CHARLES E. COOPER, Appellant, v. FLORENCE COOPER-SCOTT, Appellee.

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

Argued March 22, 1951. Decided May 11, 1951.

1. In an action of ejectment, the mere showing of heritable blood does not sufficiently establish title.

2. In an action of ejectment, title must be proved by the successful party.

3. It is incumbent upon counsellors at law to make use of Rule IV of the Revised Rules of the Supreme Court to correct errors in the circuit courts.

Plaintiff-appellee instituted an action of ejectment against defendant-appellant, and judgment was entered for her on the jury’s verdict. On appeal, judgment reversed and remanded.

R. F. D. Smallwood and H. Lafayette Harmon for appellant. T. Gyibli Collins for appellee.

MR. JUSTICE REEVES delivered the opinion of the Court.

The history of the case, as the certified records transmitted from the court below to this Court disclose, is as follows :

Florence Cooper-Scott, legatee under the will of the late James B. R. McGill, Jr., maternal grandson of E. J. Roye, by and through her husband, Hugh R. D. Scott, plaintiff, instituted an action of ejectment against Charles E. Cooper, defendant, in the Circuit Court of the Sixth Judicial Circuit, Montserrado County, for the recovery of a tract of land bounded and described as follows:

“COMMENCING at the southwest angle of adjacent lot number 324, entitled ‘P’ of J. H. Roberts’ Estate and running North 52 degrees West 35 feet or 53 links ; thence North 38 degrees East 132 feet or 200 links more or less (i.e.) to the water edge; thence South 52 degrees East 35 feet or 53 links; thence South 38 degrees West 132 feet or 200 links more or less (i.e.) to the water edge, to the place of commencement and contains 6895 square feet of land and no more, as per deed of lease above referred to.”

She alleged that the title of said tract of land had come to her under the fourth clause of the will of James B. R. McGill, Jr., a copy of which will was annexed as exhibit “A,” and that the defendant, without any just cause whatsoever, detained said tract of land from her. Defendant Cooper, in his answer after raising several demurrers, pleaded the statute of limitations and a general denial, alleging, in conclusion, the holding of a long line of unbroken and successive bona fide and genuine title deeds to the property in question. Pleadings were filed by the parties up to the surrejoinder.

On June 9, 1949, Resident Judge King, having previously heard the arguments on the pleadings, rendered a lengthy ruling in which he ruled out defendant’s answer, and concluded :

“The case is therefore ruled to trial on the issue as to whether or not the late J. B. R. McGill, Jr., possessed heritable blood from the Roye family. Upon the finding and establishing of this fact, judgment must be in favor of plaintiff. And it is so ordered. Cost to abide final determination.”

The trial, which commenced on June 22, 1949, before Resident Judge Richards (who, by appointment, succeeded Judge King) was very embarrassing to said judge and the parties litigant because of the concluding portion of a ruling of the former judge on the pleadings. The statute defining an action of ejectment declares:

“Ejectment is an action to recover possession of real or immovable property, wrongfully withheld by the defendant from the plaintiff.” 1841 Digest, pt. II, tit. II, ch. I, sec. 13 ; 2 Hub. 1526.

The former judge committed error in confining and restricting the trial to the issue of whether the late J. B. R. McGill, Jr., possessed heritable blood from the Roye family, Proof of heritable blood could not constitute proof of title to as required in an action of ejectment. For a clearer understanding of the embarrassing situation created by such an error, we quote the following ruling of the trial judge, on the first day of the trial, when the following question was propounded to plaintiff’s first witness during the direct examination.

“Have you been served with a writ of summons, which we call a writ of duces tecum, to produce certain documents in support of the property in question; and, if so, will you please produce them?”

Objection: “The question of title is not an issue in this case, hence, it is without the scope of the court’s ruling.”

Court’s Ruling: “It is fundamental in ejectment proceedings that title to real property is an indispensable issue but the court finds itself circumscribed by the ruling of former Judge King, sending the case to trial on the sole issue of whether J. B. R. McGill, Jr., possessed heritable blood from the Roye family. To go into issues involving title would be to go beyond the ruling of former Judge King, which we are not competent to do under the law. In view of this the ‘objection is sustained.”

On June 26, 195o, the sixth day’s session, plaintiff offered into evidence documents including a photograph of the tombstone of the natural mother of J. B. McGill, Jr., as further proof of heritable blood in said heir; the will of J. B. McGill, Jr.; and the executor’s deed conveying his heritable interest, title, and right of possession in lot number 325, or lot number “P,” as documentary proof. Defendant objected to the introduction of such documents on grounds of irrelevancy to the issue ruled to trial by former Judge King.

