FOUAD ASHKAR, Informant/Appellant, v. The Sheriff of Montserrado County, SAMUEL JOHNSON and all the BAILIFFS of said County, Respondents/Appellees.

INFORMATION PROCEEDINGS.

Heard: March 21, 1985. Decided: June 20, 1985.

1. Under the statute law of Liberia, the sheriff has the authority only to execute and deliver to an execution purchaser proof of publication, service and posting of the notice of sale, and the deed which conveys the right, title and interest sold, which proof may be recorded in the office of the registrar of deeds of the county where the property is located. Rev. Code 1 :44.43.
2. Under our case law, every sheriff to whom a writ of execution or sale has been directed, shall have the authority and the duty to put the purchaser or purchasers of any property, movable or fixed, sold by virtue of such writ, in possession of such property only if the sheriff, the execution debtor, or the person against whom the writ was issued, is in possession of said property; otherwise the purchaser can obtain possession of the property only by other legal means available to him.
3. The sheriff has the authority and the duty to execute all instruments of writing or other evidence of title necessary and proper for the security of the purchaser.
4. The purchaser of real property at an execution sale cannot by means of a writ of possession be put in possession of the property which is in the possession of a third party.
5. Generally, the sale of real property under judicial proceedings will not ordinarily affect any right, title, or interest in the premises that may be held by any person who was not in some manner a party to the proceedings in which the sale was had.
6. Where a lessee acquires his interest after the attachment of the lien of a judgment, or after the lien or execution under which the property was sold, the interest of the execution purchaser becomes superior to that of the lessee.
7. A purchaser who acquires property after execution of a lease takes the property subject to the lease, although he had no actual knowledge of the leasehold.
8. A purchaser of property at a judicial sale takes over the rights of the former owner and becomes entitled to the rents and profits of the property that accrue subsequently, and the lessee thereby becomes the tenant of the purchaser as of the date the purchaser receives the Sheriff’s Deed.
9. An execution purchaser may, if he can do so without a breach of the peace, enter upon the purchased property without the consent of the former owner free from liability as a trespasser.

10. An execution purchaser may enter an action to quiet title or an action of ejectment against the former owner or other persons in wrongful possession of the property.
11. Ejectment will however not lie to evict a lessee from possession of property held under a leasehold right subsequently sold or transferred to a lessee by the lessor.
12. The law cannot allow one to benefit by his own fraud or evil, but such benefit may not be withheld from a third party who did not participate in the fraud and had no knowledge of it.

Fouad Ashkar, the appellant, brought a bill of information in the Civil Law Court for the Sixth Judicial Circuit, Montser-rado County, in response to an attempt by the sheriff of Montserrado County to evict him from premises sold to a purchaser under an execution sale. The informant was lessee of a judgment/execution debtor under a lease executed subsequent to the judgment but prior to the sale of the property. The judgment debtor had concealed the property from execution after judgment was rendered against him. The property, dis-covered by the judgment plaintiff, was exposed to public auction and sold after the judgment debtor had failed to appear in response to the service of a writ of execution. The informant was not cited to appear at the execution hearing. Following the sale, the sheriff sought to remove the informant from the premises, thus necessitating the filing of the information.
After a hearing, the trial court denied the information. From this denial, appellant appealed the case to the Supreme Court.
The Supreme Court reversed the judgment of the trial court, holding that under the statute the sheriff’s authority and the duty extended only to executing and delivering to the purchaser proof of publication, to serving and posting notice of the sale, and to issuing a deed conveying the right, title and interest sold. The Court opined further that the sheriff had the authority to put the purchaser in possession of the sold property only where the sheriff himself or the execution debtor was in possession of the property, and not where the property was in the possession of a third party. Where the property was in the possession of such third party, the Court said, the purchaser must resort to other legal means to acquire possession.

The Court also held that where there exist a leasehold prior to the execution and sale, the execution and sale are subject to the leasehold. As such, the Court observed, the lessee becomes the tenant of the new owner, and the new owner acquires the right to the benefits, rents and profits accruing to the property. He cannot, however, eject the lessee by virtue of such new ownership. Moreover, the Court said, while it is true that one who commits a fraud or does an evil cannot be permitted to benefit such fraud or evil, the principle did not apply to an innocent third party who did not participate in or had knowledge of the fraud or evil. The Court therefore concluded that the lessee could only be ejected if he participated with the execution debtor in concealing the property from the trial court. The informant, it said was entitled therefore to the continued use and enjoyment of the property as provided for by the lease. The judgment of the trial court was therefore reversed and the information granted.

