MAI BARCLAY-DUNBAR, by and through her husband, STEPHEN B. DUNBAR, and SIATA BARCLAY, Appellants, v. DAVIDETTA DEAN PEABODY, by and through her husband, ALBERT D. PEABODY, and ALBERT D. PEABODY, attorneyin-f act for EMMA DEAN COX, by and through her husband, JOHN D. COX, Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 21, 1968. Decided February 6, 1969. 1. A party who fails to fulfill his obligations under a contract for the transference of real property to him, may not, nor may his heirs, obtain specific performance of the terms of the agreement, or recover the property in an action of ejectment, for legal title never vested in him under the terms of the contract which he breached. 2. In an action of ejectment, plaintiff must show a legal title to the property in dispute. 3. A plaintiff in an ejectment suit may recover property to which legal title has vested in him by descent. An action of ejectment was brought by the heirs of a party to an agreement providing for the transference to him of real property upon his fulfillment of various obligations, subsequently breached by him. It appears there was also a subsequent agreement between the widow of the obligor and the heirs of the owner of the realty who contracted with him. The action of ejectment was dismissed in the trial court, from whose judgment an appeal was taken. Judgment affirmed. Dunbar and Horace for appellants. Albert D. Peabody and Peter Amos George for appellees. MR. JUSTICE ROBERTS delivered the opinion of the cou rt. 158 LIBERIAN LAW REPORTS 159 Emma Crump-Porter, of Monrovia, died in the year 1936. About a decade prior to her decline, cognizant of her indigent state, and sensitive to the frailty of life and inevitability of death, she approached a notable gentleman and statesman, Mr. Edwin Barclay, also of Monrovia, for succor during the destitute and feeble days she contemplated living, and to occasion her human remains a suitable interment. This request of Mrs. Porter having met with a favorable response by Mr. Barclay, a memorandum of agreement was concluded between the two on July 9, 1926, the cogent portion of which we quote : That the party of the first part for and in consideration of the stipulations hereinafter made to be faithfully kept and performed by the party of the second part, doth hereby give, grant, bargain, sell and convey unto the said party of the second part, his heirs, executors and assigns, all that lot or parcel of land with the buildings thereon and all the privileges and appurtenances to the same belonging, situated, lying and being in the City of Monrovia aforesaid. . . . 2. And the party of the second part, for himself, his heirs, executors, administrators and assigns doth hereby agree to take the said lands hereinbefore granted and demised with the buildings thereon and the appurtenances thereunto appertaining, and in consideration thereof and the premises aforesaid, doth further agree: “a) to pay monthly and every month from the first day of August, 1926, unto the party of the first part during the term of her natural life, the sum of $12.00. “b) to permit the party of the first part to reside in the house during her natural life, and “c) upon her death to give her a decent burial.” Seemingly, Mrs. Porter was formed of extra strong human fabric and survived longer than was calculated by both parties and so the party of the second part after two ” 160 LIBERIAN LAW REPORTS years’ compliance with part two (a) and (b) of the agreement, without any notice, discontinued fulfilling these obligations, and eight years thereafter failed to comply with (c) thereof. The averment of these facts made by appellees have not been denied nor rebutted by appellant. For proof of breach of subdivision (c) by appellant, appellees made profert the following document: “Exhibit C, Certificate “This is to certify that when Mrs. Emma CrumpPorter, deceased, of the City of Monrovia, died in 1936, the casket in which she was buried was made by me at the request and at the expense of Mrs. Robertetta Crump who retained my services as a carpenter. (Sgd.) WILLIAM T. JOHNSON “December 28, 1961.” It is important to note that in the will of Mr. Barclay, proferted by appellees, the property above-mentioned was not provided for. Whether this was an inadvertence, or deliberate on his part, since he was an able lawyer, and, hence, is recognition of his breach of the agreement, we cannot say with certainty. According to the record certified to us, despite Mr. Barclay’s