ETTA WRIGHT, E. W. MORGAN, and MADLINE MORGAN, Appellants, v. ARTHUR SHERMAN, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 17, 18, 1952. Decided June 6, 1952. Where facts establishing title of a holder of an interest in real property are brought before a court of equity, a decree may be issued to remove cloud from title and to quiet the possession of the property. Appellant filed a bill in equity petitioning the court below to issue a decree removing a cloud upon his title to, and quieting his possession of a parcel of land. After trial, the decree was issued. On appeal to this Court, judgment affirmed with amendment. Samuel C. M. Watkins for appellant. Cooper for appellee. Momolu S. MR. JUSTICE REEVES delivered the opinion of the Court. This action was instituted by Arthur Sherman, plaintiff below, by filing a petition alleging that in 1947 he purchased a ten-acre block of land in the settlement of Oldest Congo Town, in the County of Montserrado, Republic of Liberia, from one Susanna James ; said parcel of land bearing number 36, and bounded and described as follows : “Commencing at the North East angle of lot number thirty-seven (37) thence running South +5 degrees East 6 chains ; thence running South 45 degrees West 17% chains to the place of commencement and containing ten acres (1o) of land and no more.” which parcel of land was originally owned by one Susanna 206 LIBERIAN LAW REPORTS James and her sister, Sarah Carney, alias Sarah Morgan, who, in October, 1925, sold her share to her sister Susanna James, plaintiff below; and, notwithstanding that said plaintiff made improvements by building thereon, B. W. Morgan and Madline Morgan, two of the defendants, heirs of Sarah Morgan, in February, 1949, sold to Etta Wright, the other defendant, a certain lot or parcel of land with the buildings thereon and all the appurtenances to the same belonging, situated in the settlement of Oldest Congo Town, County of Montserrado, Republic of Liberia, and bounded and described as follows: “Commencing at the North East Corner of Anthony Benson adjoining Western Block and running parallel with it South forty-five degrees West twenty (2o) chains, thence North forty-five degrees West five chains parallel with the Old Motor Road to the place of beginning, and containing ten ( io) acres of land and no more.” Plaintiff further complained that, notwithstanding and with full knowledge of the foregoing facts, B. W. Morgan and Madline Morgan, heirs of the said Sarah Carney, alias Sarah Morgan, in the month of February, 1949, without the knowledge of plaintiff, executed a deed in fee simple for the identical parcel of land in favor of Etta Wright, one of the defendants herein, thereby creating a cloud over the title of the plaintiff to said parcel of land, although they knew that the plaintiff was, as now, in possession of said parcel of land, as will more fully appear from copy of the deed thus executed by said defendants in favor of co-defendant Wright annexed as “C” to form a part of the complaint. Wherefore plaintiff prayed a decree removing a cloud upon the title so created and thereby quieting the possession of said land so as to save him from hereafter being disturbed, or harassed by suits respecting his title thereto. Defendants below filed an answer alleging that the deed filed by plaintiff of his grantor Susanna E. James from LIBERIAN LAW REPORTS 207 Sarah Carney, dated October, 1925, was not probated and registered until January 28, 1947, a lapse of about twentytwo years ; and that Susanna James, plaintiff-grantor, and Sarah Carney, her sister, never jointly owned the property; but that Sarah Carney was the sole owner of a block of land containing fifteen acres for which she executed a will to her heirs on December 22, 1924. And further that the purported deed under which plaintiff claimed was not signed in the presence of any witness ; and that a careful examination of the boundaries respectively set forth in plaintiff’s deed and in defendant Etta Wright’s deed show that said deeds do not refer to the identical parcel of land. Plaintiff’s reply alleged that, as the defendants were privies of Sarah Carney, alias Morgan, they were estopped from questioning the authenticity of said deed ; that the purported will mentioned in said answer was fraudulently executed ; that a surviving witness, John M. Earley, denied having any knowledge of any execution of said will in his presence or by him ; and, further, that, although