T. A. DUNDAS, Appellant, v. THOMAS N. BOTOE, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued May 11, 1966. Decided July 1, 1966. In an ejectment action, a defendant who has failed to allege or proffer a deed to the disputed property in his pleadings may properly be barred from producing such a deed in the trial. 2. In an ejectment action, a duly probated and registered deed is superior, as evidence of title, to any prior instruments or indicia which have not been duly probated and registered. 3. In an ejectment action, a defendant’s bare and unsupported denial of the plaintiff’s title cannot prevail where the plaintiff has established title by a duly probated and registered deed. 1. On appeal in an ejectment action, the judgment of the trial court was affirmed. Morgan, Grimes and Harmon Law Firm for Simpson Law Firm for appellee. appellant. MR. Court. JUSTICE R.OBERTS delivered the opinion of the Thomas N. Botoe, the appellee in this case and plaintiff in the court below, alleged that in the year 193o he purchased Lot No. 77, situated and lying in the west side of Robert Street, Monrovia, Liberia, from the late John W. H. McClain and his wife Mary McClain who both executed a warranty deed in his favor; that whilst he was away from the Republic of Liberia, appellant entered his premises and thereon constructed a neat house in the year 196o; and that appellee, returning to Liberia and observing the encroachment on his land by appellant, wrote him a letter informing him of his illegal possession of his land and advised him to vacate. From this letter many others 457 45$ LIBERIAN LAW REPORTS issued and conferences were arranged with a view of dissolving the dispute, but all these efforts were fruitless. Thereupon appellee instituted an ejectment suit on the 3oth day of April, 1962. The pleadings progressed as far as the rejoinder. The issues of law having been disposed of by His Honor John A. Dennis presiding by assignment during the March term of court, 1964, the case was ruled to trial to determine whether plaintiff, now appellee, was the lawful owner of the property described in the complaint and whether defendant-appellant was unlawfully occupying same. The case came up for hearing before a jury during the March 1965 term of court presided over by His Honor D. W. Baromi Morris. After hearing the evidence adduced, the jury brought in a verdict in favor of appellee, to which appellant excepted and moved for a new trial, which motion was denied. The court rendered final judgment confirming the verdict of the trial jury and ordered the issuance of a writ of possession in favor of appellee. Appellant took exceptions from this judgment and other rulings of the judge and prayed an appeal to this court for a review of the case. We find it necessary first to quote the bill of exceptions filed by appellant which reads as follows. “1. Because defendant says that the court on May 13, 1964, same being the 38th day’s session, ruled on the law issues, overruling Counts 1 and 3 of defendant’s answer, to which defendant excepted. “2. Because defendant says that when he was testifying for himself, the following question was put to him on the direct examination : ” ‘Q. You have referred to your having a deed to the land and stated that it has been registered and probated. If you have said deed, will you please present it?’ To which question plaintiff objected on the grounds: ( 1) not issue pleaded; (z) not one of the is- LIBERIAN LAW REPORTS 459 sues ruled to trial; and (3) the law of notice. Which objection Your Honor sustained; to which ruling defendant excepted. (See minutes of court, April 21, 1965, 22nd day’s session, pages 3 and 4.) “3. Because Your Honor on the 23rd day of April, 1965, same being the 22nd day’s session, delivered a written charge to the jury, to which charge defendant recorded his exceptions. “4. And also because on the aforesaid 22nd day of April, 1965 the jury returned a verdict in favor of the plaintiff to the effect that the plaintiff is entitled to his land, to which verdict of the jury the defendant then and there entered his exceptions. “5. And also because on the 23rd day of April, 1965, the defendant filed a motion for a new trial which Your Honor heard and denied on the 28th day of April, 1965, to which defendant duly excepted. “6. And also because on the 3rd day of May, 1965, Your Honor rendered judgment against the defendant, thereby sustaining the verdict of the jury, to which judgment the defendant promptly entered his exceptions and announced appeal to the Honorable Supreme Court at its ensuing October term 1965.” Count 1 of the bill of exceptions refers to the trial judge’s overruling Counts 1 and 3 of the answer. Let us see how the answer reads : t`i. Because defendant says that plaintiff’s complaint is fatally defective and bad, in that plaintiff, relying as he is on a record or paper title, should have shown a regular chain of title from the Government of Liberia. Plaintiff not having done this, his entire action should be dismissed and defendant so prays. “2. And also because defendant says that he is not now occupying, nor has he at any time occupied, the whole or any portion of the parcel of land described in plaintiff’s complaint, the subject of these proceedings, as is falsely alleged by plaintiff. 460 LIBERIAN LAW REPORTS “3. And also because defendant says that he is the owner of a certain quarter-lot parcel of land adjoining the premises described in plaintiff Botoe’s complaint which quarter-lot parcel of land plaintiff purchased from the Government of Liberia which at the time of purchase was the bona fide owner. (See copies of certificate of land commissioner, official revenue receipt, and public land surveyor’s certificate, marked exhibits A, B, and C, respectively, hereto annexed to form part of this answer.) Defendant submits that his said quarter-lot parcel of land is separate and distinct from the parcel of land from which plaintiff seeks. to eject defendant. “4. And also because defendant denies all and singular the allegations of law and fact as are set forth and contained in plaintiff’s complaint not made a subject of special traversal in this answer. “Wherefore in view of the foregoing, defendant prays the dismissal of plaintiff’s action with costs against plaintiff.” Plaintiff-appellee in his complaint asserted that he was the bona fide owner of Lot No. 77 and made profert a copy of a deed acquired from