignorance of Mr. Yancy’s ownership ; but a letter found in the record and which was made profert with the petitioner’s reply, and was written by Mr. Yancy in 1933–four years after he had acquired title, and two years before Mr. Davies secured his deed–convinces us 251 that Mr. Davies deliberately drew land he knew belonged to Mr. Yancy. For the benefit of this opinion, we quote the relevant portion of the Yancy letter hereunder : “DEAR MR. DAVIES, “With immense surprise I have discovered that on my property at Pleebo you have erected a house. This does not at all meet my approbation. Although I don’t know with whose permission or authority you have ventured to assume such liberty of the use of said property, yet I wish to observe that the property is mine. . . .” It is reasonable to assume that any person acting normally and in good health, and who might not have known that he had occupied or improved someone else’s property, would have regarded the contents of such a letter as proper and sufficient notice for commencement of negotiations with the owner; but Mr. Davies elected to pursue a different course, and ignored this valuable warning. After the death of Mr. Yancy, his heirs appealed to the Republic of Liberia, their grantor, and demanded that the terms of the contract to warrant and defend them in the peaceful possession of the land be fulfilled. President Tubman, who had succeeded President Barclay in office, and who was bound by the terms of the two deeds executed by his predecessors, ordered cancellation of the Davies deed on the ground that its execution by President Barclay in 1935 was an error; that it had been executed by mistake and misrepresentation ; and that the President was under a misapprehension of the true facts with respect to the status of the land at the time he signed Mr. Davies’s deed, since the property which the deed was made to cover was not a part of the public domain when it was executed. Cancellation proceedings were then instituted in the equity division of the Circuit Court of the Fourth Judicial Circuit, Maryland County, by the County Attorney, upon LIBERIAN LAW REPORTS 252 LIBERIAN LAW REPORTS instruction of the Attorney General. The instant appellant, Mr. Davies, appeared as respondent and filed an answer in which he advanced the following points : r. That according to the Constitution, no person should be deprived of property but by judgment of his peers ; therefore ejectment should have been the proper action for recovery of the land, since trial thereof would have to be by jury. That the deed executed to respondent Davies was a 2. contract, binding upon the Republic of Liberia to abide by its terms, which provided that the President, for himself and his successors in office, did give, grant and confirm unto the respondent and his heirs, etc., the town lot in question. That being so, neither party should be allowed to abrogate the contract or take advantage of his own error or mistake. 3. Respondent denied that he had in manner clandestine or fraudulent applied to the government for the land, as had been alleged in the petitioner’s bill ; and contended that President Barclay was under no misapprehension when he signed the deed in 1935. 4. Respondent also contended that the action should have been brought within three years of the execution of his deed, and that failure to have brought it within that time constituted laches since it was brought beyond the time allowed for such actions under the statute of limitations. These are the issues raised by the appellant in the court below which we have deemed necessary for our consideration. They were heard and passed upon by the lower court during the November, 1958, term, and cancellation of the deed was decreed by the judge then presiding. The respondent took exceptions, announced appeal, and has brought his case for final review on a bill of exceptions containing four counts which raise the issues listed above. Appellee’s counsel contended in argument before this LIBERIAN LAW REPORTS 253 bar that, no exceptions having been taken to any issue bearing on the last point during the trial so as to give the appellate court right to review it on appeal, the said point with others not mentioned herein, should be stricken from the respondent’s brief and not considered by the Supreme Court. We must admit that there is merit in the contention; however, because of the importance we have attached to this point, and the fact that it was raised in the respondent’s answer, we have decided to pass upon it in our review of the entire case. Before dealing with the four points of the answer which we have listed hereinabove, we think it necessary to consider the following questions : r. The President of Liberia being empowered by law to execute deeds, and thereby transfer fee simple title to real property from the public domain to citizens (1956 Code, tit. 32, � 3o), do such acts of his bind his successors in office? 2. Under the terms of warranty clause of a public land sale deed the grantor stipulates to defend the grantee in the quiet possession of the property against all persons. Could the contractual terms of such a deed, if shown to have been executed by mistake or upon misrepresentation or misinformation or fraud, be regarded as valid and binding upon the parties? 