NANCY SHOEMAKER-DELINE, Appellant, v. ARAMINTA B. SHOEMAKER-PORTE, by and through her husband, MOSES A. PORTE, ROSE SHOEMAKER-MOORE, by and through her husband, HARRY MOORE, and LYDIA SHOEMAKERDYER, by and through her husband, ERIE DYER, heirs of WILLIAM BYRD SHOEMAKER, Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 6, 1968. Decided February 7, 1969. 1. An answer must join issue on the merits of the case as raised in the complaint, or be deemed not to have raised a justiciable issue. 2. Arbitration must properly be invoked by one of the parties before the verdict of the jury, or by both, after a verdict, in order to empower the court to apply arbitration. 3. Each averment of a pleading shall be simple, concise and direct, and not, as in the instant case, clouded and uncertain, as occasioned by proferted deeds to property not at issue. Plaintiffs sued in ejectment, claiming wrongful possession by defendant of two separate parcels of land to which plaintiffs had title. Defendant denied the allegations in the complaint and proferted deeds to three other parcels of land. No request was made before trial for arbitration. The trial court dismissed the defenses of the defendant and held her to a bare denial. The jury’s verdict for plaintiffs was affirmed by the court and judgment entered, from which defendant appeals. The judgment was affirmed with the modification that a surveyor be appointed to fix the boundaries of plaintiffs’ land. The Simpson law firm, by G. P. Conger-Thompson for appellant. N ete Sie Brownell for appellees. MR. JUSTICE MITCHELL delivered the opinion of the 221 court. 222 LIBERIAN LAW REPORTS The appeal arose from an action of ejectment in the Circuit Court of the Sixth Judicial Circuit. According to the record on appeal, plaintiffs claimed right of title and possession to two parcels of land situated in Crozierville, Montserrado County, bearing the numbers two and three. They averred further that the said two tracts of land were originally purchased and owned by William Byrd Shoemaker I, the grandfather of the plaintiffs, which descended on his death to their father, William Shoemaker II, the only heir and have thus descended to the plaintiffs. They made profert of the relevant deeds for the property and alleged that defendant was unlawfully withholding possession of the property. The defendant denied the unlawful withholding of the property and submitted deeds to three other parcels of land. The pleadings in the case rested at the surrejoinder, and at the June 1967 Term of the Circuit Court, Sixth Judicial Circuit, Hon. Joseph Patrick Findley, judge presiding by assignment, heard the issues of law involved in the pleadings and dismissed the legal defenses in defendant’s answer and rejoinder because, as he claimed, no justiciable issue had been raised by her. Subsequently, the case was called for trial of the facts before Hon. John A. Dennis, presiding over the December Term of the aforesaid court. The case having been heard, the jury returned a verdict in favor of the plaintiffs, to which the defendant excepted and filed a motion for a new trial. The motion was denied and the court rendered judgment affirming the verdict. It is from this judgment the defendant excepted and brought her case on appeal for review by this Court on a bill of exceptions containing four counts. When this case was called for argument, appellees’ counsel contended that the court had no alternative but to dismiss the answer and rejoinder of the defendant, because they presented no justiciable issue. On the contrary, appellant’s counsel maintained that since his an- LIBERIAN LAW REPORTS 223 swer specifically denied that the property described in plaintiffs’ complaint is the tract of land that the appellant occupies, this denial raised a justiciable issue and, therefore, should not have been disposed of in any other manner than by the inception of a board of arbitrators composed of competent surveyors, to determine the metes and bounds of the deeds at issue. We would like to make this reference in passing: this is a case of ejectment in which plaintiffs claim ownership to two tracts of land, lots no. two and three, composed of thirty and sixty acres, respectively, and making a total of ninety acres. They also allege that the defendant below, now appellant, withholds possession thereof from them. It is nowhere averred, neither in plaintiffs’ complaint nor in defendant’s answer, that this land is contiguous to any property owned by the defendant. The defendant in her answer categorically denies withholding plaintiffs’ property and avers that she is located on blocks no. four, five, and six, which descended to her from her father. She also attempted to introduce into the case third parties whom