| La. | Feb 15, 1849
The judgment of the court was pronoonced by
The transactions out of which the present suit has grown, began under relations of intimacy and good will, which were followed by mutual complaints and controversy. After an acrimonious litigation, the parties seem to have reflected for a time upon its injurious consequences to themselves and and their creditors, and to have made an agreement to submit tho matters in dispute to arbitrators, whom they clothed with the authority ofamicable compounders. The controversy involved a large estate called the “Buckhorn plantation,” of which Mrs. Cobb and Lowry, were the joint proprietors, and the settlement of mutual accounts and claims. Among other powers-vested in the arbitrators was that of deciding in what manner the plantation and slaves should in future be managed and controlled, and what disposition should be made of the crops, in whose name they should be shipped, and by whom applied until the claims against it should be liquidated. The then existing crop was placed under th® control of the arbitrators. The submission was signed by Mrs, Cobb, her husband, and Lowry., in July, 1846, and the arbitrators were required to render their award on or before the I Oth February, 1847. It being found that the award would not be prepared at the time stipulated, an agreement for extension, until the 15th Marcli, was signed on the 18th January, 1847, by Lowry, and by Cobb in his individual name, and as agent of his wife. The arbitrators rendered their final award on the 15th March, 1847. It was spread upon the minutes of the court at the ensuing October term, upon the ex parte motion of Lowry; and on the like ex parte motion it was made the judgment of the court.
On the 7th January, 1848, Mrs. Cobb and her husband instituted the present suit'. Her petition states the ownership of the plantation and slaves by herself and Lowry; that she had for many years the management of it, and of the crops, employing her husband as the overseer; that the defendant Parham, pretending to derive authority from the award of certain arbitrators, was about to deprive her of the control and supervision of the estate, and prevent her
The true question in the cause is1, the binding force of the1 award upon the’ plaintiff. If it be binding,- the judgment of the court dissolving the injunction' cannot be disturbed.
It is conceded by the ‘defendants that the award has not been duly homologated. It is also conceded that, no express authorization by Mrs. Cobb to her husband to extend the time for making the award has been proved. But they contend that a formal homologation is not necessary where the parties have themselves executed the award; and that the absence of an express authorization from the wife to extend the time, and the consequent defectiveness of the award, are cured by her voluntary execution of it.
We concur injopinion with the defendants’ counsel, that an award rendered by amieableYompounders could not be revised by the court for errors of judgment, and could only be attacked by reason of fraud or usurpation of power on (he part of the auditors (see Canty v. Beal, 17 La. 285. Davis v. Leeds, 7 La. 477" court="La." date_filed="1844-05-15" href="https://app.midpage.ai/document/succession-of-peytavin-7158823?utm_source=webapp" opinion_id="7158823">7 La. 477); and that, in the absence of objections of that nature, the 'execution of the award by the parties would entitle them to its benefit, as fully as though it had been duly homologated. We also concur with the counsel for the defendants, that a subsequent execution by the wife, would cure the want of an original authority in the husband to assent for her to the extension of time.
This brings us to consider the facts upon which the defendants rely, to show an execution of the award by Mrs. Cobb and her husband. To appreciate them a brief notice of the terms of the award will be necessary.
The arbitrators, by their award, divested both Lowry, and Cobb and wife, of all personal control of the estateYod its cultivation, leaving Mrs. Cobb however, the privilege of occupying a dwelling house on it. They appointed Parham to take its entire control and administration. He was required to manage the property as a prudent administrator; was empowered to employ and discharge overseers, who were to be governed by him alone, and not to be under the control of the joint owners, a special authorization being given to him to employ Cobb in that capacity if he should so desire. He was to ship the crops in his name as agent, and control the proceeds, subject to the instructions given by the award. These were to apply the product of the estate, first to the payment of its expenses; next to the payment of certain yearly allowances for the individual use of Mrs. Cobb and Mr. Lowry; and then to the payment of the mortgage debts due to Burke, Wait Co., Hynes, and the heirs of Mitchell. His administration was to continue until January, 1850. Provision wu3 made for the subsequent partition of the estate; also for the appointment by the district judge of a suitable person to act in his place, in the event of his death, removal, or inability. The whole character of the award points to the withdrawal of the estates, for the time being, from the hands of the proprietors, whose interference, as demonstrated by their former .quarrels, was deemed incompatible with the true interests of themselves and their creditors.
Under this award we find Parham entering upon his administration. Burke. Wail Sf Co., the former factors, recognized him as agent of the estate, and paid over to him, or-upon his drafts as agent, the funds in their hands proceed
All these facts, as well as others which it is not necessary to detail, can be regarded in no other light than- as an assent to, and execution of, the award by the plaintiffs. To confirm an act not binding upon a party, a formal instrument is not indispensable. A voluntary execution involves a renunciation of the exceptions which might have been opposed to it.
It is said, however, that, by consenting to receive the proceeds of her own crops, Mrs. Cobh should not be prejudiced, for in doing so she received what was her own. The answer is, they Were not her own. Lowry was her co-proprietor. Having received them from Parham, who expressly declared himself to be the. agent of both parties under the award, to repudiate his capacity afterwards would involve a legal fraud both upon him and upon Lowry.
It is equally inadmissible to say that, the plaintiffs could thus partially execute . the award and repudiate those portions of it which were not directly comprehended in the execution. “ L’ex&cution partielle demontre, comme l’exécution totale, la volonté de confirmer l’acte vicieux-; c’est une approbation tacite. Duranton, vol. 13, § 280. See also Kinnard v. Harris, 2 B. & C. 801. The award was entire, and the plaintiff having accepted its benefit, must take its burdens.
It has been objected that Lpwry had himself acted against ths spirit of the award, by attempting to buy out creditors, for the purpose of using their claims to oust the plaintiff. The testimony on this subject is conflicting, and at most established only negotiations to that end. The unconsummated intentions of the defendant cannot effect his right under the award-.
Judgment affirmed.