3. Where it is discovered that the deed was issued under such unusual circumstances, should the President’s order for its cancellation be regarded as reviewing or repudiating the legitimate acts of his predecessor in office? We do not hesitate to say that lands granted as immigrant allotments, like all other public grants, are carved out of public property not otherwise allocated or disposed of. The fact that the land is unencumbered is a condition precedent upon which the President conveys the title; hence the statute requires that the Land Commissioner 254 LIBERIAN LAW REPORTS should certify to that effect before the President’s signature is affixed to the deed. It is quite easy to see, therefore, that the State could not possibly grant land, the title of which had already been transferred. It is physically impossible to give what one does not have. Contractually, the grantor is bound by perpetual obligation to defend the grantee’s ownership of property transferred by deed ; and the fact that the Republic of Liberia is one of the parties, does not lessen the binding effect of the terms of the contract. Under the Constitution, we are commanded always to respect the obligations imposed by contracts ; and indeed, that is a fundamental basis of simple and honest dealing which should be respected by all men and all nations. Immigrants, such as Mr. Davies was, have the same right to possess and defend real property as any other citizen has under the Constitution; and when such property is acquired from the public domain, either by a public land sale or immigrant deed, fee simple title to such property is thereby transferred. But the rights enjoyed under an immigrant deed are not superior to those enjoyed by the holder of a public land sale deed. Both types of deed transfer the title in fee simple and, in both the President for himself and his successors in office, obligate the Republic of Liberia to defend the grantee against any person or persons claiming any part of the property. This seems to clarify the point that the President’s successors in office are bound by contractual obligation and constitutional oath to respect and enforce the terms of a contract legitimately entered into. Applying this reasoning to the instant case, we feel correct to opine that the warranty clause in Mr. Yancy’s deed should have bound every grantor successor as effectively as it bound President King who executed it in 1929. This brings us to another one of the questions which we feel called upon to consider: could the contractual terms LIBERIAN LAW REPORTS 255 of a deed executed by mistake, misrepresentation, misinformation or fraud be taken as being legally valid, and therefore binding on the parties? No contractual terms shown to have been fraudulently induced by a party who had full knowledge of the circumstances, and where the true facts were known to him, but concealed for his personal advantage, could be regarded as being morally right and therefore enforceable under the terms of any contract. “Fraud is a false representation of fact, made with a knowledge of its falsehood, or recklessly, without belief in its truth, with the intention that it should be acted upon by the complaining party, and actually inducing him to act upon it to his damage. It differs from mere misrepresentation in that it has the element of knowledge; and its most frequent example in the law of contracts is the making of false representations to induce consent to an agreement” 9 CYC. 411 Contracts. “The rule that non-disclosure of facts does not constitute fraud does not apply where there is an active concealment of facts. This is a fraud. By an active concealment is meant either (I) a representation good as far as it goes, but accompanied with such a suppression of facts as makes it convey a misleading impression, or (2) an attempt by one party to draw the other’s attention from a fact or to cover it from view. In the first case the non-disclosure has the effect of either impliedly representing that the fact concealed does not exist or of rendering the facts disclosed absolutely false. In the second case the conduct of the party, outside of an actual representation, is a fraud on the other.” 9 CYC. 413 14 Contracts. “Fraud vitiates all contracts and a deed procured by such means will be set aside. The only fraud, however, which can be pleaded at law is that which goes to the execution of the deed. So a deed cannot be set aside on the ground of fraud in procuring the same in – 256 LIBERIAN LAW REPORTS the absence of proof of facts of representations of the grantees or of their agents which were deceptive and false. Again such relief will not be granted unless the party seeking it was injured by the representations. Applying these principles, fraudulent misrepresentation or concealment of material facts in respect to the title to the property conveyed, its situation, character, quantity, or value, whether the act is that of the grantor or the grantee, may be ground for setting aside a deed. Again misrepresentation or concealment of facts inducing a hasty transfer of the property may be sufficient.” 13 CYC. 579-80 Deeds. “Generally, a deed procured through fraud perpetrated upon the grantor, even though not void at law, is voidable in equity; and as against the grantee and his privies and those chargeable with knowledge of the fraud, the grantor may elect to rescind and be restored to his original position. As has been said, upon no other ground is jurisdiction in equity so readily entertained and freely exercised as in the case of fraud. The jurisdiction of courts of equity to decree cancellation or recission of conveyances procured by fraud or false representation is well established and frequently exercised. The mere fact that the transaction has been executed does not prevent the court from annulling a deed.” 16 AM. JuR. 454-55 Deeds � 31. We feel that these principles are applicable in the instant case where misrepresentation and concealment of material facts induced the execution of the appellant’s deed. At the time when the appellant requested the President’s signature to his deed in 1935, he had already been informed two years before that the property was Mr. Yancy’s. This fact was positively alleged in the appellee’s reply, and was not denied by the appellant in the court below. Instead, the respondent has contended in his rejoinder that the Yancy letter made profert with the reply should have been filed with the bill