ELIZABETH L. McCAULEY, Appellant, v. JAMES N. DOE, Sole Executor of the Estate of C. B. WILLIAMS, deceased, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 15, 1973. Decided November 23, 1973. 1. When the authority of a party to sue in a representative capacity has been challenged, he is required to submit proof of the authority claimed. 2. In the present case, the claim of being the sole executor of an estate should have been supported by the production of letters testamentary. 3. Mere possession of a deed does not necessarily establish title. Such possession must be factually alleged in a pleading to afford the adverse party an opportunity to contest the claims. 4. Any behavior of the jury, during and immediately after service, which can be regarded as prejudicial or reflecting prejudice against the losing party is a proper ground for a new trial. Appellee began an action in ejectment as executor of an estate, contending appellant was wrongfully occupying land owned by the estate. The defendant challenged the authority of the plaintiff to sue as executor of the estate. She also claimed that she had obtained title to the land but offered no proof with her answer, although she submitted a deed at the trial which was denied admission into evidence by the trial judge. In the plaintiff’s reply no attempt was made to respond to the charge that he had failed to furnish proof of being the sole executor of the estate he claimed he represented. A jury verdict was returned for the plaintiff. It would appear that after the verdict was announced some of the members of the jury joined the jurors serving that term in a sort of celebration, for they began to dance and make merry in court because the plaintiff had won. An appeal was taken from the judgment by the defendant. The Supreme Court reversed the judgment of the lower court and in order for the issues on both sides to be properly presented remanded the case for retrial. 310 LIBERIAN LAW REPORTS 311 Alfred J. Raynes and Joseph F. Dennis for appellant. D. W. B. Morris and Edward N. Wollor for the appellee. MR. CHIEF JUSTICE PIERRE delivered the opinion of the court. According to the record certified to us from the trial court, the following history of this case can be obtained. 1. On September 3o, 197o, the plaintiff, who is the appellee here, filed an action of ejectment in the Civil Law Court in Monrovia complaining that the defendant, appellant in these proceedings, had wrongfully and unlawfully entered upon his sixty-acre tract of land in the settlement of Barnesville in Montserrado County, and that she was withholding the aforesaid property from his use and possession. He annexed to his complaint a bountyland deed executed in consideration of services rendered the Republic by George W. Herbert and S. N. Caddell, which was executed by President William D. Coleman, issued in 1897. The deed also shows that consideration for the grant was military service rendered the Republic by the aforesaid Herbert and Caddell, which was certified by proper authority. Herbert and Caddell transferred their rights in the certificate to Bill Williams, and he was thereupon named in the deed as grantee and owner of the land. We have not been able to find in the record any other document which would seem to be even remotely related to the complaint, except the affidavit. 2. The defendant appeared and filed an answer in which she denied the sufficiency of the complaint against her. In counts one and two of the said answer, she alleged the writ upon which she had been brought under the jurisdiction of the court was defective, in that no division of the Civil Law Court in which she should appear had been mentioned in the writ, and that the said writ was further defective for having ordered her to formally appear four days after summons, instead of the ten days 312 LIBERIAN LAW REPORTS required by the Civil Procedure Law. Inspection of the defendant’s appearance and answer shows, however, that she did appear and filed an answer within the ten days allowed. Therefore, these two alleged defects in the writ would seem to have been cured by her own act. Count three of the answer asserts that the plaintiff has not proferted title, whereby he could lay claim to the property in Bill Williams’ deed. She also contended in count four of her answer that the plaintiff has represented himself as being “sole executor” of the estate of the late Bill Williams, and had sued in this capacity, but that he had failed to profert any evidence of the fact that he is the executor. She says, further, that he did not annex to his complaint a will appointing him such executor, nor had he exhibited any letters testamentary from the Probate Court to verify his claim to being the executor of the estate. In count five of her answer she denied that she is occupying any land owned by the plaintiff and says that the land she occupied is her property acquired by legitimate purchase. 3. Because we think it is necessary to the just determination of this case, and in view of the issues raised in the answer, especially in counts three and four thereof, we have decided to quote the text of the plaintiff’s reply. Plaintiff requests that counts 1, 2, 3 and 4 of the answer be striken from the pleadings because said counts are pled as demurrers which do not constitute defendant’s substantive defense against plaintiff’s claim, as laid in the complaint. Plaintiff alleges further that said counts and their averments are not statutory grounds for the abatement of a civil action. “2. Plaintiff submits further to counts i and 2 that, having acquired jurisdiction over defendant’s person, the court cannot dismiss plaintiff’s application for relief on the grounds of the alleged unmeritorious defects as stated by defendant in said counts i and 2 of her answer. LIBERIAN LAW REPORTS 313 “3. And also because plaintiff denies that defendant is the owner of the parcel of land for which this action is instituted, in that, defendant is not in lawful possession of said land, and failed to profert the muniment of her title showing from whom she purchased of the said land as contended in count of her answer. Wherefore, plaintiff prays that said count be overruled. “4. Plaintiff further submits as to counts 3 and 4 that it is not required of executors to exhibit evidence of their representative capacity when entering an action. It is enough to only allege that they are executors of an estate. It is therefore incumbent on the defendant to allege and prove the contrary.” As can be seen, no attempt was made to traverse the important issues raised in counts three and four of the defendant’s answer; but we shall say more about that later. 