JOHN W. DUNCAN, Appellant, v. MACDONALD M. PERRY, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 20, 1959. Decided January 14, 1960. 1. Priority of claim to title is a material element in an action of ejectment. 2. Pleadings need not expressly refer to the law relied upon therein. 3. A plaintiff in an ejectment action must rely upon proof of title in himself, and cannot prevail merely by reason of defects in the defendant’s title. 4. A plaintiff in an ejectment action is required to furnish clear and convincing proof of title. 5. Where the claim to title of a plaintiff in an ejectment action is based upon a judgment awarding title to the disputed property, the property must be designated with certainty in the judgment. 6. Where a party has filed a written application for a trial court to instruct the jury upon points of law, the charges upon such an application should ordinarily be put in writing and made part of the record. 7. Where a defendant in an ejectment action, submitted a deed to the property in question, but the trial court instructed the jury that the defendant had “no deed in court,” the instruction was prejudicial and a judgment upon the jury’s verdict in favor of the plaintiff will be reversed. 8. A verdict must show what was awarded, and must not be so uncertain that a writ of possession cannot be issued upon it. On appeal from a judgment upon verdict of a jury in favor of the plaintiff in an action of ejectment, reversed and remanded with instructions prescribing proper conduct of the proceedings below. T. Gyibli Collins for appellant. appellee. Joseph F. Dennis for MR. JUSTICE PIERRE delivered the opinion of the Court. Here is an action of ejectment in which the plaintiff alleged ownership of and fee simple title to Lot Number 112 in Sinkor, Monrovia. He traced the origin of his title back to one C. C. Burke, who sold to Isaac Alpha, and who in turn parted with title to one N. J. Crawford. In LIBERIAN LAW REPORTS 511 December, 1948, Crawford by warranty deed passed title of the property to MacDonald Perry, the plaintiff in the court below, who is appellee before us. Deeds from Burke to Alpha, from Alpha to Crawford, and from Crawford to appellee, were made profert and filed with the complaint, and appear in the records certified to us from the office of the clerk in the court below. We have checked these deeds and find that their metes and bounds agree in every detail ; we find that each of them calls for Lot Number 112, the subject of the complaint; and we also find that all three of these deeds were executed in the year 1948–one in April, one in October, and one in December. This is not unusual but it seems quite a coincidence. The defendant appeared and filed an answer. We quote Count “z” thereof, since it has direct bearing on the issue involved. It reads : “And also because defendant says he is the legal owner of Lot Number 112 by virtue of title deed herewith made profert of and marked Exhibit ‘A,’ and forming part of this answer; this parcel of land being the identical piece of land which plaintiff seeks to recover in this case. . . .” The Exhibit “A” referred to in this count, a warranty deed, was made profert and filed with the answer. This deed was executed by one Mary Simpson in August, 1931, and transferred fee simple title of a town lot, also in Sinkor, Monrovia, to the appellant. The metes and bounds of this deed begin at a point different from that shown in the three deeds of the appellee, and are also unlike them in description. Whilst the appellee’s deeds call for Lot Number iI2, this deed of the appellant calls for Lot Number 114. The appellant, having alleged his ownership of the aforesaid Lot Number 112 by virtue of a title deed made profert and filed with his answer, it appears to us that the number of his said deed should have agreed with the number of the lot which he claimed to be his in Count “z” of his answer quoted above. For, how 512 LIBERIAN LAW REPORTS could he consistently claim ownership of Lot Number 112, by virtue of a warranty deed calling for Lot Number I 14 ? It is clear, therefore, that some mistake has been made. A review of the record reveals that, in the year 1931, John Duncan, the appellant, bought a lot of land from Mary Simpson out of Block Number 114, she, the said Mary Simpson, having taken title thereto from Angela Dennis-Brown, from whom she purchased. Seventeen years after appellant had purchased this lot and occupied it, that is to say, in 1948, there seems to have been a survey of lands in the area, which occasioned a readjustment of the boundaries between the various blocks in the locality of the disputed property. If there were any doubt up to this time as to the probability of a mistake in designating the two pieces of property, one would think that the testimony of Mrs. Dennis-Brown, from whom the appellant’s grantor had taken title, would have been sufficient to establish such a possibility. It is necessary to the fair and impartial adjustment of this dispute that we quote a portion of her examination and testimony herein. On the stand she was examined as follows : “Q. Plaintiff has instituted an action of ejectment against defendant for a parcel of land which the defendant is occupying at Sinkor, Monrovia. Please state for the benefit of the court and jury, all facts within your knowledge and recollection touching said property. “A. I do know something about the two parcels of land in question. One parcel of land which Mr. Duncan now occupies was originally my land, and the parcel of land which the plaintiff, Mr. Perry, is claiming was owned by Mrs. Christiana Burke. Where Mr. Duncan is presently living is Lot Number 114; where the