Handy v. Cobb, 44 Miss. 699

Handy v. Cobb

44 Miss. 699 | Miss. | 1870

SlMRALL, J.:

Henry M. Oobb, and Emily, his wife, exhibited a bill of review against John Handy, to vacate and set aside a decree obtained by Handy against them. ,The gravamen of the bill is, that the matters in controversy in the original suit were submitted to arbitrators, who made .a report which was confirmed by the court. But that Emily, in whom was the legal title to the lands in dispute, was a married woman, the wife of Henry M. Oobb, and that she was incapable of binding herself by the submission.

A demurrer to the bill was overruled, and leave given to the defendant, Handy, ninety days to make further defence. Within the ninety days, Handy filed a plea, setting up that all the matters of difference in the original suit were submitted to arbitrators, who made a report, which was confirmed by the court. This plea was not heard on its sufficiency in law, nor was its truth controverted ; but, without any action upon it, a pro oonfesso was taken against defendant, Handy, for failing, as recited in the order, “ to plead or answer and, therefore, a final decree was made. This was manifestly error. The cases in which a bill of review may be brought, are settled and declared in the ordinances of Lord Chancellor Bacon, which ordinances have always been closely adhered to. 1st. Error of law apparent on the face of the decree ; 2d. New matter which hath arisen in time after the decree ; 3d. On the special license of the court, on new proof come to light since the decree, and which could not possibly have been used at the hearing. Story’s Eqp PL, § 403. In England, it is the practice to recite in the body of the decree, the leading facts upon which the decree rests. In America, the practice generally is, to omit a recitation of the facts which conduce to the decree, embodying in it only the relief granted. Because of this difference, the court is not, with us, confined to the “ body of the decree.”

A bill of review is in the nature of a writ of error, and ■can only be brought upon a decree final, signed and enrolled. If there does not obtain the ceremony of enrolling,. there *703must exist the equivalent fact, that'it is complete and final. Dexter v. Arnold, 5 Mason, 310; Massie v. Graham, 3 McLean, 41.

The decree-sought to be reviewed is final. It is a confirmation of the award of the arbitrators, which thereby becomes the judgment of the court, on which process may issue. Rev. Code, 371. But was this suit and the matters in controversy, referred to arbitrators in accordance with the statute ? There was, no formal submission, under a “a rule of court.” But it abundantly appears that the parties intended to refer to the decision of the arbitrators* as the decision of the court and in lieu of it. When the “ award is returned and approved by the court,” it shall have the same effect as the final judgment or decree of the court.” The language of the statute is : “ And the award of such referrees being made and returned according to the rule, or submission of the parties.” This implies that if the parties submit to referrees, it shall be as good as if the court by rule, made the refer-renee. It conveys the idea that a submission by the parties of a pending suit to referrees, is as effectual as a “ rule ” or a order ” of court, reciting their consent to refer, and when in either case, the award is reported and “ approved,” it is, or shall have the same effect as the judgment or decree of the court.

But has the wife power to consent to an arbitration, especially when her heritable interests in lands are involved? The words of the statute are broad enough to include femes covert and infants. “ In all suits or actions,” “ it may be lawful for the plaintiff or defendant to consent 'to a rule for reference,” etc.- It is the a consent,” which gives efficacy to the reference, rather than the action of the court. A submission to an award, is an act in the discretion of the parties; therefore, every one capable of making a disposition or a release of his rights, may refer to arbitration. Comyn. Dig., title, Arbitration, D., 2 Billing on Admr., 27.

A married woman, being under disability, cannot, as a general rule, make the agreement to submit. Kyd on *704Awards, 35; Comyn Digest, (supra). She may, however, if she has a general power of disposing of property, settled to her sole and separate use. Hulme v. Tennant, 1 Bro. Ch. R, 16. So the wife of a man civilly dead, or a feme covert trader, by the custom of London ; for in these cases, the wife, to all intents, is, or acts as a feme sole. But it is only ■over matters with respect to which she has the capacity of a feme sole, and touching which coverture is no disability, that she can make the agreement. Mrs. Cobb would not, without the concurrence of her husband, make a disposition of or release her title to the lalid in controversy. The prox>erty was not settled upon her with a general power of disposition notwithstanding her coverture. Her rights are controlled and defined by the statutes on the subject of separate property of married women. We do not think that the statute in regard to arbitrations and awards, gives, or was intended to give, the authority to agree and consent to parties who were under the disability of minority or coverture; and that, therefore, the award is not obligatory on Mrs. Cobb. The fact that Mrs. Cobb was covert, appears on the face of the pleadings and record, and to give, by confirmation of the award, the force and effect of a decree to it, by which she was to be divested of her title to half the lands, was an error of law, for which the decree may be reviewed and reversed. There was no error, therefore, in overruling the demurrer to the bill. For the error of pronouncing final decree whilst the decree is pending, the decree must be reversed. But the chancellor, however, on final hearing, in no event, can go further than to vacate the decree, which would leave the original suit pending for further proceedings, as though no award had been made.

Decree reversed.