plaintiff alleges that said deed was duly executed by the late Susanna James and witnessed by J. M. Earley, Sr., J. C. N. Howard and J. C. Blunt, the clerk in making a copy, inadvertently omitted said witnesses, whose names plaintiff respectfully prays the court to have indited ; for, being in equity, it would in no manner adversely affect the rights of the parties. The pleadings continued as far as the rejoinder. On January 23, 1951, the case was called. The parties Were represented by counsel. Arguments were heard. The court then made the following ruling on the issues of law: “This case involves questions of fact; and the court will enter upon the trial thereof and hear evidence on the following points : “Did Susanna James and Sarah Carney own a ten-acre block jointly? “Did Sarah Carney part with her interest in and 208 LIBERIAN LAW REPORTS to said ten-acre block of land to Susanna James? “When did Sarah Carney die? “Did she make and execute a last will and testament?” No exceptions being taken, said matter was assigned for February 1, 1951. On said day, the court having opened in equity, the case was called, parties present, and the trial commenced. Witnesses for plaintiff were called, qualified and deposed. On the following day plaintiff rested oral testimony and offered documents marked by the court Exhibits “A” and “B.” Defendants objected to the admissibility of plaintiff’s Exhibit “B” for the following reasons : (C I. Said document, purportedly a deed issued by Sarah Carney on October 19, 1924, was never probated and registered as the law provides until twenty-two years thereafter. Section 1302 of the Revised Statutes of Liberia provides that all instruments relating to real estate must be probated and registered within four months. “2. Said purported deed on its face does not show nor convey to Susanna James five acres of land, but, instead, ten acres of land which the said Carney is alleged to have held in fee simple. “3. Said purported deed is not sufficiently identified by any of the witnesses who have testified thus far. Nor have any of the subscribing witnesses, whose names appear thereon, been produced to testify to the fact that it was Sarah Carney who had affixed thereon her “X,” since indeed Sarah Carney could not write, nor could she read.” Said objections were argued, and the court ruled as follows: “With respect to Count `I’ of defendants’ resistance, the law bearing on this point is that, where a deed or other instrument conveying real property is not registered and probated within statutory time, it is only LIBERIAN LAW REPORTS 209 voidable as against any person having a subsequent conveyance in his favor that has been registered and probated within statutory time ; and, inasmuch as the defendants in this case have shown no subsequent conveyance of the same property that has been duly registered and probated within a time prescribed by law, said objection is not well founded, and is therefore overruled. “With respect to Count 4 2 1 of the objections, the plaintiff’s pleadings made it clear that Sarah Carney, in issuing the deed to Susanna James, made it out for ten acres instead of five acres. This fact was never controverted by defendants ; and this court does not see the merits of said contention. Count ‘2’ of defendants’ objections is therefore overruled. “With respect to Count ‘3’ of � the objections, this court is of the opinion that said document has been duly and sufficiently identified by the witnesses who testified on this point. Moreover the deed from Sarah Carney to Susanna James is more than thirty years old. The objection is therefore overruled, and plaintiff’s Exhibits ‘A’ and ‘B’ are admitted into evidence.” The following day the trial continued when the witnesses for the defendants testified. The parties having all rested, the judge of the lower court heard the arguments and reserved his ruling. On March 19, 1951, the court again met with parties present and issued the following decree : “The history of this case, as far as we have been able to gather from the pleadings, may be epitomized as follows. In 1947 Arthur Sherman purchased a piece of property from Susanna James of Oldest Congo Town, and thereafter commenced operations thereon. Two years later, in 1949, W. B. Morgan and Madline Morgan, heirs of Sarah Morgan Carney sold the same property to defendant Wright, thereby casting a cloud on the title of the plaintiff, to remove which he insti- 210 