In ruling on defendant’s objection, Resident Judge Richards noted that the court was aware of the fundamental principle that title is an indispensable element in ejectment. But Resident Judge Richards found himself obliged to follow the ruling of former Judge King that the case be tried on the single issue of whether J. B. R. McGill, Jr., possessed heritable blood from the Roye family. Nor did he stop there, but, continuing, said : “Upon the finding and establishing this fact under the direction of the court, judgment must be in favor of plaintiff.”

Thus, although both plaintiff and defendant filed documents showing claim to title to said piece of realty, yet, former Judge King’s ruling did not take these documents into consideration. Resident Judge Richards remarked, however, that, although he could not agree with such a ruling in an ejectment case, he had no alternative but to be governed thereby.

At this point, defendant declined to proceed further because Resident Judge Richards was governed by the rulings of former Judge King in not permitting the question of title to form a part of the issue in this case. But he asked the court to charge the jury that, in a case of ejectment, title must be proved; and that the question of blood relationship is not title, and cannot give title to property independent of real title by deed. Thereupon defendant’s counsel rested.

The court instructed the petty jury as requested and it retired for deliberation. When the court resumed business, said petty jury handed in the following verdict :

“We the petty jury, after hearing the evidence, unanimously agree that the plaintiff is entitled to the property in question.”

What a waste of precious time; what a futile expenditure of energy!

Defendant’s counsel excepted to said verdict, and gave notice that he would, in due time, file a motion for new trial. Accordingly, on June 28, defendant filed said motion for new trial on the following counts :

1. The case at bar, being an action in ejectment, should depend upon title to real property and not upon heritable blood, which, alone, is not evidence of title to real property. No evidence of title was placed before the jury. Although copies of defendant’s title deeds were filed with the answer and formed a part thereof, they could not be introduced before the jury, because of the ruling of former Judge King. The verdict of the jury was therefore contrary to the evidence.

2. Said verdict is manifestly against the instruction of the court upon the law controlling the case, in that the court instructed the jury, inter alia, that, in a case of ejectment, some title must be proved to enable the plaintiff to recover. Since no evidence of title was produced or laid before the jury, the verdict was contrary to the instructions, and should be set aside.

Plaintiff filed a resistance to said motion, but we do not find it necessary to make any comment thereon at this time. On July 10, 1949, Resident Judge Richards issued the following ruling:

“The court concedes the points raised in defendant’s motion for new trial; yet, in the face of the ruling of former Judge King, the court does not see what benefit could be derived by granting a new trial. The motion is therefore denied and final judgment rendered.”

Defendant appealed to this Court, filing a bill of exceptions containing fifteen counts. The first count, in our opinion, suffices to defeat the verdict and judgment. It reads as follows :

“1. Because, on June 9, 1949, former Judge King ruled on the issues of law, in said case, dismissing the answer of the defendant in which the question of title was raised and supported by title deeds and other exhibits, as well as other pleadings of the defendant, and sent the case to trial on a single issue : ‘Whether J. B. R. McGill, Jr., possessed heritable blood from the Roye family.'”

The first question that presents itself is that of responsibility for this abortive trial, waste of precious time, and expended useless energy. Concededly, former Judge King made an erroneous ruling. But should he be held absolutely responsible? In the opinion of this Court, former Judge King was not alone responsible. As for the trial judge, we are compelled to acquit him of any responsibility, since he was bound to uphold the ruling of his predecessor.

Perusing the records transmitted to us, we find that five counsellors of this Court were connected with the action when former Judge King made the erroneous ruling; and, although thirteen days elapsed before Resident Judge Richards commenced the trial, no steps were taken to have said error, which affected the interests of both the plaintiff and the defendant, corrected. As ministers at this bar, the counsellors were derelict in attending to their clients’ interests, and are therefore responsible for much embarrassment and waste of time and energy. Said counsellors were conversant with Rule IV of the Revised Rules of this Court, a L.L.R. 663 (1915), and know that, had it been resorted to, and taken advantage of, relief could have been had, error corrected, and a correct trial conducted. It was to prevent such embarrassing situations that this Court made such a rule.

It is a reflection on the legal profession when counsellors, in dereliction of their duties, permit a trial judge and themselves to be confronted with such an erroneous ruling, thereby causing the trial to be abortive and futile. This is a progressive age ; the Court therefore insists that the standard of the legal profession be kept abreast with the progress and developments of the new Liberia.

In view of the embarrassing situation encountered during the trial, we have no hesitancy in reversing the ruling of former Judge King and the judgment of the court below. We remand the case with orders that the Circuit Court of the Sixth Judicial Circuit, Montserrado County, resume jurisdiction de novo, commencing with the hearing and deciding of the legal issues, each party paying his own costs and one half of the jury’s costs.

Reversed.