4. Count three of the reply alleges that the defendant failed to profert her deed upon which she based her claim to ownership of the property. Plaintiff contended in count four of his reply that it was enough for him to have alleged only that he was executor of the estate of the late Bill Williams, and he denied that it was necessary for him to have exhibited evidence of this fact. These are the issues presented in the pleadings for our consideration. Trial of the case commenced on September 25, 1971, Judge John A. Dennis presiding, and ended in a verdict for the plaintiff. Judgment was rendered for plaintiff, and the defendant announced and completed his appeal to the Supreme Court. In Anderson v. McGill, [1868] LRSC 2; 1 LLR 46, 47 (1868), this Court said that on the claim of an administrator that he was clothed with authority to sue for the estate, the burden of proof rested upon such administrator to establish the truthfulness of his claim to legal representation of the estate. “The evidence necessary to the proof of the authority of an administrator is his letters testamentary.” 314 LIBERIAN LAW REPORTS It would seem that a sole executor, such as plaintiff claims to be, should be able to more easily establish the fact of his authorized representation, since unlike an administrator his appointment must be by will. This being so, what objection should an executor have to producing evidence of his appointment to serve an estate? Especially when the issue was raised in the pleadings of his adversary, as in this case. The former Civil Procedure Law required that “Every action shall be prosecuted in the name of the real party in interest, but any of the following persons shall be entitled to sue in his own name without joining with him the party for whose benefit the action is brought: (a) an executor; (b) an administrator; (c) a guardian; (d) a trustee; (e) a party with whom or in whose name a contract has been made for the benefit of another; or (f) a person so authorized by a statute of the Republic of Liberia.” 1956 Code 6:91. We interpret this statute to mean that in any one of these enumerated cases, the party suing for another should be able to produce proof of his authority to serve in the capacity for which he claims to have been appointed. Otherwise, as in the present case, estates might be unnecessarily exposed to the schemes of land-hungry imposters. In passing on the issues of law in this case the judge took the view that it was not necessary for the executor to submit proof of having been appointed in the capacity claimed and he relied upon the Civil Procedure Law. “Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to oraise an issue as to the legal existence of any party or the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a repre- LIBERIAN LAW REPORTS 315 sentative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” Rev. Code i :9.5 (1). Would ejectment be a special matter contemplated under this statute? We do not think so and, therefore, hold this statute to be inapplicable to the judge’s reasoning. We think that the judge’s interpretation of this statute was in error. When acting upon it, he overruled the defendant’s answer which called for proof of the plaintiff’s claim to having been appointed to serve as executor of Bill Williams’ estate. The above section does not allow or permit an executor to refuse to show evidence of his appointment, when he sets himself up as the representative of an estate in litigation and his authority to represent the estate is questioned in the pleadings of his adversary. Moreover, the Decedents Estates Law provides that “Letters granted to fiduciaries by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them.” Rev. Code 18:107.3. It is a fundamental principle of our procedure and practice, that he who alleges the existence of a fact is bound to prove it. In the circumstances, why wouldn’t the executor want to produce evidence of having been appointed the executor of the estate of Bill Williams? It is in the best interest of legatees and creditors that evidence of the appointment of executors and administrators be produced in court to thereby protect estates from fraud and from interference by unauthorized persons. The record does not show when Bill Williams died, but the record does show that he acquired this property in 1897, seventy-six years ago. According to the record, no subsequent deed being indicated, this property has not changed hands since the grantee named in the deed ac- 316 LIBERIAN LAW REPORTS quired it in 1897. We assume, therefore, that Bill Williams died still possessed of it. This would seem to place this title among the old real-estate titles in the Country. To intelligently and fairly determine the issues in this case, it would seem to be necessary that answers to certain questions be known: ( I) When did Bill Williams die, for a comparatively young man like plaintiff to be his executor? (z) When were letters testamentary issued to the executor of his estate? (3) Where is Bill Williams’ will? It is our opinion that there must be a will for a “sole executor” to function in such capacity. And if there is a will and the executor is so functioning, then there must also be letters testamentary. Where are these documents, and why would the plaintiff refuse to exhibit them when his authority to act upon them was challenged by the defendant? During the trial, according to the record for September 25, 1971, the plaintiff and two other witnesses testified to the property in question being owned by the late C. B. Williams, alleged son of the late Bill Williams. Nowhere in the record is it shown whether C. B. Williams ever made a will, or how his estate was administered after his death. If the property in issue descended to him and he has since died, it would seem more reasonable that the , plaintiff would be executor of his estate, rather than that of Bill Williams, his father. But there is nothing in the record to clarify this important point. As the record stands, all that in any way connects James Doe, the plaintiff, with the property involved, is his own assertion of being Bill Williams’ “sole