LIBERIAN LAW REPORTS tuted this action. Contesting the right of the plaintiff to recover, the defendant averred that Sarah Carney and Susanna James never jointly owned the aforesaid piece of property. It would appear that plaintiff bought this piece of property from Susanna James who he alleges once held it in joint tenancy with Sarah Carney, the latter having parted with her share and interest in favor of Susanna James as is evidenced by a deed from Carney to James dated October 19, 1925. “With respect to the facts in controversy we requested the parties to produce evidence on the following points : Did Susanna James and Sarah Carney ever jointly own said piece of realty; and, if so, did Carney part with her interest and title in favor of James? When did Carney die ; and did she make a will? Accordingly witnesses were produced, qualified and deposed ; and from this evidence, these facts were established : (a) Carney and James did jointly own said property (see testimony of Benson and Nelson, the latter being a witness for defendants) ; (b) Carney did part with her interest to James as evidenced by deed from Carney to James dated October 19, 1925, probated, registered and admitted into evidence; (c) Carney predeceased James. This was the evidence for the plaintiff. “Coming now to the evidence for the defendants, we have the following: Sarah Carney made a will and demised the property to the grantors of the defendant, Etta Wright; and Carney and James did jointly own said property. That fact of the joint tenancy between Carney and James of the ten-acre block of land, the subject of this action, as also that Carney predeceased James, and that Carney, in her lifetime, did sell her share in said property to James, and James did not transfer said property to plaintiff, leaves this court LIBERIAN LAW REPORTS 211 without a doubt as to the legal and equitable right of the plaintiff in and to said property. “It having been established to the satisfaction of this court that Carney predeceased James, it is our opinion that, even granting that Carney did execute a last will, she could not, under the doctrine of survivorship, part with such property. We conclude that the grantors of Wright had no legal right and title to said piece of realty and therefore could not pass title therein to anyone. In view of the foregoing we have no alternative but to decree that : (a) Arthur Sherman has valid and legal right and title to said property; and (b) B. W. Morgan and Madline Morgan shall refund to Etta Wright the amount paid them for said land. Costs against defendants.” It is apparent from the records that the conflict from which this action arose was initiated by J. Prince Nelson, a son of the late Sarah Carney. He partly sold the tenacre block of land in question to appellee Sherman and received a portion of the price agreed upon ; but, thereafter, appellee Sherman learning that the said Nelson was not the owner of the block of land, but that it was owned by Susanna James (for, though Sarah Carney formally owned a part of said land, she had sold her interest therein to Susanna James), appellee Sherman approached Susanna James and purchased said block of land. This information came out as follows in the testimony of J. C. N. Howard : “Q. Say whether or not, during the lives of the said Susanna James and Sarah Carney, they ever owned jointly any piece of realty in the settlement of Oldest Congo Town ; what disposition they made of said property? “A. I did not know that Mrs. Sarah Carney and Susanna James owned a ten-acre block of land 212 LIBERIAN LAW REPORTS jointly until a few years ago, when Mr. Arthur Sherman met me in Monrovia one evening and asked me to go up with him to Oldest Congo Town to witness some land transaction. We went to Commissioner Earley. Commissioner Earley, one S. M. Blunt, who is now deceased, and I went to Mrs. Susanna James’s place, where Commissioner Earley asked Mrs. Susanna James to bring out her papers in connection with the land they had talked about a month ago. Mrs. Susanna James then brought out her papers and asked me to check them over. It was then I saw a deed issued and signed by Mrs. Sarah Carney transferring her portion of five acres of land to Mrs. Susanna James. I have forgotten the amount now. But I remember that Mrs. Susanna James was formerly living on the eastern half or portion of said land but did not know that Mrs. Sarah Carney owned a portion of that land up to that time