| Ala. | Apr 16, 1908
— The bill seems to have been primarily filed to specifically perform the award of an. arbitrator, selected by the complainant and the respondent D. K. Caldwell. While the chancery court has the jurisdiction and power to enforce an award of arbitrators appointed by the parties, it is without authority to carry out mere agreements to submit matters in controversy to arbitration. Pomeroy’s Spec. Performance of Contracts, § 291; 6 Pomeroy’s Eq. Jur. § 758; 2 Story’s Eq. Jur. § 1457. The prof shows that there was no aAvard, as the arbitrator declined to act, and merely made a calculation for the complainant, ba<-ed on his statement, and did not take into consideration the claim or statement-of D. K. Caldwell, and what purports to be an award
The second contention of the complainant is based upon a claim, under an oral agreement between A. H. Moody and the heirs, that after Moody bought the property, under the chancery sale, the heirs should have five years in which to redeem. This contention is not supported by the proof. But, if it be true that the transaction between Moody and D. K. Caldwell was but a redemption by the latter, under the disguise of a straight out purchase, and that it was for the benefit of all the heirs, upon contributing their pro rata towards the payment of the Moody mortgage, their right to redeem would not be cut off until a foreclosure of the mortgage, which could not take place until the law day, which would be the maturity of the debt, and which is not due for five years from the date of said mortgage. Moreover, they would have the statutory right to redeem within two years after foreclosure.
It would seem, from the agreement, signed by D. K. Caldwell, with the complainant, to arbitrate the difference, on April 3, 1906, and which Avas subsequent to the deal between said D. K. Caldwell and Moody, that there was a clear recognition by said D. K. CaldAvell that the complainant was not precluded from retaining his land upon payment of his pro rata of Avhat Avas due Moody. Conceding, therefore, that D. K. Caldwell was acting for and in behalf of the heirs, and that the deal with Moody was in the nature of a renewal or extension of existing incumbrances, we do not see how the complainant can obtain relief under the present bill. The bona fides of the Moody incumbrance for $16,000 are not questioned, and it is not due; and clearly the complainant cannot be benefited by now paying what is due
The decree of the chancery court, dismissing the bill of complaint, is affirmed.
Affirmed.