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RUFUS JARBOE and DORIS JARBOE, legal surviving heirs of the late SOLOMON JARBOE, Appellants, v. DANIEL SARTEE, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE THIRD JUDICIAL CIRCUIT, SINOE COUNTY.

Heard: May 4, 1981. Decided: July 30, 1981.

1. Every appellant shall give a bond in an amount to be fixed by the court, with two or more legally qualified sureties to the effect that he will indemnity the appellee from all costs or injury arising from said appeal if unsuccessful, and that he will comply with the judgment of the appellate court or any other court to which the case removed.

2. The portion of section 63.2(3) of the Civil Procedure Law which requires that the property be described and sufficiently identified to establish the lien of the bond means that the description must include the number, if any, and the metes and bounds of the property.

3. The number of a lot alone is not a description sufficient to easily identify and locate the lot on the ground.

4. The statutory requirements relating to an appeal must be strictly adhered to; otherwise courts will have no alternative but to grant a motion to dismiss the appeal when timely and property filed.

5. The requirements of the affidavit of sureties which accompanies the bond are mandatory, and failure to strictly adhere to them, will render the appeal dismissible.

From a final judgment dismissing a cancellation proceedings in the Third Judicial Circuit Court, Sinoe County, appellants announced an appeal to the Supreme Court. When the case was called for hearing, appellee informed the court that he had filed a motion to dismiss the appeal on the grounds that the appellants’ appeal bond was defective. In the motion, the appellee contended that the properties offered as security were not properly and sufficiently described, as to be properly identified, in order to establish a lien on the bond as the statute mandatorily requires. Appellants, on the other hand, maintained that by stating the number of the lots and indicating that they were situated in Greenville, Sinoe County, they had sufficiently described the property as required by the statute.

The Supreme Court, after defining what constitutes a description of property, sufficiently identified to establish a lien on the bond under Section 63.2 of the Civil Procedure Law, disagreed with the contentions of the respondents, and held that the lot number alone is not sufficient to describe a property offered as security on a bond; the metes and bounds must also be stated in the affidavit of sureties. The Court opined that the affidavit of sureties accompanying the bond did not state the metes and bounds of the property offered as security for the bond, and therefore held that the bond was defective. The Court accordingly granted the motion and dismissed the appeal.

MR. JUSTICE MORRIS delivered the opinion of the Court.

Clarence 0. Tuning appeared for appellants. Jenkinson T. Nyenpan, Sr. and John T. Teewia appeared for appellee.

The appellants, surviving heirs of the late Solomon Jarboe of Sinoe County, filed a cancellation proceedings in the Third Judicial Circuit Court for Sinoe County, to cancel one warranty deed issued to the appellee by Rachel Morris Kennedy, Susanna Morris, Polin Turner and Josephine Watkins in 1953 for lot number 885. Their reason for filing the cancellation proceedings was that the appellee had obtained said deed by fraud practiced on the late Solomon Jarboe. Appellants maintained that the amount of $71.00 used by appellee to purchase lot number 885 was given to him by the late Solomon Jarboe to buy one lot in Greenville, Sinoe County, for the said Solomon Jarboe, but that after purchasing the lot, the appellee had the grantors prepare the said warranty deed in the appellee’s name instead of in the name of the late Solomon Jarboe. Pleadings progressed to reply and rested. During the August 1980 Term of the Third Judicial Circuit, Judge Eugene L. Hilton dismissed the action while ruling on the law issues because, according to the judge, the entire case was predicated upon agency relationship and the master principal having died, the said relationship automatically ceased. Appellants appealed from this judgment to this Court of last resort. When this case was called for hearing, the appellee informed us that he had filed a motion to dismiss the appeal. It is this motion to dismiss the appeal with its resistance, that we will now address.

The one-count motion filed by the appellee attacked the appeal bond as being badly defective in that the properties offered as security were not sufficiently described to be identified in order to establish a lien on the bond as the statute mandatorily requires. He attached photocopies of the appeal bond, affidavit of sureties and the certificate from the Ministry of Finance. Appellants maintained that by stating the numbers of the lots and indicating that they are situated in Greenville City, Sinoe County, they had sufficiently described said properties to establish a lien on the bond. Appellants further contended that the revenue certificate clearly shows that taxes have been paid on the properties and therefore the appeal bond is not defective.

Every appellant shall give a bond in an amount to be fixed by the court, with two or more legally qualified sureties, to the effect that he will indemnify the appellee from all costs or injury arising from the said appeal if unsuccessful, and that he will comply with the judgment of the appellate court or any other court to which the case is removed. Civil Procedure Law, Rev. Code 1: 51.8. Our Civil Procedure Law provides that the bond secured by natural persons shall be accompanied by affidavit of sureties containing the following:

“(a) A statement that one of them is the owner or that both combined are the owners of the real property offered as security;

(b) A description of the property, sufficiently identified to establish the lien of the bond;

(c) A statement of the total amount of the lien, unpaid taxes, and other encumbrances against each property offered; and

(d) A statement of the assessed value of each property offered.

A duplicate original of the affidavit required by this section shall be filed in the office where the bond is recorded.” Ibid., 63.2(3).

What then constitutes description of property, sufficiently identified to establish a lien on the bond? Black’s Law Dictionary defines description as that part of a conveyance, advertisement of sale, etc. which identifies the land or premises to be affected.

The Dictionary adds that to describe is to narrate, express, explain, to give the metes and bounds. BLACKS LAW DICTIONARY 531-532 (4th ed.). We hold therefore that section 63.2(3)(b) refers to the number, if any, and the metes and bounds as description sufficient to identify the land offered as a security to establish a lien on the bond. The number with the metes and bounds of the land would make its location on the ground an easy exercise. The number of a lot alone is not a description sufficient to easily identify and locate the lot on the ground. We find ourselves unable to agree with the contention of the appellants that the lot number alone fully describes the property offered as security for the appeal bond. Statutory requirements relating to appeal must be strictly adhered to, otherwise this Court would have no other alternative but to grant a motion to dismiss when properly filed. Gabbidon v. Toe, [1974] LRSC 24; 23 LLR 43 (1974); West Africa Trading Corporation v. Alraine (Liberia), [1975] LRSC 16; 24 LLR 224 (1975).

The requirements of the affidavit of sureties which accompanies the bond are mandatory and failure to strictly .adhere to them will render the appeal dismissible. In the case at bar, the appellants’ counsel argued before us that by stating the numbers of the lots and indicating that they are situated in Greenville City, Sinoe County, he has fully complied with the requirements of the affidavit of sureties. Therefore, according to him, the properties are well described, sufficiently identified to establish a lien on the bond. We disagree with appellants’ contention and hold that to describe the land offered as a security for bond, the metes and bounds must be stated in the affidavit of sureties. The affidavit of sureties accompanying the appeal bond in this case does not describe the property as the law requires and therefore renders the appeal bond defective. A defective appeal bond affords ground for the dismissal of the appeal as in the instant case. The motion to dismiss the appeal is, therefore, granted with costs against the appellants. And it is so ordered.

Motion granted; appeal dismissed

 

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