because Mrs. Carney was living toward the Baptist Church and had a house there ; there where she died. And this land is about a half mile from Mrs. Sarah Carney’s house. We took the papers. Mrs. Susanna James agreed to sell the ten acres, and five acres of her father’s land, but she said that the price was too low. I said to her : ‘You are old and you are not able to go to court from time to time following Jack Nelson; since Nelson sold a portion of your land to Mr. Arthur Sherman, and Mr. Sherman having heard that Mr. Nelson had no genuine title to this land, agreed to pay you for the same land, although he had already bought it from Nelson. I would suggest that you sell the land.’ She agreed and asked me to write the transfer deed. She signed her ‘X’ cross; Commissioner Earley signed as witness; Mr. Sherman then handed me the money; and I LIBERIAN LAW REPORTS 213 gave the money to her and she delivered the deeds in our presence to Mr. Sherman. Then Mr. Sherman asked Mr. Earley, Mr. Sam Blunt and myself to go with him to Mr. Jack Nelson. When we went we met Jack Nelson on the road. Mr. Sherman stopped the pick-up and said to Mr. Jack Nelson : ‘What kind of trick you played on me? You know the land wasn’t yours and you sold it to me. But, if you don’t give my money back, I will put you in court.’ Mr. Nelson said : `Who told you that the land is not mine?’ Then Mr. Sherman took out the deed signed by his mother, transferring the land to Mrs. Susanna James, and showed it to him. Then Mr. Sherman said that it was a dirty trick. They had some hard words and we left. That is what I know about the matter.” A similar question was put to John M. Earley as follows : “Q. Please say if you know whether, during the lifetime of Susanna James and Sarah Carney, they owned jointly any piece of realty, and what disposition they madc of said property? “A. What I do know is that unexpectedly one day Mr. J. Prince Nelson went with Etta Wright and arrived at my place, Mr. Nelson asked me to go with him because he wanted to sell a piece of land to Mrs. Etta Wright. I went with him. We went around the place and the lady returned to Monrovia. Unexpectedly I saw Mr. Arthur Sherman with Mr. Howard arrive at my place asking me to please go with them to the late Susanna James’s place and I did so. When we got there Mrs. Susanna James brought her original deed calling for ten acres of land, and with a transfer deed from Mrs. Sarah Carney. That transfer deed called for five acres of land trans- 214 LIBERIAN LAW REPORTS ferred from Sarah Carney to Susanna James. Susanna James said that she wanted to sell that five acres of land to Mr. Arthur Sherman, because Mr. Nelson is threatening to sell this piece of land over her head, and her being an old lady she was not able to contend with Mr. Nelson. Mr. Sherman agreed to buy the ten acres of land and he paid the amount which she charged him. The said transfer deed was issued and signed by Mrs. Susanna James, and Mr. Howard and I witnessed the deed. The original with the transfer deed were turned over to Mr. Sherman. I wrote Mrs. Etta Wright and told her the whole contents of this piece of land. I told her in my letter not to pay a cent to Mr. Nelson because I found out after an investigation that this land was not owned by Mr. Nelson’s mother, Mrs. Sarah Carney. She had sold her share of the land over to Mrs. Susanna James before her death. I sent the letter by Mr. Sherman to Mrs. Etta Wright. She took no cognizance of the letter. A few weeks thereafter I received a writ of subpoena to appear as a witness on a will devising a ten-acre block to her grandson, Benjamin Morgan, and to Madline Morgan. Then I became upset. I appeared before the court and got on the stand. The court then produced this will to me with my name signed to the will as a witness. I gave my statement to the court upon oath and my sound mind to the effect that I did not sign my name to that particular will in question. My name was forged to this will.” Evidently when Mr. Nelson realized that he had failed in disposing of said property to appellee Sherman, he became chagrined and decided to undertake a reprisal ; and thus there appeared on the scene a will executed by Sarah S. Morgan which contained the following clause: LIBERIAN LAW REPORTS ” 215 2. I Will and bequeath to my daughter Sarah and my son Jesse Morgan one block of land containing ( Is) fifteen acres of land with a building thereon. Which is known as my