plaintiff, Mr. Perry, is claiming is Lot Number i 12. There is a distinct LIBERIAN LAW REPORTS 513 boundary line between the two parcels of land. . . . There is presently a road that somebody made separating the two parcels of land. To my knowledge and understanding, I would say that Mr. Duncan, the defendant, is occupying Lot Number ii4, which I have tried to explain to the plaintiff, Mr. Perry. . . .” Although witness Angela Dennis-Brown had referred to two pieces of land, and to a road forming a boundary line between them, which should have suggested the elementary method of settlement under such conditions– arbitration; and although surveyor Tarr Grimes had testified on the stand that his effort to survey, upon plaintiff’s request, the lot occupied by the defendant had been repulsed ; and still further, although it had been clearly shown that whilst the parties contended over ownership of one lot, two were actually in evidence, their deeds having appeared in the pleadings; yet, it does not appear that such a tangled state of affairs called to the Judge’s mind the necessity for having arbitrators designate the alleged two plots of land, with a view to clearing the entanglement surrounding Lot Number 112, the subject of the suit. But if anyone, even a layman, had been called upon to select preferences as to the ownership of the lot in dispute, the very fact that the defendant had been in possession upon a valid deed for seventeen years prior to plaintiff’s purchase, should have suggested consideration in favor of the older deed. Not only did the trial court ignore this very apparent and what we consider necessary principle in cases of ejectment, but the record shows that he religiously disallowed, or ruled against any testimony suggesting older title. In the examination of the plaintiff, the following question touching older title was put to him : “Q. Defendant Duncan furnished you with copy of his deed which is older than any deed in the chain of 514 LIBERIAN LAW REPORTS your title ; that is to say, the defendant acquired title in 1931, whereas you acquired title in 1948. What have you to say about this fact? [Objections] THE COURT. The court says that in the case, Massaquoi v. Lowndes, [1935] LRSC 5; 4 L.L.R. 260 (1935), the Supreme Court of Liberia held that in civil cases the court shall not allow questions to be put to a witness, raising affirmative matters not pleaded. Inspection of the answer of the defendant does not satisfy the court that these facts are raised in the written pleadings ; especially so, that of older title. On this ground, the court disallows the question.” We will refer to this point later in this opinion, with a view to ascertaining whether the principle therein as stated by the Judge could apply in the instant case. It has been held that: “A recovery by plaintiff in ejectment may be defeated by defendant showing title in himself, and it has been decided that this is so although he acquired the same subsequent to the commencement of the action . . . . Title under which defendants in possession claim may always be shown, although it may not be the better one. And the word ‘title,’ it has been held, does not necessarily mean a written title, but means any such right as is good in law to resist the title of plaintiff.” 15 CYC. 62-4 Ejectment. In view of the above-stated principles of law, the trial Judge should have given consideration to the defendant’s trend of cross-examination of the plaintiff, since not only did the plaintiff have written title in himself, but he also had older title. We are of the opinion that the legal principles which control in a particular class of cases do not necessarily have to be enunciated in the pleadings of the parties in order for them to be relied upon in conduct of cases on trial. Title, older title, and superior title have always been controlling principles in cases of ejectment, LIBERIAN LAW REPORTS 515 both in the English and American courts ; and we know of no time when they did not control decisions in cases of ejectment in the courts of Liberia. It is very strange, therefore, that the trial Judge should have ruled as he did in disallowing this very relevant question at the trial. The primary objective in suits of ejectment is to test the strength of the titles of the parties, and to award possession of the property in dispute to that party whose chain of title is so strong as to effectively negative his adversary’s right of recovery. In all such cases the plaintiff’s right of possession must not depend upon the insufficiency or inadequacy of his adversary’s claim; he must be entitled to possession of the property upon a legal foundation so firm as to admit of no doubt of his ownership of the particular tract of land in dispute. The land in dispute in this case is a lot which the appellant now occupies and occupied continuously for seventeen years before the appellee’s chain of title commenced, and which the said appellant had acquired from a source different from the appellee’s grantor. Authorities have held that, in order for a plaintiff to be able to recover title to property in ejectment, title to the particular tract of land must have been first vested in him ; and that the strength of the chain of title under which he claims, must be determined by the strength of each of the links which compose it. “Subject to certain exceptions, it is necessary in order to recover that plaintiff should have in himself a good and valid legal title or interest in the premises.” is CYC. 17-18 Ejectment. In this case, plaintiff has claimed title to Lot Number 112, and he has also exhibited a chain of title to support that allegation. The defendant, on the other hand, has