E. Winfred Smallwood and David A. B. Jallah appeared for the informant/appellant. J. Laveli Supuwood appeared for the respondents/appellees.

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

Fouad Ashkar brought this bill of information in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, contending that he is the lessee of a piece of real property which was the subject of a judicial sale, and that a writ of possession was subsequently issued to the highest bidder, one Mr. Nelson Diegbgha, who together with the Sheriff of Montserrado County, sought to oust or evict him from the sold premises.

According to the records certified to this Court, the genesis of this case is rooted in an action of ejectment brought in the Civil Law Court for the Sixth Judicial Circuit by M. M. Perry in 1956 against Igal Ammons, both of them being from Montserrado County. The action was decided in 1965 in favor of Mr. Perry and the judgment was partly satisfied as to the subject of the ejectment, but the money judgment for damages in the sum of $15,000.00 (Fifteen Thousand Dollars) remained unsettled. The reason alleged for the partial satisfaction of the judgment was that the defendant, Igal Ammons, was found to have no means to settle the payment of the amount. However, in 1983 Mr. M. M. Perry unraveled the existence of a piece of property belonging to said Igal Ammons, located on Randall Street and described as follows:

“Commencing at the Southwestern corner of the adjacent land owned by Mr. Aaron Cooper and running thence south 70 degree East 114 ft.; parallel with Randall Street then South 10 it; thence 70 degree West 121 ft.; and containing ½ acre of land”.
On the basis of this discovery, Mr. Perry filed a bill of in-formation in the Civil Law Court, appraising the court of his discovery. A writ of summons was subsequently issued against Mr. Igal Ammons to appear in court and to verify the informa-tion filed by Mr. Perry. Said writ of summons and the returns are quoted below:

“REPUBLIC OF LIBERIA ) IN THE PEOPLES CIVIL LAW COURT FOR

MONTSERRADO COUNTY) THE SIXTH JUDICIAL CIRCUIT, MONT-

SERRADO) COUNTY, SITTING IN ITS DECEMBER TERM, A. D. 1982.

BEFORE HIS HONOUR: J. HENRIC PEARSON, ASSIGNED JUDGE”

McDonald M. Perry, of the City of )

Monrovia, Liberia…………PLAINTIFF )

Versus ) ACTION OF

Igal Ammons, also of the City of ) EJECTMENT

Monrovia, Liberia……..DEFENDANT )

WRIT OF SUMMONS

REPUBLIC OF LIBERIA, TO P. EDWARD NELSON, II, Esquire,

Sheriff for Montserrado County, G R E E T I N G S:

YOU ARE HEREBY COMMANDED TO SUMMONS Igal Ammons, defendant in the above entitled cause to appear before the People’s Civil Law Court for the Sixth Judicial Circuit Montserrado County, sitting in its December Term, A. D. 1982, on the 22nd day of February, A. D. 1983, at the hour of 2 o’clock in the afternoon to show cause why the properties just discovered by plaintiff should not be expose for public sale to satisfy the judgment.

YOU ARE further commanded to make your official Returns endorsed on the back of this writ of summons on or before the said 22nd day of February 1983, as to the manner of service of this writ of summons.
AND HAVE WITH YOU THERE THIS WRIT OF SUMMONS

Given from under my signature with the seal of this Honourable Court, this 15th day of February, A. D. 1983.

Signed:
Robert B. Anthony
“Clerk, People’s Civil Law Court
Montserrado County

$4.00 Rev. Stamp on Original”

“SHERIFF’S RETURNS

On the 21st day off February, A. D. 1983, I, George Sherman a bailiff of the First Judicial Circuit Court “A” Montserrado County, Republic of Liberia, served the within said writ of summons on the within said named Igal Ammons. But he refused to received a copy of the within writ of summons, stating that the case is over. I now make this as my official returns to the office of the clerk, Peoples Civil Law Court, Montserrado County, Republic of Liberia.

Dated this 21st day of February A. D. 1983.

Signed: Sammy M. Johnson

Acting Sheriff, Montserrado County

Bailiff First Judicial Circuit Court “A”

Montserrado County, R. L.

21 /2183 GEORGE. S. SHERMAN”
The returns to the summons issued against Mr. Ammons reveal that he refused to attend because, he said, the matter between him and Perry had been concluded.