in cancellation, LIBERIAN LAW REPORTS 257 and that this not having been done, the letter should be disregarded. The ineffectiveness of such a contention, as it might be able to negative the information contained in the letter, is only too obviously apparent; therefore we could not give it any meritorious consideration in passing upon the point. Besides, the appellant does not deny, but rather indirectly admits, that at the time of his acquisition of the land he knew it to be Mr. Yancy’s property. The establishment of this fact clarifies another point. President Barclay must have been under a complete misapprehension of the facts with respect to the status of the property, the truth of which, although known to the appellant, he either concealed or misrepresented. For, how else could he have obtained the President’s signature to a deed, which was intended to transfer title which had already been transferred two years before? The law does not allow that disadvantage should be imposed upon, or hardship practiced against anyone, growing out of the enforcement of the terms of a contract to which he was not a party. It is clear therefore, that the enforcement of the terms of the appellant’s deed should not impair the interest of Mr. Yancy, who is not shown to have either consented to its execution or to have indicated, by any act of his, that he might have given his consent thereto. On the contrary, it has been shown that he informed the appellant of his ownership of the property two years in advance of the appellant’s move to acquire title thereto. The next question for our consideration is as follows : When it is discovered that a former President had issued a deed upon wrong information or misrepresentation, would an incumbent President’s order for its cancellation be a repudiation of the legitimate act of his predecessor? Among the constitutional duties of the President, is that “he shall take care that the laws are faithfully executed.” (Constitution, Art. III section 1st.) An act performed by the President as a result of misrepresentation or fraudulent concealment of facts cannot be regarded as 258 LIBERIAN LAW REPORTS valid, since the basis upon which the President was induced to act vitiates the legitimacy of the act. Nor can a President’s correction of any acts of his predecessor, which can be shown to have been instigated or induced by fraud, misrepresentation, or concealment of facts, be regarded as a departure from the faithful execution of the laws by the President. Again, no President is under oath to violate the laws of the country; on the contrary, he swore to protect and defend the Constitution, and enforce the laws of the Republic of Liberia. So the failure to enforce any act of his predecessor which can be shown to be in violation of the statute laws of Liberia is not contrary to his oath, nor is it a review or repudiation of the lawful acts of his predecessor in office. Applying this to the instant case, the statute requires that, in order for land to be transferred from the public domain, it must first be unencumbered and not otherwise appropriated. So if the President, acting upon misrepresentation, misinformation, fraud, or concealment of facts, executes a deed to transfer property which is no longer within the public domain, none of his successors can legally uphold such an act of his; and since each of them is under oath to enforce the laws, it would be within their legal duty to right any wrong in this respect, done against the interest of a citizen by their predecessor in office. And it does appear all the more their duty to do so, since they are bound under the contractual terms of the deed to warrant and defend the grantee. Having passed upon the three questions which seemed obvious from the circumstances appearing in the record, we come now to consider the main points of issue raised in the answer and upon which the appellant has rested his defense. Our review of the three questions referred to above has also clarified two of the issues to which we would have had to address ourselves, leaving only the first and fourth for our consideration. Taking these in reverse order, we will now consider the issue of laches. LIBERIAN LAW REPORTS 259 The action is alleged to have been brought after the time allowed for such actions under the statute of limitations. The statute of limitations, being an affirmative plea, must be pleaded specially, and must be relied upon as a sufficient defense; since to plead it is to admit or confess the correctness of the plaintiff’s case, while questioning his right of recovery after the time allowed by law. In such cases, the plaintiff is said to be guilty of laches; and laches will bar a right of recovery where it can be shown that the party was under no legal disability not to have brought his action within the time allowed by statute. So, therefore, if the complaining party could not have brought the action within the statutory time, because of circumstances beyond his control, such as ignorance of the facts, laches will be excused. Bryant v. Harmon, [1954] LRSC 18; 12 L.L.R. 33o (1956). Judge Bouvier in his Law Dictionary has explained it as follows : “To constitute laches to bar a suit there must be knowledge, actual or imputable, of the facts which would have prompted action or, if there were ignorance, it must be without just excuse. . . .” BOUVIER, LAW DICTIONARY Laches (Rawle’s 3rd Rev. 1914). It was necessary, therefore, that we go back to the record, to ascertain just when it came to the appellee’s knowledge that the appellant’s deed had been executed for property already sold to Mr. Yancy. We found a letter written by the Attorney General to the County Attorney of Maryland County; and although no date appears thereon, it is shown to have been filed in the office of the clerk of court in November, 1956; and since the appellant has not claimed it to have