claimed that he is the owner of Lot Number rI2, but the deed he exhibited to support that claim is for Lot Number 14. More than one witness has testified that the property occupied by the defendant, which he has occupied 516 LIBERIAN LAW REPORTS from 1931 up to the filing of this suit, and which is in dispute herein, is Lot Number 114, and not Lot Number 112, as he has claimed in his answer. It seems to us, therefore, that since no oral testimony could be taken to explain a written instrument–in this case the deed–some effort should have been made to locate these two lots on the plot of the City, and particularly Lot Number 112, the subject of action. Unless and until that has been done, we cannot understand how any Judge could feel satisfied that the lot occupied by the Defendant is Lot Number 112 instead of Lot Number 114 as his deed shows. The Judge’s final judgment has stated this in no uncertain terms, and we quote the relevant portion thereof for the benefit of this opinion. It reads : “It is therefore adjudged that the plaintiff recover the said piece of land, being Lot Number 112.” We have not been able to find anything in the records, which could possibly bear out this positive conclusion of the trial Judge that the lot occupied by the defendant, and which is in dispute, is actually Lot Number 112. Nowhere in the records was it ever proved where Lot Number 112 is actually located. There is some evidence, although inconclusive, as to the possibility of the premises occupied by the defendant being Lot Number 114; but all of the evidence in this case, when taken together, shows very clearly that there is uncertainty as to the proper number of the lot in dispute–that is, whether it is 112 or 114. This point is very strongly urged in Count “9” of the bill of exceptions. “The land should be designated or described with certainty sufficient to enable a writ of possession to be executed. And it has been held that the particular estate or interest should also be designated. IS CYC. 76-77 Ejectment. In the instant case, not only did the trial court make no effort to consult a map of the area, which would have cleared any and all doubts as to the proper identity of Lot LIBERIAN LAW REPORTS 517 Number ’12, but the surveyor whom the plaintiff took to the area to survey the lot in dispute was not allowed to make the survey, defendant claiming the lot to be his. It does not appear that notice was even given to residents in the area who might have property adjoining so that they might have been informed of the intended survey. The picture might have been much different if the Judge had seen the wisdom of appointing arbitrators who, after notifying landowners in the area of an impending court survey, had cited persons holding deeds for property contiguous to the lot in dispute, and then, armed with an official map, proceeded to the locality, and on the spot made a fair and intelligent survey of the area. That has been our procedure in such cases of ejectment. Coming now to the verdict, we would like to observe that it is peculiar, that the Judge omitted to reduce his charge to writing in view of the elaborate written application filed by the plaintiff, requesting him to instruct the jury on certain points of law in his charge. It is our opinion that, in order to have done justice to this request of the plaintiff, the charge should have been put in writing. And if that precaution had been taken, a subsequent reflectory accusation might have been averted. We have quoted the application herein; the document speaks for itself. It reads: “And now comes MacDonald M. Perry, plaintiff in the above-entitled cause, and asks this court to instruct the empanelled jury on the following points of law : “I. There is variance between the plea of the defendant as found in Count ‘2’ of his answer, and what he attempts to prove. In Count 4 2 7 of the answer, the defendant made the following assertions : ‘And also because defendant says he is the legal owner of Lot Number ’12 by virtue of title deed herewith made profert and marked Exhibit ‘A’ and forming a part of this answer; said parcel of land being the identical piece of land 518 LIBERIAN LAW REPORTS ” 2. which plaintiff seeks to recover in this case.’ Plaintiff submits that, despite this position as taken by the defendant, there is no evidence to show that he is the legal owner of Lot Number rI2; to the contrary, both he and his star witness Angela Dennis-Brown, testified to the defendant’s ownership of Lot Number I14, title to which said latter piece of property is not in issue before this Honorable Court. And also, on the point of expert testimony, plaintiff submits that witness F. Tarr Grimes, for the plaintiff, being a qualified surveyor, especially one who took part in the survey earmarking the plot of land owned by the Johnson heirs, of which the lot in question forms a part, his testimony should be received with weight, and greater weight than other witnesses who were called to testify and were not surveyors. And also, on the point that the plea of statute of ” limitations not having been raised by the defendant in his answer, as to how long he, the said defendant, had possession of the land in question, same should not be considered by the jury. “4. And also, on the point of admissions in pleadings, plaintiff submits that the defendant having pleaded : ‘And also because defendant says he is the legal owner of Lot Number 112 by virtue of title deed herewith made profert and marked Exhibit “A” and forming a part of this answer, said parcel of land being the identical piece of land which plaintiff seeks to recover in this case,’ as employed in Count ( 2 1 of defendant’s answer, he has