John W. H. McClain and Mary McClain and marked by the court Exhibit A. The deed made profert by appellee and made part of the records in the case certified to us is clear and distinct and speaks for itself with regard to this regular conveyance which gives title to appellee. We quote the relevant portion : “Know all men by these presents that I, John W. H. McClain of the City of Monrovia in the County of Montserrado and Republic of Liberia, for and in consideration of the sum of one hundred sixty-eight dollars paid to me by Thomas Nimene Botoe of the City of Monrovia in the County of Montserrado, Republic of Liberia (the receipt whereof is hereby acknowledged) do hereby give, grant, bargain, sell and con- LIBERIAN LAW REPORTS 461 vey unto said Thomas Nimene Botoe, his heirs and assigns, a certain lot or parcel of land with buildings thereupon and all the privileges and appurtenances to the same belonging, situated in the City of Monrovia, County of Montserrado, and bearing in the authentic records of said City the Number seventy-seven (77) and bounded and described as follows.. . .” In Count 3 of the answer, appellant claimed ownership of a “quarter lot” without describing this tract of land by number or otherwise; and what is most surprising, appellant failed to proffer any deed granting him title to said land. Instead appellant made profert certificates from the land commissioner and land surveyor and revenue receipts as indicia of title. What a novelty! Our statute is clear on this point as against the purported title of appellant and says : “All persons acquiring any interest affecting or relating to real property shall appear in person or by attorney-at-law before the Probate Court for the county in which such real property is situated within four months of the date of execution of the instrument and have the deed, mortgage or other instrument affecting or relating to real property publicly probated ; provided, however, that this provision shall not apply to persons acquiring an interest affecting or relating to real property prior to October 1, 1862.” 1956 CODE 29 :2. “If any person shall fail to have any instrument affecting or relating to real property probated and registered as provided in this Chapter within four months after its execution, his title to such real property shall be void as against any party holding a subsequent instrument affecting or relating to such property, which is duly probated and registered.” 1956 CODE 29:6. This Court has held that a naked possession of land by an intruder cannot prevail against a paper title and that an action of ejectment may be brought against any person 462 LIBERIAN LAW REPORTS holding property adverse to the interest of a party plaintiff. We are of the decided opinion that the judge could not but rule out Counts i and 3. We now come to appellant’s objection to the question: “You have referred to your having a deed to the land and that has been registered and probated. If you have said deed, will you please present it?” This Court has held that: “In civil cases however the parties are confined to the points specifically set up in the pleadings; hence a defendant who pleads in traverse, or a fortiori does not plead at all, cannot cross-examine the witnesses for plaintiff on any affirmative matter.” Massaquoi v. Lowndes, 4 L.L.R. 26o (1935). The grounds of objection raised by plaintiff that the deed was never pleaded, nor the issue ruled to trial, and that notice was lacking were rightly and legally sustained by the judge. Moreover, the record shows that nowhere in the defendant’s testimony did he assert possession of a deed that had been probated and registered. He testified as follows : “I occupied not an inch of land belonging to Mr. Botoe. The land I am occupying, I bought from the Government of Liberia, and it was surveyed by the public land surveyor. I have my title to prove that.” It is evident that by “title” the plaintiff referred to those certificates and receipts he proffered and which were marked Exhibits A, B, and C. The entire testimony of appellant given during the trial for which he has asked us to review and reverse the judgment of the lower court is here recorded in full with no omission whatsoever : “Q. What is your name and place of residence? “A. My name is T. A. Dundas, Monrovia, Liberia. “Q. Are you the defendant and acquainted with one Mr. Thomas N. Botoe plaintiff in this case? “A. Yes. LIBERIAN LAW REPORTS 463 “Q. The plaintiff has brought a suit of ejectment alleging that you are unlawfully withholding and detaining from him property Lot No. 77. You have denied this allegation in your answer and subsequent pleadings. Please tell this court all the facts and circumstances that may lie within your knowledge and in support of your defense. “A. I occupied not an inch of land belonging to Mr. Botoe. The land I am occupying, I bought from the government of Liberia, and it was surveyed by the public land surveyor. I have my title to prove that. “Q. You have referred to your having a deed to the land and stated that it has been registered and probated. If you have said deed, will you please present it? “Objection: Grounds: ( 1) not issue pleaded; (2) not one of the issues ruled to trial; and (3) the law of notice. “Objection sustained. To which defendant excepts. Defendant rests with the usual reservation. Witness discharged with the thanks of this court. Defendant rests evidence.” From the evidence adduced during the trial it appears that appellee conformed with the rule that in ejectment the plaintiff must show title. This Court is at a loss to know what defendant-appellant relied on to disprove the allegation of plaintiff-appellee. Did he rely on the few lines of testimony he gave or on the certificate he proffered? It is clear that defendant-appellant produced nothing in the court below to show title to the premises in question nor any other premises but set up a bare denial. We are wondering whether the exceptions taken to the rulings and final judgment of the trial judge and the filing of this appeal were honest or regarded as a formality or a means of elongation? Be it what it may, the trial having been regularly and fairly conducted, we find no reason to 464 LIBERIAN LAW REPORTS interrupt the judgment. This Court is therefore of the opinion that the judgment of the trial court should be affirmed and appellant ruled to pay all costs. And it is hereby so ordered. Judgment affirmed.