been written earlier, we have assumed that it must have been written in that year. However, we have quoted relevant portion of the letter for the benefit of this opinion. It reads : “MR. COUNTY ATTORNEY : “I wish to acknowledge receipt of your letter, CA :993 of October 2, 1956, in which you seek advice 260 LIBERIAN LAW REPORTS as to whether or not it would, in the light of the facts outlined in your letter, be proper for the government to move for cancellation of the more recent of two deeds allegedly issued by the government for the same piece of property. “If the facts as have been represented to you are correct, then it would seem clear that, when the Government of Liberia issued the second deed, it had no title thereto, the same having already vested in the first grantee, and that the government acted in the second instance under misapprehension of the facts. “In the circumstances, the State would be authorized to petition the court for cancellation of the deed, which it issued in error.” The cancellation proceedings were filed in October, 1956, the same year in which the correspondence between the Attorney General and the County Attorney seems to have taken place. From the context of the letter quoted above, it would seem that, at no time before 1956 did the government know of the existence of two deeds both executed by the Government, for the same piece of property. In fact, the Government has not alleged such previous knowledge. According to the law we have cited above, laches could not be imputed where the petitioning party was ignorant of the existence of the facts upon which the petition to cancel is based ; that is, before the year in which the action was brought. The position we have taken, so far, with respect to laches, relates to an ordinary party, unlike this case where the Government is the appellee. “Laches cannot be imputed to one who has been justifiably ignorant of the facts creating his right, and who therefore has failed to assert it. Ignorance of the fact that defendants are invading or disputing plaintiff’s rights is the same in effect as ignorance of the right itself. Where the facts are known, ignorance of the law will not in general be a sufficient answer to the charge of laches. 261 “While the rule just stated is general, it receives its most frequent and familiar application in suits for relief on the ground of fraud, where time begins to run not from the perpetration but from the discovery of the fraud, provided the discovery is made with reasonable diligence. The remedy will be given in such cases, although the statutory period of limitations has expired.” 16 CYC. 169-170 Equity. In this case, the Republic of Liberia has petitioned the court to cancel a deed executed by the Government under misrepresentation of the facts and by mistake. In fact, the petition has alleged deception and fraud on the appellant’s part, and that he concealed the fact that he knew the land he sought to acquire from the Government, was the bona fide property of Mr. Yancy, at the time that he presented his deed for the President’s signature. There is no legal time limit within which the Government might not have brought an action to cancel a deed executed under such conditions of concealment, misrepresentation, misinformation, or even mistake. Laches will not run against the government when it becomes necessary to file suit to fulfil obligations under the terms of a contract, especially where it is shown that the government had been led into breaching her obligations by deceptive acts. “Laches on the part of its officers cannot be imputed to the government and no period of delay on the part of the sovereign power will serve to bar its right either in a court of law or equity when it sees fit to enforce it for the public benefit. . . .” BOUVIER, LAW DICTIONARY Laches (Rawle’s 3rd Rev. 1914). In considering the first point of the answer, we would like to point out that the constitutional guarantee that no one should be deprived of his property but by judgment of his peers was never intended to protect the unlawful ownership of property. We do not think it could be convincingly contended that anyone could be deprived of what he never lawfully owned. In order that this provision of the Constitution may protect a citizen in the LIBERIAN LAW REPORTS 262 LIBERIAN LAW REPORTS possession of his property, he must be able to show that acquisition and possession are legitimate, and that the genuineness of his title is beyond dispute. The Republic of Liberia could not have given Mr. Davies property she no longer owned; therefore she could not protect him in the spurious ownership of some other person’s land. Another point which was urged in the brief of the appellant is that ejectment should have been brought, since his right to lawful possession of the property would have had to be tried by jury. If ejectment had indeed been brought against him by Mr. Yancy, the deciding factor according to our law on ejectment would have been the dates of the two deeds; the older always taking preference. Mr. Yancy’s deed was clearly shown to be more than six years older than that under which Mr. Davies claims. One wonders just how he expected to recover in ejectment. It should be clear to all that the Republic of Liberia could not have disposed of land she did not have; and if she executed a deed to that effect by mistake, or upon misrepresentation, misinformation, concealment of facts, or by fraud, she had every legal right to move for its cancellation immediately the facts came to her knowledge. We are therefore of the considered opinion that the deed issued by President Barclay in 1935 to Mr. Davies, should be, and the same is ordered to be cancelled. The Circuit Court of the Fourth Judicial Circuit, Maryland County, is hereby commanded to carry out this order in keeping with the law controlling such proceedings. Affirmed.