KISSELL, Appellant, v. C. P. DIAGO, Appellee.

APPEAL FROM THE CIRCUIT COURT, TENTH JUDICIAL CIRCUIT, LOFA COUNTY. Argued October 25, 1973. Decided November 23, 1973. 1. Though a deed may have been probated and registered improperly, and is consequently voidable, it is only void as against a properly probated and registered deed to the same property. 2. A person can only recover land on the strength of his own title and not the weakness of his adversary’s claim to title. Though the appellant had withdrawn his case in the lower court, the Supreme Court required appellee’s counsel to proceed with argument, because the appeal had been perfected and the lower court had consequently lost jurisdiction in the matter. Appellee had instituted an action in ejectment, claiming appellant was wrongfully in possession of land owned by him. Both claimed their deeds showed they owned the land in dispute. However, it appears that the boundaries of their contiguous properties were uncertain. The appellee also contended that appellant had failed to timely probate his deed as required. After trial, judgment was rendered for plaintiff, from which an appeal was taken. The Supreme Court took the view that no court could determine the validity of the deeds at issue until the land of both claimants was properly surveyed. For that reason, the judgment of the lower court was reversed and the case remanded for a new trial, with instructions to the lower court that a board of surveyors be appointed to make a survey of the properties, prior to final disposition of the matter. No appearance for appellant. pellee. 329 Daniel Draper for ap- 330 LIBERIAN LAW REPORTS MR. JUSTICE HORACE delivered the opinion of the Court. When this case first was reached on the docket, although there was no indication of representation, it was brought to our attention that a submission had been filed by counsellor Daniel Draper on behalf of the appellee informing the Court that appellant had withdrawn his case in the lower court. Because of the absence of appellant the case was reassigned and the Marshall instructed to get in touch with appellant. After several unsuccessful attempts by the Marshal to contact appellant, as reported to us, upon the urging of counsel for appellee the case was again assigned. Ordinarily in the absence of the appellant we would have simply passed on the submission which alleged that appellant had withdrawn, in the trial court, his appeal to this Court, but inasmuch as the submission stated that all the steps in the appeal had been taken and, therefore, the trial court had lost jurisdiction, we required counsel for appellee to present his side of the case. Counsel then submitted his ‘brief and argued his side of the case. According to the record before us, appellee instituted an action of ejectment against appellant on April 20, 1970, in the Circuit Court for the Tenth Judicial Circuit, Lof a County, complaining that appellant was wrongfully in possession of a portion of his land and claiming damages for the palm nuts which the appellant had seized from some of the people on his land. An answer was filed to the complaint. Aside from some frivolous demurrers raised therein, it averred that appellant owned the land in question by virtue of a deed he held which he did not make profert of, but giving notice that it would be produced at the trial. Pleadings progressed to the subrejoinder, but in passing on the issues of law the court correctly ignored all pleadings beyond the reply and LIBERIAN LAW REPORTS 331 ruled the case to trial on the factual issues stated in the complaint, answer, and reply. Before the court could pass on the issues of law appellant filed a motion to dismiss, based on the factual issues and his demurrers thereto, which was resisted and denied by the court. The case came up for trial at the November 1970 Term of the Circuit Court for the Tenth Judicial Circuit, Lof a County. The main facts brought out at the trial can be summarized. Appellee has a Public Land Sale Deed for 91.90 acres of land in the Zorzor District of Lofa County, dated June 7, 1961, probated and registered on August 2, 1961; appellant actually seized some palm nuts from appellee’s people although the quantity did not tally with the amount alleged in the complaint; appellant has a Public Land Sale Deed for two hundred acres of land in the same area, but although his deed was executed in 1958, it was not probated and registered until 1970. It is important to note that the appellee’s deed shows that his boundary commences at the northwest point of property owned by appellant. It is, therefore, clear that the parties to the action are claiming title to the land on the basis of deeds and have contiguous boundaries. Other facts came out during trial, but we do not think them pertinent to the determination of the main issue involved, that is, ownership of the disputed property. Counsel for appellee in argument before us stressed the point that appellant’s deed, having been executed in 1958 and probated and registered in 197o, was a voidable instrument because it had been probated and registered beyond the four-month period allowed by statute. This is elementary, but we think the first point to be settled is whether or not the area in dispute is contained in the two deeds or any one of them. Since the property was obtained from the same source, the Republic of Liberia, it follows that the instrument that is legally valid would 332 LIBERIAN LAW REPORTS take preference over one that is patently invalid and therefore voidable. After reading the record in the case and hearing argument of appellee’s counsel, we feel that the question of the ownership of the land in dispute has not been properly determined. A better course would have been to set up a board of surveyors to determine in whose plot or parcel of land the disputed area falls, since both parties have deeds for land in the area, even though one deed is voidable, and the record shows that the parties have contiguous boundaries. It is true that the record shows that appellee made an effort to have the property surveyed in order to determine the boundaries. However, appellant not only did not cooperate but was intransigent in the whole matter. The appellant’s attitude was definitely wrong, but the fact still remains that ownership of the property has not been definitely established by the one means that could do so, a survey by qualified surveyors. We cannot ignore the possibility that the disputed property may not be the appellee’s or the appellant’s. As stated before, we agree that a deed probated and registered twelve years after its execution is voidable, but it would only be void as against a properly probated and registered deed for the same property. Until it is determined what property both or either of the two deeds cover, a court cannot determine whether a voidable deed is void. This Court has held in a long line of opinions that one should recover land on the strength of his own title and not the weakness of his adversary’s. Bingham v. Oliver, LLR 47 (187o) ; Savage v. Dennis, [1871] LRSC 1; 1 LLR 51 (1871) ; Couwenhoven v. Beck, [1920] LRSC 4; 2 LLR 364 (192o) ; Gibson v. Jones, [1929] LRSC 3; 3 LLR 78 (1929) ; Salifu V. Lassannah, [1936] LRSC 13; 5 LLR 152 (1936) ; Cooper V. Cooper-Scott, [1954] LRSC 14; 12 LLR 15 (1954) Duncan v. Perry, 13 LLR 5io (196o). Text writers maintain the same view. 333 “A well-established principle which has acquired the force of a maxim is to the effect that the plaintiff in ejectment can recover only on the strength of his own title, and not on the weakness of his adversary’s. This rule is equally applicable in actions of trespass to try title. The defendant is not required to show title in himself, and he may lawfully say to the plaintiff, ‘Until you show some title, you have no right to disturb me.’ The plaintiff must recover on the strength of his own title as being good either against all the world or as against the defendant by estoppel ; and if that title fails, it is immaterial what wrong the defendant may have committed. It has been said that this rule must be limited and explained by the nature of each case as it arises, and that the rule is applicable where title is asserted against title (emphasis ours), but has no application where the defendant makes no claim of title.” i8 AM. JUR., Ejectment,� 20. After considering all facts and surrounding circumstances, it is our holding that the judgment of the trial court be reversed and the case be remanded for a new trial with instructions that the trial court will set up a board of surveyors to be appointed in keeping with law in order to determine whose deed covers the disputed area and to proceed from that point to dispose of the case. The Clerk of this Court is hereby ordered to send a mandate to the court below to the effect of this mandate. Costs to abide final determination. It is so ordered. Reversed and remanded. LIBERIAN LAW REPORTS