dwelling house during my natural life, situated and located in the settlement of Oldest Congo Town, County of Montserrado and Republic of Liberia.” B. W. Morgan, one of the defandants, testified as follows about this will : “Q. When did you know that the land which you had undertaken to sell was your property? “A. One day round About 194.5-46, I was passing by Mr. Earley’s house. He called me in and said to me : ‘I have a deed here which Mrs. Susanna James and your uncle Jack are contending over, but I found out that this deed was pledged to Mrs. Susanna James by your grandmother, Mrs. Sarah Carney, for the amount of seventeen dollars. You and your sister not knowing anything about it, Jack, who knew, wanted to get it from her. This place was given to your father by your grandmother. It is the spot on which you were born, but Jack wants to sell it from you and your sister. But I will call a family council, asking one or two old persons to be in the midst. I will send for you and your sister to be there, also, because this deed was given to me by Mrs. Susanna James to turn over to Jack, and he gave to Mr. Earley the seventeen dollars that this deed is pledged for. I will not do it because Jack wants to rob you all out of your place. In this council I. will turn this deed over to you and your sister, and you pay over to Susanna James the seventeen dollars.’ That is how I come to know that land to be ours at first. A few months later, Uncle Jack one day sent for us and told us that Mr. Bull found out Grandmother’s will in the Monthly 216 LIBERIAN LAW REPORTS and Probate Court one day while searching up some papers. We then came to Monrovia to Mr. Bull and he said the same words to us. We had this will registered and probated and gave Mrs. Wright a deed for ten acres of land. This is all I know. “Q. Who was living on this land at the time you disposed of it? “A. No one. “Q. No building was on the land? “A. Mr. Sherman had an unfinished building on it. “Q. And did Mrs. Wright see and know of the unfinished building being that of Mr. Sherman at the time? “A. Maybe. I don’t know, because Mrs. Wright does not live out there. “Q. Were you present at the investigation conducted by Commissioner Earley at which M. B. Smarte, Lewis Smarte and Susanna James testified concerning this identical ten-acre piece of land? “A. No.” The mention made in the will of the fifteen acres of land and the house that was built thereon was referred to as follows in the testimony of witness Benson: “Q. Do you not know that Mrs. Sarah Carney owned a fifteen-acre block of land in Oldest Congo Town whereon she had her dwelling house? “A. The place she had her dwelling house is not the same property in question now. She did not have fifteen acres of land. “Q. Do you know Mrs. Sarah Carney owned a separate piece of land in Oldest Congo Town whereon she lived during her natural life? “A. The ten acres of land whereon she lived and died LIBERIAN LAW REPORTS 217 was owned by Mrs. Sarah Carney and Lulu Smarte.” Obviously defendants were correct in Count “5” of the answer which reads as follows : “And also because defendants say that from a very careful examination of the boundaries shown in plaintiff’s deed under which he claims and that of defendant, Etta Wright, grantee from B. W. Morgan and Madline Morgan, grantors, same is not the identical parcel of land, for which the plaintiff has filed this complaint praying this court to enter a decree removing the cloud upon the title and to quiet the possession.” Defendants, in this count of their answer, were consistent and honest. The boundaries of said block of land could not be that of appellee Sherman which Mrs. Susanna James had sold him ; said boundaries had to differ. Aside from the other facts brought out in the evidence, this admission of defendants, the description of the land given in the will, and the statements given by witnesses Benson and Howard, justified the trial court in granting a decree quieting appellee’s title. Without further belaboring the question, this Court therefore affirms the decree rendered below, with an amendment to section (b) thereof, to wit : that B. W. Morgan and Madline Morgan grant unto Etta Wright a transfer deed for the block of land they claimed under the will of their late mother, and, in the event said land has been sold, that they refund to said Etta Wright the amount paid them for said land ; costs against defendants. And it is so ordered. Affirmed.