Thereafter, the court, being satisfied that the property in question was in fact that of Mr. Igal Ammons, as was reported by Mr. Perry, ordered that the writ of execution which was issued since 1980, be served on Mr. Ammons. The writ of execution is quoted here verbatim:
“REPUBLIC OF LIBERIA ) IN THE CIVIL LAW COURT FOR THE

MONTSERRADO COUNTY ) SIXTH JUDICIAL CIRCUIT, MONTSERRA-
DO COUNTY, SITTING IN ITS MARCH
TERM, A. D. 1980.
BEFORE HIS HONOUR: E. S. KOROMA,. ASSIGNED CIR. JUDGE

WRIT OF EXECUTION

REPUBLIC OF LIBERIA, TO P. EDWARD NELSON, II, Esquire

SHERIFF FOR MONTSERRADO COUNTY, G R E E T I N G S:

YOU ARE HEREBY COMMANDED TO seize and expose for sale the lands, goods, and chattels of Igal Ammons, the above named defendant and if the sum realized therefrom be not sufficient then his real property, until you shall have raised the sum of FIFTEEN THOUSAND DOLLARS ($15 000.00), with interest thereon at the rate of six (6) percent per annum, from the 25th day of August, A. D. 1964 until payment shall have been made; and in addition thereto, and if you cannot find any land, goods, and chattels of the said Defendant, you are hereby commanded to arrest his body and have him committed to the Central Prison where he was but absconded there-from, unless he will pay you the said sum of money, or show you property to seize and sell for the same.

AND UPON receiving from the said sale, or other-wise, said sum of money, you are further commanded to pay over to McDonald M. Perry, the above named plain-tiff, the sum necessary to satisfy the judgment therein; and reserve unto yourself the said cost and expenses, and you will make known to this court at the next Term thereof to be held on the third Monday in June, A. D. 1980, your doings and proceedings under this writ.”
The aforesaid writ was executed and the property which was the subject of the information was offered and sold at a public auction to the highest bidder, Mr. Nelson Diegbgha for the sum of $20,000.00 (TWENTY THOUSAND DOLLARS). Having been informed by the sheriff of said sale and the issuance of a sheriff’s deed to the buyer, the court ordered a writ of possession issued and placed in the hands of said sheriff for service on the occupier of the subject of the execution and sale.

The occupier of said premises happened to be Mr. Fouad Ashkar of the City of Monrovia who is the informant in the present bill of information. The informant, Fouad Ashkar, had gotten on the premises by virtue of a lease agreement with Mr. Igal Ammons, concluded in 1974, and extending to the year 2004. In consequence thereof, he had erected a concrete building thereon for business purpose. The informant was never cited as a party to the summons issued against Mr. Ammons; he was not informed of the execution sale; and he was not cited to appear during the course of the transaction. For those reasons, he refused to yield to the writ of possession which sought to eject him. He had therefore filed this bill of information contending that an action of ejectment was the proper remedy against him and not a writ of possession. More-over, informant contended that the sale of said property merely gave it a new owner and left his leasehold interest unaffected.
The respondents on the other hand, in resisting the information, maintained that Igal Ammons, having hidden the property from judicial execution earlier in 1965, his act amounted to a fraud, and he and his lessee should not thereby be allowed to benefit from their misdeeds. Consequently, they said, an action of ejectment was unnecessary to oust or evict the lessee, and that a writ of possession should suffice to allow the sheriff to put the purchaser of the property in possession.
The information was heard and denied. It is from this denial that informant has appealed to this Court of final resort.
From the facts and circumstances of this case, the main issues before us for adjudication are the following:

1. Whether or not the sheriff at an execution sale of real property has an obligation to put the buyer in physical possession of the property?
2. What are the rights of an execution purchaser as against the rights of a lessee in actual possession by virtue of a prior lease agreement concluded by the original owner, the then lessor, and how can said purchaser acquire possession from third party?

3. Whether or not fraud committed by a prior owner of a realty can affect the interest of a lessee who had entered the premises without notice of said fraud?