executor.” There isn’t the least scrap of any evidence to show that he is indeed executor of the Williams’ estate, which would have clothed him with authority to sue. Nor is there anything to connect him with C. B. Williams, who we assume acquired the property after his father’s death. There are no papers made profert from the probate court LIBERIAN LAW REPORTS 317 in either of the two estates, Bill ‘Williams’ or C. B. Williams’. An entirely different situation would have been presented had the plaintiff sued as the representative of the estate of C. B. ‘Williams instead of the estate of Bill Williams. But as I have said, the record on this point is not clear, so we have the plaintiff representing himself as sole executor” of Bill Williams’ estate, though he testified that C. B. Williams was owner of the property in dispute and that the said C. B. Williams was his uncle. It is difficult to find a more confused state of facts in any land dispute. Now let us consider the claim of the defendant. As we have seen in count three of the plaintiff’s reply, no deed was made profert with her answer to support her claim to ownership of the property she occupies. She testified at the trial that at the time the plaintiff filed his case against her, her deed was at the Executive Mansion awaiting the President’s signature. No one disputed her, so we assume that she told the truth. According to her testimony in the court below she acquired title to two acres of public land in the Settlement of Barnesville in 1970. She produced a public land sale deed at the trial to support her testimony, although she had not given notice of the existence of any such deed in her answer. The deed was offered and was marked by the court, but was denied admission into evidence. However, the following facts were ascertained from the testimony of witnesses at the trial: (I) that defendant’s two acres of land were carved out of a block known as No. 37 on the map of the area, whereas the plaintiff’s deed involves block No. (2) that the Land Commissioner and the Commissioner of the Township of Barnesville where defendant’s two acres are situated, had designated and certified them as being unencumbered public land, and had thereupon ordered it surveyed for her to (( 318 LIBERIAN LAW REPORTS purchase. Consequently, that everything necessary for her to have done to acquire legitimate title to the property had been done. Therefore, she concluded that the property was hers and she had accordingly built her house upon it. Without going into any more of the many salient points which are shown to have been presented on both sides, we would like to observe that the mere possession of a deed executed in a party’s favor, does not necessarily establish such party’s claim in an ejectment suit. Notice of the existence of such deed must have been given in the party’s pleadings, so as to afford his adversary opportunity to contest such claim. The fundamental principle of pleading and practice, that of giving notice, is a very old maxim in our practice. In count five of the appellant’s brief, it is stated that after a verdict had been returned in the plaintiff’s favor, the jurors serving that term of the court, including some of those who had served on the panel, began to dance and make merry in court because the plaintiff had won. It is also stated in that count of the brief that the plaintiff himself joined in the merriment, and in his moment of � jubilation made the remark: “The woman (meaning the defendant) came from Biafra to our land in Liberia.” During appellant’s argument of this point, we inquired of counsel why this alleged fact had not been made a part of the record of the trial so that it could have been included in the bill of exceptions. We were told that there was so much confusion in court after the verdict that nothing could be entered on the record. This observation was not denied by the appellee. It is unfortunate that an incident of this kind should have happened in our courts, because it is grossly irregular and contrary to our concept of what the atmosphere should be in which a fair and impartial trial can be had. It is possible that nothing ulterior took place to influence the jury’s verdict. But it is also possible that the merri- LIBERIAN LAW REPORTS 319 ment on the part of the jury after a verdict was returned was an outward manifestation of some previous understanding or arrangement which might have influenced their verdict. That possibility also cannot be ruled out. In such circumstances the Court will always rule with the latter possibility in mind, and grant a new trial. When a similar thing happened during trial in Shaheen v. C.F.A.O., 13 LLR 278 (1958), this Court remanded the case for a new trial on that ground alone. When a jury has been impaneled to try the issue joined, their every act until discharged must remain under close scrutiny by the court, by the parties on both sides, and by the world at large. In McBurrough v. Republic, [1934] LRSC 3; 4 LLR 25 (1934), the Supreme Court reversed the judgment because the trial judge communicated privately with the jury in his chambers in the absence of the parties. The Court regarded this as improper behavior by the judge. We strongly condemn any behavior of a jury, during and immediately after service on a panel, which can be regarded as prejudicial, or reflecting prejudice against the losing party. Any such behavior when brought to the Court’s attention would be proper ground for a new trial. Because of the position we are taking in this case, we will make no further comment on the issues except to say that whether or not there was title in the defendant, the plaintiff’s authority should have been so well established in his complaint that no doubt was left as to the legitimacy of that authority. In ejectment suits plaintiffs recover on the strength of their titles or positions, without regard to whether or not the defendant has any defensible claim at all. It is, therefore, our opinion that in order for the issues on both sides to be properly presented, and thereby permit the court an opportunity to intelligently pass upon them, the judgment in this case is hereby reversed, with 320 LIBERIAN LAW REPORTS instructions that the parties be permitted to replead in the court below, if they elect to do so, and that a new trial be had thereafter. Costs are ruled against the appellee. It is so ordered. Reversed and remanded.