JOHN NAGBE, Appellant, v. SOLO T. NYEMA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 18, 19, 1966. Decided December 16, 1966. 1. A deed is not invalidated by a mistake in spelling the grantee’s name if there is no real question as to the identity of the person who was intended to be designated as grantee. When the trial court’s denial of a motion for continuance is shown to have been prejudicial and to have constituted an abuse of judicial discretion, the Supreme Court will reverse the judgment and remand the case for new trial. 2. On appeal from a judgment on a jury verdict in an ejectment action, the judgment was reversed and the case remanded for new trial. G. P. Conger Thompson Diggs for appellee. for appellant. Richard MR. JUSTICE WARDSWORTH delivered the opinion of the Court. An action of ejectment was instituted by plaintiffappellee in the above-entitled cause against John Nagbe, defendant-appellant, in the Circuit Court of the Sixth Judicial Circuit, Montserrado County, on the 21st day of July, 1962, and issue was joined between the above named parties on the 31st day of July, 1962. The law issues having been duly disposed of, jury trial of the said case was commenced on the 13th day of July, 1965, before His Honor Judge Roderick N. Lewis, presiding by assignment over the August 1965 term of said court. The case having been argued and submitted by counsel representing the parties, the trial judge delivered his charge and the jury retired to their room of deliberation. After consultation and due deliberation, the jury returned 601 602 LIBERIAN LAW REPORTS a verdict in favor of plaintiff-appellee, to which verdict the defendant-appellant placed on record his exceptions and filed a motion for new trial on the it th day of August, 1965, which motion was resisted by plaintiff-appellee. After argument pro et con the trial judge denied said motion, to which ruling defendant-appellant excepted. On the 23rd day of August, 1965, the trial judge delivered final judgment in said case affirming the verdict of the jury, awarding appellee the premises, the bone of contention. To this final judgment the appellant excepted and gave notice of appeal before the Honorable Supreme Court of Liberia, sitting in its March 1966 term. Accordingly, appellant performed the requisite jurisdictional legal steps and is now before this forum of dernier resort basing his contention on a six-count bill of exceptions. We deem Counts 1 and 2 of the said bill of exceptions as being worthy of consideration and we hereunder recite said counts word for word. That on the 21st day session, July 19, 1965, when plaintiff-appellee had rested evidence, he offered for admission into evidence a land sale deed purporting to be the deed under which plaintiff-appellee claimed title to the subject property. Defendant-appellant objected to the admission into evidence of the said deed on the following grounds : Cl (a) that said deed carried the name of Solo Tuyena on its face and consequently plaintiff-appellee cannot recover under the strength of such a deed which does not carry its name, Solo Nyema ; and “(b) That said deed was never certified at its issuance by the land commissioner, as mandatorily provided for by statute, which would go to show that the said land was unencumbered at the time said deed was presented to the President of Liberia for his signature and therefore, said deed not having been legally procured, is insufficient to vest title on plaintiff appellee. “2. And also because defendant-appellant applied – LIBERIAN LAW REPORTS 603 to court for a writ of subpoena for his witness, William H. Ketter, land commissioner for Montserrado County, and upon the returns of the sheriff showing that the said witness Ketter was without the bailiwick of the court, defendant-appellant filed a motion for continuance since said witness was to testify and corroborate defendant-appellant and his witnesses’ testimony that the land in question was unencumbered at the time defendant-appellant obtained permission from the said land commissioner to build a house thereon, and further explain to the court the absence of his signature on the purported deed, since it was established by defendant and his witnesses that he applied for a deed from the said land commissioner and he said that the commissioner refused him a deed based upon instructions from the President of Liberia. Plaintiff-appellee resisted said motion and Your Honor denied said motion to which defendant-appellant excepted.” In Count 1, appellant attacks the validity of the deed issued in favor of appellee because, as he alleges, there is a difference in the spelling of appellee’s surname in that the name apparent on the face of the deed is “Tuyena” whilst that affixed to his complaint is “Nyema,” and further because the said deed was not certified by the land commissioner for Montserrado County, as the law provides. This Court has held that: “An error committed by a party in the execution of a deed, where it does not appear to have been done with a fraudulent design, will not amount to fraud, nor will it vitiate the instrument.” Worrell v. McGill, [1873] LRSC 2; 1 L.L.R. 63 (1873). In buttressing this citation, eminent law writers have laid down the following principles: “If it can be ascertained from the deed who is intended, a deed is not vitiated by mistake in setting out the name of the grantee, as in the case of misspelling, 604 LIBERIAN LAW REPORTS or the case of a misdescription of a corporation or religious society or other organization.” i8 C.J. 1 75176 Deeds � 56. “Likewise where the grantee is known by different names or there are several persons of the same name, or where the grantee is described by surname only, the deed being sustained in the latter case even under the old rule to the contrary, if by intrinsic evidence the intended grantee could be ascertained. In short, while there is authority to the effect that an error in the grantee’s name cannot be obviated at law by extrinsic parol evidence, and that a deed to a truly fictitious person is void, it is recognized in a multitude of cases that if the court can find that a certain person was intended as grantee, it matters not what name is given him in the deed, especially if he directed the use of the assumed or wrong name or accepted the deed as delivered.” 8 R.C.L. 958-959 Deeds.� 32. In view of the above-cited law, Count i of appellant’s bill of exceptions is hereby not sustained. In Count 2 of said bill of exceptions, appellant complains that his motion for continuance, based on the facts recited supra, was erroneously denied by the trial judge. It should be remembered that the granting or denial of a motion for continuance of a cause rests within the discretion of the trial judge. But since the subpoena for the witness had been returned by the sheriff, evidencing that the reasons underlying the said motion were cogent, and based on absence of a material witness, it is our considered opinion that the trial judge erred in denying said motion. Therefore Count z of appellant’s bill of exceptions is hereby sustained. In passing, however, we have thought it proper to incorporate into this opinion the motion filed by defendantappellant in the lower court for continuance of the case because of the absence of the material witness. The body of said motion alleges: LIBERIAN LAW REPORTS 605 I. That a subpoena was issued by order of this court for a material witness in the person of William H. Ketter, the land commissioner for Montserrado County, and as the returns will show, the said William H. Ketter is without the bailiwick of this court and therefore is unable to attend upon the trial of this case. “z. That the said witness is being called upon to prove to this court that he gave permission for defendant to build his house on a spot at Slip-Way at the time said premises was unencumbered. Defendant submits that this evidence is vital to defendant to prove that plaintiff is not the owner of the said piece of land and that such property is govenrment land and that the said witness William H. Ketter, who is the land commissioner for Montserrado County, upon approach by the defendant, stated to the defendant that said land has been declared government property and that the President of Liberia has so indicated. “Wherefore, and in view of the foregoing, defendant prays this court for the continuance of the said case to the foot of the docket or as such time will be available to court since without said testimony of this witness, the defendant would not have received a fair and impartial trial in keeping with law, and that this court will grant unto defendant all other and further relief in the premises as the nature of the case demands.” In view of the fact that appellant’s motion to continue the case so as to enable him to secure the testimony of a material witness was imprudently denied, this Court hereby reverses the judgment in said case and remands the same to be retried upon its merits at the next ensuing term of the Circuit Court of the Sixth Judicial Circuit, Montserrado County. Costs to abide final determination. And it is hereby so ordered. Reversed and remanded.