Den Ex Dem. Moore v. Gherkin

| N.C. | Dec 5, 1852

The action was ejectment, originally brought in the county court, and there by the parties submitted of record to arbitration. (74) An award was made by the arbitrators and judgment for the plaintiff, and the defendant appealed to the Superior Court. The award was as follows:

"Being appointed, etc., we did, after giving full notice to the parties to attend at this place (Free Union M. H.), on the day above named (7 June, 1852), with their witnesses, which notice they obeyed by appearing at the time and place specified, with their witnesses and papers, and both said they were prepared and ready for a hearing and trial of said suit; and after hearing all the evidence and examining all the papers, we came to the following decision unanimously — viz., that said Moore's land extends to and adjoins the line of the Thomas Pollock patent, which runs from a white oak stump north forty-five degrees east two hundred and eighty-two poles to a red oak on Rose's creek; as per Hayman's and Phillips' survey and the callings of said Gherkin's deed, who claims under the Pollock patent; and therefore we further adjudge that the defendant, Gherkins, pay all the costs of said suit. Given under our hands the days and date above written," etc.

On the trial in the court below, the defendant's counsel moved to set aside the foregoing award. His Honor overruled the motion, and gave judgment against the defendant for the costs, according to the award, and the defendant appealed. The motion to set aside the award is put on three grounds: First, the arbitrators have assessed no damages; second, the award is vague and uncertain; third, it is not final.

These three exceptions are disposed of by Miller v. Melchor, 35 N.C. 439" court="N.C." date_filed="1852-08-05" href="https://app.midpage.ai/document/demise-of-miller-v-melchor-3675429?utm_source=webapp" opinion_id="3675429">35 N.C. 439. The first is the converse of the first point made in Miller v.Melchor. There the exceptions was, that the arbitrators had assessed actual damages — here the exception is, that no damage is assessed. It is decided by that case, that the matter of damages is in the discretion of the arbitrators. When actual damages have been sustained, they are at liberty to assess them, and consequently when, in their (75) opinion, no damage has been sustained, they are at liberty to say so; and the omission to find nominal damage (which is a mere form in entering up a judgment according to the course of the court), is not a fatal objection.

The other two exceptions are precisely those made in Miller v. Melchor; and as the report of that case does not notice them, or state the facts upon which they arise, it will not be amiss to extract the portion of the opinion delivered in that case, applicable to these exceptions:

"The second exception, that the award is vague and uncertain, is not well founded. It fixes upon a certain line as a dividing line between the parties, and it is plainly to be intended, that the lessor is to be put into possession up to this line. So the court is enabled to give judgment for the entire damages and cost, and to order a writ of possession in favor of the lessor. Herein it is plainly distinguishable from Duncan v. Duncan,23 N.C. 466" court="N.C." date_filed="1841-06-05" href="https://app.midpage.ai/document/duncan-ex-dem-duncan-v-duncan-3667117?utm_source=webapp" opinion_id="3667117">23 N.C. 466, which was relied on by the defendant. There the referees said the plaintiff should pay the defendant $1,544, and convey to her three-fourths of the whole amount of land purchased of the executors of Charles Finley, deceased, to be taken off the upper part of said land. The award was uncertain and vague, because it did not show what land had been purchased of the executors of Finley; and it did not fix on any definite line by which the portion allowed was to be taken off the upper part. No judgment could be rendered by which to carry the award into effect, because, to do so, required a conveyance and a decree for a specific performance, which could not be made in ejectment. 3. There is no force in the last objection. The arbitrators, by aid of the surveyor named in the order of reference, had fixed on a line up to which the lessor is entitled to have possession. They have assessed entire damages, and have disposed of the costs. This is, it seems to us, a final and complete disposition of all the matters referred."

In the case before us, the matter in dispute was the location of the dividing line. The arbitrators fix on it by the aid of a survey and title papers, offered in evidence before them, and give its location — (76) to wit, from a white oak stump north 45 degrees east 282 poles to a red oak on Rose's creek, etc. This settles the matter in dispute. They then award that the defendant shall pay the cost, and as they say nothing about damages, the presumption is there were none. At all events, it was a matter left to their judgment, and they have made a final and complete disposition of all the matters referred.

PER CURIAM. Judgment affirmed.

Cited: Gaylord v. Gaylord, 48 N.C. 369; Coe v. Loan Co., 197 N.C. 690.