omission to fulfill his contractual obligation, he continued in full possession of the property after the death of Mrs. Porter, even though he did not dispose of it in his will. Because of this adverse possession the heirs of Mrs. Porter filed cancellation proceedings, after the death of Mr. Barclay, against his widow and sole executrix. Before the proceedings could be resolved by court, a compromise was effected and the following agreement signed. “Stipulation relating to a memorandum of agreement executed between Edwin J. Barclay and Emma Porter, dated July 9, 1926. “The parties hereto have agreed that in view of negotiations between them, the following shall constitute ” LIBERIAN LAW REPORTS 161 their stipulation in respect to the said memorandum of agreement: i. There did exist a valid memorandum of agreement entered into between E. J. Barclay and Emma Porter. “2. In accordance with the aforesaid memorandum, certain obligations were imposed upon both of the parties thereto, which obligations were partially executed. “3. That the parties herein have reconsidered the entire transaction in the light of their legal relationship to the parties in said memorandum of agreement, and have decided that same be canceled premised upon certain provisions herein contained. “4. That the legal heirs of Emma Porter shall pay over to the successors-in-interest of the late Edwin J. Barclay the sum of $250.00 upon the signing hereof, same to constitute a refund of the sums expended by Edwin J. Barclay on the late Emma Porter in partial compliance with the terms of the aforesaid memorandum of agreement. “5. That effective as of the date hereof, the aforesaid successors-in-interest of the late Edwin J. Barclay shall be granted a period of sixty days in which to vacate the subject premises. “6. That the heirs of the late Emma Porter shall also pay to the attorneys of Mrs. Euphemia Barclay all costs incident to the prosecution of her interest up to and including the time of the withdrawal of the case instituted by the said heirs of Emma Porter for recovery of this property. “7. That the successors-in-interest of the late Edwin J. Barclay shall relinquish, effective hereof, all rights and interests that they may have in said property by virtue of the aforesaid memorandum of agreement. ” 162 LIBERIAN LAW REPORTS “In witness whereof the parties hereto have hereunto affixed their signatures to this instrument this 29th day of March, 1962. [Sgd.] “EUPHEMIA BARCLAY [Sgd.] “DAVIDETTA DEAN-PEABODY (for herself) [Sgd.] “ALBERT D. PEABODY, attorney-in-fact for EMMA DEAN COX Witnesses: [Sgd.] “EUPHEMIA BRUMSKINE [Sgd.] “E. WINFRED SMALLWOOD [Sgd.] “P. Amos GEORGE” Following the death of Mrs. Barclay, appellants filed an action of ejectment against appellees in the Sixth Judicial Circuit, during its June 1967 Term, contending the following: That plaintiffs are the only surviving lineal heirs of the late Edwin Barclay of the City of Monrovia, who died seized in fee simple of lot No. 55, situated, lying and being on Gurley Street, City of Monrovia, and containing one-fourth of an acre of land, as will more clearly be seen from a copy of an agreement between Emma Porter and Edwin Barclay, herewith made profert and marked exhibit ‘A’ to form a cogent part of this complaint, as well as a copy of a warranty deed from Joseph S. Dennis to Emma Porter, herewith made profert and marked exhibit ‘B’ to form part of this complaint. “2. And plaintiffs further complain that by virtue of the fact that they are the only lineal surviving heirs of the late Edwin Barclay, their father, they are entitled, under the law of descent, to the ownership, possession and title of the property described in count one hereof. “3. And plaintiffs further complain that notwithstanding that defendants are fully aware of plaintiffs’ LIBERIAN LAW REPORTS 163 title and ownership of said parcel of land, subject of this action, the defendants did illegally enter, trespass upon and occupy the said parcel of land, and the said defendants are now wrongfully, illegally and prejudicially withholding possession thereof from plaintiffs who are the only legal owners of said parcel of land.” To this complaint, appellees answered, and the pleadings progressed as far as surrebutter. Count one of the answer reads : “1. Because defendants aver that plaintiffs’ action should be dismissed for choosing the wrong form of action ; in that, according to the complaint and exhibit `A,’ this action arises out of a contract, and according to our statutes, it should have been an action in equity for specific performance ; defendants submit that according to plaintiffs’ exhibit ‘A,’ there existed a contract between the late Emma Porter and Edwin Barclay to the effect that the late Edwin Barclay would pay $12.00 to the said Emma Porter monthly, commencing August r, 1926, for the duration of her natural life, and that ‘upon her death to give her a decent burial.’ According to plaintiffs’ complaint the terms and conditions on the part of the heirs of the late Emma Porter have not been carried out and the alleged wrongful withholding cannot therefore be the proper action; specific performance would be the proper action.” After pleadings had rested on August 16, 1967, the trial judge disposed of the issues of law, dismissing the action in the following ruling: “In view of the foregoing, counts one and two of the answer, with the supporting pleas to them as contained in the amended rejoinder and reaffirmed in the defendants’ rebutter are sustained, the complaint, with its subsequent supporting pleas in respect to these counts of the answer, abated and overruled, and the action dismissed, with costs against plaintiffs. Our 164 LIBERIAN LAW REPORTS opinion is that plaintiffs’ better writ would be specific performance, according to the facts stated in the complaint; and it is hereby so ordered.” The pleadings in this case raised many issues of law; nevertheless, we will confine ourselves to the following: i. Did this memorandum vest title in appellant? 2. Were the terms and conditions of the agreement met? 3. Is ejectment the right or correct form of action? 4. Does the contention of appellants that they are the only surviving heirs of the late Edwin Barclay as contained in counts one and two, as well as the latter part of count three, of the complaint, vest title in appellants? Starting in reverse order, this Court has held that the essential issue in ejectment actions is not the tie of blood, but title. A plaintiff in ejectment may recover property which descended to him, if the title legally vests in him. In this case, legal title would have vested in appellants since there is no question of sole survivorship, nor has this been challenged, but there seems to have been no legal title vested in Edwin Barclay, whose heirs they claim to be. It is a basic principle in ejectment proceedings that title to real property is a requisite issue. There is no issue that they are, or are not, the heirs of Mr. Barclay. But there is contention that Mr. Barclay never legally acquired the land. It is peculiar that Mr. Barclay assumed possession of the property, enjoyed the benefits thereof for more than i8 years in consequence of a small payment of $250.00 and in the devisement of his property ignored it. In passing it is touching to note even this small sum was returned and gladly accepted. As to the third question posed, reference is here made to Kamara v. Kamara, [1954] LRSC 17; 12 L.L.R. 28 (1954), where it was held that a written receipt which satisfies the requisites of a binding contract of sale of real property may be specifi- LIBERIAN LAW REPORTS 165 cally enforced by a court of equity. In Horace v. Harris, [1947] LRSC 14; 9 L.L.R. 372 (1947), the Court held that in ejectment the plaintiff must show a legal and not merely an equitable title to real property in dispute. As to the second question, a look at the record certified to us shows the terms of the agreement which the party of the second part obligated himself to, and the legal significance of his signature affixed to the document. We partially dealt with this question hereinabove. It is clear that this memorandum did not vest title in Mr. Barclay. There is a distinction between a contract to transfer land, and transference of land. A contract to transfer an interest in land may be valid as a contract, but inoperative as an actual transfer as in this case. In our jurisdiction, a contract for the sale or transfer of land is enforceable by specific performance. We would like to here stress that if Mr. Barclay had kept his side of the contract as agreed upon, appellees would be compelled to effectuate its intentions. In view of the foregoing facts, and the law as cited above, the Court has no alternative but to affirm the judgment of the lower court, and order it to resume jurisdiction over this case and enforce its judgment. Costs in these proceedings are ruled against the appellants. And it is hereby so ordered. Affirmed