Hale v. Woods

9 N.H. 103 | Superior Court of New Hampshire | 1837

Richakdson, C. J.,

delivered the opinion of the court.

It does not appear that Lovell, or A. Blood, or any person claiming under them, has ever adopted the line established by the referees.

It does not appear that William Blood conveyed to Lovell and Blood, with a warranty up to the particular line established. The warranty, then, is immaterial in this case.

But admitting that William Blood warranted to this line, the rule that, when one conveys with warranty, a title subsequently acquired by him enures to the benefit of his grantee, does not apply. Co. Litt. 265, b ; 5 N. H. R. 535. For the question is not whether, supposing the award to be binding, it can enure to the benefit of those claiming under him, but whether the award is, under the circumstances, binding upon any body.

It is settled, that a parol agreement between the owners of adjoining lands, to settle a line between them, is conclusive against them, and all claiming under them. 6 N. H. R. 107 ; 3 East 16.

But in this case, when the agreement to refer the matter of the disputed line was made, William Blood was not an owner, and it does not appear that he had any authority from the owner to refer. The question, then, is whether the award binds either party as to the line.

It clearly could not bind Lovell and A. Blood, for the conveyance to them was prior to all these proceedings.

If an award be void for all that is to be done on one part, it is void for the whole ; for there is no recompense for what is done on the other side. Com. Dig., “ Arbitrament,” E, 18-19 ; 6 Pick. 152-3 ; Kyd on Awards 146-7 ; Caldwell on Arbitration 121 ; 2 Saunders’ R. 293, b.

The award in this case can have no greater effect than a parol agreement between William Blood and Woods to settle the line, executed by erecting monuments accordingly.

Such an agreement, as well as this award, would be conclusive between W. Blood and Woods so long as W. Blood continued to occupy the land, and no longer. It would not bind Lovell and A. Blood.

Such an agreement, as well as an award on the subject, is an estoppel, between the parties to it, to deny the line. But it is an estoppel only between the parties to it, and those claiming under them through subsequent conveyances. It is certainly not conclusive between these parties. It would not be evidence against this demandant. It is not, then, evidence in his favor. 1 Stark. Ev. 195.

The verdict for the plaintiff must be set aside.