The first issue for our deliberation is whether or not the sheriff, at an execution sale of real property, has an obligation to put the buyer in physical possession of the property. Our statute does not indicate whether the sheriff at an execution sale has an obligation to put the buyer in actual physical possession of realty sold at such sale.
However, it does indicate that within ten days after the sale, the sheriff shall execute and deliver to the purchaser proof of publication., service and posting of the notice of sale, and a deed which shall convey the right, title, and interest sold. The statute also states that such proof, as enumerated, may be filed and recorded in the office of the registrar of deeds of the county where the property is located. Civil Procedure Law, Rev. Code 1 :44.43. Sale of Real Property, (4) Conveyance; Proof of Notice. From what the statute says, it appears that the sheriff is merely supposed to deliver the buyer’s deed and other such documents that pass title in the property to the buyer.
Notwithstanding the statute, however, our case law autho-rity in this jurisdiction provides that every sheriff to whom a writ of execution or sale has been directed, shall have autho-rity, and it shall be his duty to put the purchaser or purchasers of any property, moveable or fixed, sold by virtue of such writ, in possession of such property, if the sheriff himself or the person against whom the writ was issued, is in possession of the same. It shall be his duty, and he shall have authority, to execute all instruments of writing or other evidence of title, which may be necessary or proper for the security of such purchaser or purchasers. See Bracewell and Caranda v. Coleman et al.[1938] LRSC 3; , 6 LLR 176, 183 (1938). The Bracewell case stresses that there is only an obligation to put purchaser in possession where the sheriff himself or the person against whom the writ was issued is in possession of the property. Otherwise, according to the statute, the sheriff is merely obligated to the buyer for his deed and other documents affirming the conveyance of title to the property.

At common law, it is ordinarily the duty of the execution officer to deliver goods bought at an execution sale to the purchaser.
In the case of a sale of a portion of a mass of personal property, the sale is not regarded as complete before there has been a separation and delivery of the portion sold. However, it is not necessary that the officer formally hand over the property to the purchaser.
An execution officer is ordinarily held not to be under obligation to deliver possession of realty purchased at the execution sale to the execution purchaser, who is left to acquire possession as he can. Under this rule, the execution officer may not turn the person in possession out of possession by force without judicial proceedings to secure possession. 30 AM JUR 2d., Execution, § 479.
From the foregoing, the sheriff at an execution sale is not obliged to put the purchaser of realty into possession, except where the sheriff himself, or the execution debtor is in posses-sion; otherwise, the execution purchaser with a sheriff’s deed can obtain possession of premises purchased by resort to other legal means available to him. That means that the purchaser of realty at an execution sale cannot be put in possession of the property which is in the possession of a third party by means of a writ of possession as was sought to be achieved by the sheriff in this case.
Our statute is silent on the rights of the purchaser of realty at an execution sale vis-a-vis the lessee of the former owner in possession who had not been made a party; and in general, nothing is said as to how such a buyer can wrest possession of said property from a third party.
Generally, however, it is firmly established that a sale of real estate under judicial proceedings ordinarily will not affect any right, title, or interest in the premises that may be held by any person who is not in some manner a party to the proceed-ings in which the sale is had. 47 AM JUR 2d., Judgments, § 267. Intestate of persons not joined as parties, p. 510.

In certain cases, the interest of an execution purchaser is superior to that of a lessee of the execution debtor. This is true where the lessee acquired his interest after the attachment of the lien of the judgment, or, after the levy of execution, under which the property was sold. In such case, the execution purchaser may disaffirm the lease by giving the tenant notice to quit; and upon notification, at least the lessee becomes a tenant at will of the execution purchaser. If the purchaser chooses to disaffirm the lease, he may not claim anything under the terms thereof. On the other hand, in the absence of circumstances calling for the application of a statutory provision to the contrary, the execution purchaser takes subject to a lease given by the judgment debtor before the judgment lien accrued, where such tenancy has not expired. In such case, the tenant becomes a tenant of the execution purchaser for the term and under the conditions of the lease. The execution purchaser is substituted for the lessor, and the tenant becomes his tenant, whose possession is his possession. Since an attornment is equivalent to a novation, an actual attornment by the tenant to the purchaser creates the relation of landlord and tenant between them, regardless of whether the lien of the judgment under which the execution sale was held was prior or subsequent to the lease. 30 AM JUR 2d, Execution, § 451, at 707-708. It has also been held in this jurisdiction that the purchaser takes subject to the lease, although he has no actual knowledge thereof. Watson v. Oost Afrikaansche Compagnie, 13 LLR 94 (1957). Furthermore, as a general rule, a purchaser of property at a judicial sale becomes entitled to the rents and profits of the property that accrue subsequently. 47 AM JUR 2d., Judgments, § 237, at 489.