she alleged were rightful and legal owners of the property that the plaintiffs sought to recover by ejectment. This appears to be a departure from our system of pleading because, in the first place, defendant was sued for withholding possession of lots two and three, and she made profert of two deeds with her answer, for lots five and six, which was not the property described in plaintiffs’ complaint. This was not a response to the allegations in the complaint. Moreover, in count two of the answer, she did not aver that the third parties, whom she claimed were rightful owners of the property in litigation, had gained title by adverse possession. This, in substance, made .her answer more complicated and of less legal effect. According to our Civil Procedure Law, 1956 Code, tit. 6, � 251 (in part) : “Each averment of a pleading shall be simple, concise and direct.” We are not in complete accord with the ruling of the 224 LIBERIAN LAW REPORTS trial court with reference to its refusal to send a recognized surveyor to the spot to make a survey of plaintiffs’ land claimed according to their deeds. But we will treat this point later in this opinion. However, for the evasive manner in which the defendant’s answer joined issue with the plaintiffs’ complaint by presenting an issue separate and distinct from the allegations of the complaint, it is our opinion that the court below had no alternative but to dismiss such defense. Count one of the bill of exceptions is, therefore, not sustained. When the defendant was on the witness stand, she testified to the fact that lots two and three in the Settlement of Crozierville, containing 3o and 6o acres of land, respectively, which was the property of William Byrd Shoemaker II and which plaintiffs claim to be their property, was not her property and she made no claim thereto. Besides this, the metes and bounds of the defendant’s deeds made profert, show no connection with the plaintiffs’ property, as was pleaded by her in her answer, because she only produced deeds for lots five and six, which had no bearing on the case. This was verified by the testimony of the witnesses produced at the trial. Hence, it is our opinion that the jury’s verdict was in accord with the evidence produced at the trial. Count two, therefore, of the bill is not sustained. The verdict of the jury being in accord with the thrust of the evidence, the court did not err in denying the motion for a new trial, and, obviously, the court below did not err in rendering final judgment thereon, since the plaintiffs were entitled under the law to recover on the strength of their title. There was a motion to intervene filed during the course of the case by Messrs. Sam Jordon, et al. However, because this motion was later withdrawn by the movents, it does not warrant our attention and consideration. The appellant did not plead adverse possession, nor did LIBERIAN LAW REPORTS 225 she produce title in any form showing that the tracts of land were contiguous to the land of the plaintiffs, or in any way connected therewith. She did not deny that the lots of land sued for by the plaintiffs were the property of the plaintiffs, or that they did not own land in the area. Instead, she endeavored to set up a third-party claim, which was evasive and inconsistent, and by this means she did not present a triable issue or, in other words, she did not join issue on the merits; which Professor Ballentine in his commentaries described as “creating or raising an issue of fact in the pleading,” which is considered not well taken if it does not go to the merits of the case. In this case, the disparate deeds made prof ert failed to join issue, and there was no necessity for a board of arbitrators to determine the boundaries between the land of the plaintiffs and the defendant. Our Civil Procedure Law, 1956 Code, tit. 6, ch. 26, specifically provides for the manner by which arbitration is invoked, and in this case, neither of the parties having requested arbitration prior to, nor after the verdict when both parties would have had to consent, there was no authority for the court sua sponte to have done so. Therefore, the judgment of the court below is hereby affirmed, with instructions that in placing the plaintiffs in possession of their land, the said plaintiffs through the court shall engage the services of a competent surveyor to accompany the sheriff to the spot and determine the boundary lines for lots two and three, located in Crozierville, Montserrado County, before placing them in possession thereof. Costs are hereby ruled against the defendant. And the clerk of this Court is hereby ordered to send a mandate to the court below informing it of this opinion. And it is hereby so ordered. Affirmed, as modified.