thereby admitted that ( r ) he knows the parcel of land the plaintiff is claiming to be Lot Number 112; and (2) he is in possession thereof. Plaintiff submits that an admission made by a party himself or his agent acting 3� LIBERIAN LAW REPORTS 519 within the scope of his authority, is evidence against the party.” We would like to comment that the record does not show that the defendant entered any objections or exceptions, either to the application itself, or to the Judge’s failure to have written a charge thereon ; and because of the position which we have taken in this case, we will refrain from making any reference to this strange application. However, the absence of a written charge becomes significant when we refer to Count “r” of the bill of exceptions, which reads as follows : “And also because defendant positively avers that, whilst instructing the empanelled jury as to the facts submitted in evidence for their consideration in said ejectment suit, Your Honor also said, inter alia, that the defendant ‘had no deed in court’; whereas a valid deed marked Exhibit `D-2′ had been duly admitted for the defendant by Your Honor, thereby prejudicing the entire defense of the defendant. To which said remark of Your Honor the defendant excepts.” If this allegation, as contained in Count “1” of the bill of exceptions, is true, then we have no hesitancy in saying that this alleged act of the Judge could have prejudiced the interest of the defendant so as to entitle him to a new trial. The Judge, in approving the bill of exceptions did not deny such a serious charge made against him, but instead made this notation in refusing to approve Count “1” of the bill of exceptions. “No written charge requested and delivered. Not approved.” In the absence of a positive denial, the refusal to approve this count could be taken to be a refutation of the allegation ; but was that the Judge’s intention? The verdict of the jury reads : “We the undersigned petty jurors to whom the aboveentitled cause was submitted, after a careful consideration of the evidence adduced at the trial of said cause 520 LIBERIAN LAW REPORTS of action, and the law controlling, do unanimously agree that the plaintiff is entitled to recover the lawful possession of the property, Lot Number 112, situated at Sinkor, Monrovia.” We are of opinion that the verdict is inconclusive, since it is not based upon any evidence eithei designating the locality in Sinkor of Lot Number 112 to which it refers, or in any manner explaining the situation between the two numbers in relation to the property in dispute. Consequently we do not feel that a writ of possession could properly or intelligently issue for this lot, the correct number of which is so very uncertain. “Whenever a verdict is sufficiently certain to enable the court to give judgment and the sheriff to deliver possession it will be sustained. A verdict must, however, sufficiently show what was awarded to plaintiff, and must not be so uncertain that a writ of possession cannot be issued upon it; and a verdict which is not in accordance with the contention of either party is erroneous.” 15 CYC. 166 Ejectment. We deem what we have said herein and the law we have cited in support to be sufficient to justify the position which we now take in this case. But before concluding this opinion, we would like to refer to the decision of this Court, upon which the Judge relied, in denying defendant the right to examine the plaintiff on the question of older title. The case, Massaquoi v. Lowndes, [1935] LRSC 5; 4. L.L.R. 260 (1935) upon which the Judge relied, and the principle enunciated therein, cannot be made to apply in any way to the issues involved in this case. For, whilst in the Massaquoi case, the defendant in an action of debt entered a bare denial of the facts contained in the complaint, and therefore could not cross-examine on any affirmative matter, in the present case not only in the defendant in court with all of his pleadings, and also with the deed upon which he had based his cross-examination, but older title, upon which he sought to examine the plaintiff, is an im- LIBERIAN LAW REPORTS 521 portant principle controlling the instant action of ejectment. For clarification of this point we will quote relevant portion of the Massaquoi opinion, reported at 4 L.L.R. 261. “Defendant in the present case filed neither appearance nor answer within the time prescribed by law; but when called at the trial appeared by attorneys and submitted to the jurisdiction of the court. Under the provision of the laws cited, he could rest upon a bare denial, equivalent to a nil debet, only. In spite of this, this counsel, during the cross-examination which the trial court allowed, embarked upon an affirmative defense, whereupon the Judge quite correctly checked him.” Need we say any more to prove how entirely different from each other these two cases are? In view of the foregoing it is our opinion that the judgment of the court below should be, and the same is hereby reversed. The Judge resident in the Sixth Judicial Circuit, or any other assigned to preside therein, is hereby ordered to resume jurisdiction and try the case anew. He will appoint a board of surveyors, one to represent the court who shall be chairman, and one to represent each of the parties; and he shall instruct them to notify residents in the area and persons holding deeds to adjoining property, and then proceed with an official map of the particular locality of the City of Monrovia, and on the spot locate Lot Number 112, the subject of this suit, and make a report as to the findings. Costs of these proceedings to abide final determination of this case. Reversed and remanded.