From the foregoing, the appellant in this case became a tenant of the appellee as of the day the latter received a sheriff’s deed for the premises bought. The judgment which was sought to be satisfied by the execution sales was rendered in 1965, and the lease by which appellant holds possession of the land in question was concluded in 1974, nine years after the mentioned judgment. That judgment did not impose a lien on any particu-lar property of Igal Ammons, but by the writ of execution, it sought to secure property belonging to Mr. Ammons as the subject of an execution sale to satisfy the monetary judgment of $15,000.00 (FIFTEEN THOUSAND DOLLARS) owing Mr. Perry. But from 1965 to 1983, about eighteen years, nothing is heard about property belonging to Mr. Ammons until in 1983 when the present property occupied by appellant was identified by Mr. Perry as belonging to Mr. Ammons. Mr. Ammons was summoned to the proceedings to ascertain his title to the property but he never appeared. The appellant, lessee of Mr. Ammons, was not cited to appear, and could not be present to show his interest. The said property, however, had a judgment lien properly attaching to it only in 1983 when the sheriff was mandated to expose it to an execution sale which means that the lien is later than the lease of appellant which came in 1974. That means also that after purchasing said property, the execution purchaser took over the rights of the former owner, so that appellant now becomes his lessee as though he was Mr. Ammons who actually signed a lease agree-ment with appellant in 1974. Appellant then became the new tenant of the new landlord, and the former is as responsible to the latter for the rents under the lease as he used to be to Mr. Ammons.
Next, we will consider the means open to an execution purchaser to obtain possession of realty bought at an execution sale. Our statute merely provides that ten days from the sale, the sheriff shall execute and deliver to the purchaser proof of publication, service, and posting of the notice of sale, and a deed which shall convey the right, title, and interest sold. Civil Procedure Law, Rev. Code 1 :44.4 (4), Conveyance: Proof of Notice.
But, according to the case of Bracewell v. Coleman, supra, the sheriff at an execution sale can only put the buyer in actual physical possession of realty sold if he, the sheriff, or the exe-cution debtor, was in possession.

An execution purchaser of real estate may, if he can do so without a breach of the peace, enter upon the purchased realty without the consent of the former owner free from liability as a trespasser. 30 AM JUR 2d., Execution, § 480, Purchaser’s to seize and enter into possession, at p. 723. He can also institute an action to quiet title or an action of ejectment against the former owner or other persons in wrongful possession of the property. 30 AM JUR 2d., Execution, § 481, at 723. However, according to the tradition in this jurisdiction, ejectment will not lie to evict a lessee from possession held under a leasehold right to property subsequently sold to the plaintiff by the lessor. Watson v. Oost Afrikaansche Compagnie, supra; Ajavon v. Bull, 14 LLR 178(1960).
Appellees contend that Mr. Ammons had committed a fraud by secretly withholding this property from execution since the judgment in 1965, and that therefore he should not be allowed to benefit by his own misdeed. This contention of appellees shall form the basis of our next deliberation: Whether or not fraud committed by the previous owner of the subject matter of an execution sale can work against the interest of his lessee in possession who had entered the lease agreement with-out notice of the fraud? While it is true that the law cannot allow one to benefit by his own evil, yet, whatever fraud was committed by Mr. Ammons in hiding his property from the law has not been attributed to appellant in this case. There is no showing in the records that appellant in any way knew of the hiding of said property from execution when he entered into the lease agreement with Mr. Ammons, nor is there any show-ing that appellant in any way condoned, aided or abetted said fraud. Relying on the good representations made by Mr. Ammons, said appellant had entered into the lease agreement with him for a period of twenty years which is still in force until the year 2004.
The appellant therefore had gone ahead and erected a building on the premises, which he now uses for business purpose. In fact, to permit appellant to enjoy his leasehold interest does not in any way benefit Mr. Ammons since we held earlier that appellee now becomes the new lessee of the execution purchaser, paying rent to the latter and not to Mr. Ammons, his former landlord.
Indeed the circumstances of the present case are such that it will be grossly inequitable to deny appellant the benefit of said lease simply because Mr. Ammons had allegedly deceived the judicial authorities.

WHEREFORE, and in view of all that we have said herein, it is the holding of this Court that the judgment of the court below be reversed. The information is granted to the effect that the informant/appellant remains on and enjoys his leasehold rights as he continues to pay the rent to the execution purchaser as it falls due under the lease agreement up to and including the date of the expiration of said lease agreement. And it is so ordered.

Judgment reversed; information granted.