POHLMAN J. BRACEWELL, Sheriff of Montserrado County, and H. LAFAYETTE HARMON, Appellants, v. AL-HAJ MASSAQUOI and NATHANIEL MASSAQUOI, Administrators of the Estate of the Late MOMOLU MASSAQUOI, Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Argued February 10, 1942. Decided February 20, 1942.

1. Any party against whom a judgment or decree is rendered by an inferior court is entitled to an appeal as of right under the statute laws of this Republic.

2. An appeal when perfected operates as a stay of execution and the sheriff is thereby enjoined from taking any further steps under any writ of execution or otherwise.

The mortgagee initiated a proceeding in equity in the circuit court to correct an alleged error in a lot number in a mortgage deed. The court decreed that the number be corrected and the appellees, the administrators of the mortgagor, appealed to the Supreme Court. After the appeal had been perfected and pending review by the Supreme Court, the trial judge heard a bill in equity for the foreclosure of the mortgage deed, decreed it foreclosed, and issued a bill of sale. Thereafter the sheriff, appellant, having sold the land to H. Lafayette Harmon, co-appellant, executed a deed for the corrected lot number. The Commissioner of Probate refused to admit the sheriff’s deed to probate. On appeal to the Supreme Court from the refusal to probate the corrected deed, denial of probate affirmed.

H. Lafayette Harmon for appellant. A. B. Ricks for appellee.

MR. JUSTICE TUBMAN delivered the opinion of the Court.

Almost, if not entirely, unprecedented in the annals of judicial proceedings are the attending circumstances in which this case found its genesis.

It appears from the record certified from the Circuit Court of the First Judicial Circuit to this Court that a mortgage deed was executed between the Massaquois, as mortgagor and mortgagee, for a town lot Number 226, situated in the City of Monrovia; but the description of the said lot mentioned in said deed of mortgage, beside the number, describes it as a different plot of land from that of the number aforesaid.

The mortgagee, desiring to sell his mortgage to Frank E. Tolbert, discovered, according to the allegation of him, the mortgagee, that there was a mistake in the number, and consequently a bill in equity was filed by the mortgagee praying for a definitive decree in equity to have said alleged mistake appearing in the said deed of mortgage corrected.

After a hearing on the matter, His Honor the Judge of the Circuit Court aforesaid decreed that there was a mistake in the number and that same should be corrected, to which decree the administrators of the mortgagor, said mortgagor having died in the interim, excepted and prayed an appeal from said final decree to this Court for the purpose of review.

His honor the trial judge aforesaid approved the bill of exceptions and appeal bond, and a transcript of the record was sent forward in harmony with the statute of appeals to this appellate tribunal for review:

While the said cause was docketed up here and pending review, his honor the trial judge sat and heard a bill in equity for the foreclosure of the said deed of mortgage, decreed it foreclosed, and issued a writ of sale 1 Acting upon the authority of this, the Sheriff of Montserrado County sold said piece of land to H. Lafayette Harmon, who he alleged was the highest bidder and executed a certificate to this effect, which reads as follows:

“REPUBLIC OF LIBERIA MONTSERRADO COUNTY.

“CERTIFICATE OF SALE

“I, Pohlman J. Bracewell, Sheriff for the County of Montserrado, do hereby certify that on the loth day of August A. D. 1940, at the Court House in the City of Monrovia at [time omitted] o’clock p.m. pursuant to the order of Court and Notice of Sale hereto annexed, I sold to H. Lafayette Harmon, he being the highest bidder, the premises lot number two hundred and seventy-two (272) on Ashmun Street, in the City of Monrovia, described in said Notice of Sale; and I therefore certify that such sale was in all respects honestly, fairly and legally conducted to the best of my knowledge and ability and the proceeds thereof will be disposed of, as follows, to wit:

[Please see pdf file for figures]

“Sgd. POHLMAN J. BRACEWELL,
Sheriff, Mo. C.
“MONROVIA, LIBERIA, August 20, 1940
Certified true copy (Sgd) CARNEY JOHNSON
Clerk of Court.
“True copy of the original. (Sgd) H. LAF. HARMON.”

The sheriff thereafter executed a sheriff’s deed in favor of Mr. Harmon for lot Number 272 instead of lot Number 226 which number 272 is the number that the bill in equity pending before us prayed to have inserted in the deed. Since the matter was still sub judice, the sheriff’s sale of the lot with the number already corrected would seem to have anticipated and to have disregarded , what decision this Court would ultimately render in the premises.

Thus the trial judge enforced his decree for the correction of the number in said case, although his said decree had been appealed from, the appeal had been perfected, and the case had been entered on the docket of the Supreme Court and was awaiting hearing here.

When the said sheriff’s deed was offered for probate, it was objected to by the administrators of the estate of the late Momolu Massaquoi, mortgagor, on grounds that there had been no lot Number 272 mortgaged by their intestate, but that lot Number 226 had been, and that, although the said mortgagee had prayed for the change of the number from 226 to 272, said matter had not been decided by the appellate court.

His Honor the Commissioner of Probate thereupon ruled as follows:

“On inspection of the pleadings and records filed in this matter we find a copy of the certificate from the clerk of the Supreme Court dated September 9, 1940, to the effect that respondents, now objectors, having completed their appeal to said Court, the said appeal seems to have grown out of exceptions taken to the ruling of the Judge of the First Judicial Circuit Court, on a petition filed by one Frank E. Tolbert for change of number in a certain mortgage deed, from 226 to 272, said case being on appeal as aforesaid it is obvious then, that this Court cannot, and will not assume jurisdiction of it. The Court therefore refuses to admit said deed to probate, sustains count one of objections, overrules the Motion to dismiss objections and dismisses same with cost against respondents. AND IT IS SO ORDERED.

“GIVEN officially and in open court this 8th day of October A.D. 1940.
“(Sgd) N. H. GIBSON
Commissioner of Probates, Mo. Co.”

To this ruling of the Commissioner of Probate, the Sheriff of Montserrado County and H. Lafayette Harmon excepted and sued out an appeal to this Court.

In view of certain incidental proceedings contemplated by this Court, the Court will, in fairness to all parties concerned, refrain from making any expression concerning the propriety of the legal steps taken by the trial judge and the parties to the foreclosure proceedings. Instead, the Court will now proceed to decide whether or not His Honor the Commissioner of Probate was legally correct in refusing to admit to probate the sheriff’s deed.

Any party against whom a judgment or decree is rendered by an inferior court is entitled to an appeal as of right, under the statute laws of this Republic :

“Every person against whom any judgment is rendered, shall be entitled to appeal from any decision or opinion of any court, except such court of appeals.” Stat. of Liberia (Old Blue Book) 41, ch. XX, § 1, 2 Hub. 1578.

An appeal, says the statute of appeal, shall serve as a supersedeas:

“An appeal when perfected operates as a stay of execution, and the sheriff is thereby enjoined from taking any further steps under any writ of execution, or otherwise.” 1 Rev. Stat. § 427.

With the foregoing statute before his eyes and in his mind, we wonder how His Honor the Judge of the Circuit Court for the First Judicial Circuit could have enforced his judgment that had been appealed from, by bill of exceptions and appeal bond approved by him, to the Supreme Court.

Not only does the statute law forbid it, but so also do the common laws of America and England which have been adopted by the Legislature of Liberia as the laws of this country when they do not conflict with our statutes. In support thereof, we cite the following:

“When an appeal with a supersedeas or stay has been taken the jurisdiction of the trial court is suspended as to all matters necessarily involved in the appeal. Accordingly, pending an appeal, the lower court, as a general rule, has no power to allow amendments of the proceedings. For example, pending an appeal from an order denying a motion to quash an execution, the court has no power to allow an amendment of the execution. So, also, pending an appeal the trial court has no jurisdiction to entertain a bill to review the judgment, nor can the trial court set aside the order appealed from. And when a judge has directed a stay of proceedings, and an undertaking on appeal has been executed pursuant to his direction, the lower court has no further control over the matter, and cannot discharge the order staying proceedings after it has been complied with. . . .” 2 R.C.L. Appeal and Error § 95, at 120 (1914) .

“If an appeal or writ of error does not operate by statute as a supersedeas or stay, and no supersedeas or stay is granted by the court or obtained by giving a statutory bond or undertaking, a judgment or decree which is final and requires no further action in the court below may be enforced by execution or otherwise notwithstanding the pendency of the appeal or writ of error, unless it is vacated thereby. But the pendency of an appeal or writ of error prevents further action by the court below in enforcement of the judgment, order, or decree appealed from, in whole or in part, so long as the appeal or proceeding in error is undisposed of; and, although the lower court may not be deprived of jurisdiction to such an extent as to prevent it from proceeding in collateral matters, or for the preservation of the fruits of the litigation, it cannot take such action as will be, in effect, an execution of its judgment or will destroy the subject of the appeal or place the funds involved where they will be beyond the control of the ultimate judgment or decree.” 3 Corpus Juris Appeal and Error § 1375, at 1263 (1915).

Nor do we think that there is any merit in the contention of appellants that the parties in the case of foreclosure were not the same as in the bill in equity for the correction of the lot number, for the correction of the lot number was the real point in issue and the suit was as much one in rem as in personam.

In this case His Honor the Judge of the Circuit Court by his decree in foreclosure has changed the number of the lot in said mortgage deed from number 226 to number 272 and has ordered the property sold, and the sheriff has sold the lot Number 272 and executed a sheriff’s deed therefor to H. Lafayette Harmon without waiting for the decision of this Court to say whether or not the number should be changed, thereby either affecting adversely any judgment which the appellate court might enter contrary to the final decree of the said judge or forestalling any affirmative judgment that this Court may decide to enter.

In our opinion, therefore, His Honor the Commissioner of Probate acted in complete harmony with law when he refused to admit the said sheriff’s deed to probate for the reasons assigned in his ruling and quoted in a former part of this opinion, and we are further of the opinion that same should be affirmed and the appellants ruled to pay all costs ; and it is hereby so ordered.

Affirmed.