| Ill. | Apr 15, 1857
It appears from the bill, answers and evidence in this case, that George Spurck and George A. Crook, on the second day of November, 1846, entered into copartnership in the mercantile and produce business, in the city of Peoria, in the name of George A. Crook, by articles of agreement of that date; that by the terms of the agreement, all property, both real and personal, should be purchased in the name of Crook, and upon a dissolution, all property to be equally divided, after paying Crook his capital, with six per cent, interest, and deducting each partner’s account. Spurck to pay one-half of the interest on the cost of the property occupied by Crook, and that Crook on that date, had $1,800, and Spurck no capital in the concern. That they remained in business until the fifteenth day of June, 1848, when a dissolution and settlement took place. That during the continuance of the partnership, they purchased of H. 0. Merriman, lot three, in block twelve, at $450, for which they gave their joint notes; Spurck paid on the purchase $225, and the balance of the purchase money was discharged by re-selling to Merriman the south-easterly half of the lot, and he paid Crook for it, including the balance of the purchase money unpaid, $1,100. That this purchase was in the name of Crook, and at the time of the purchase, nothing was said about its being for the wife of Crook, or being paid for with her money. That they purchased of Alexander De Groff the north half of the south-west quarter of section twenty-five, in township nine north, in range seven, east of the fourth principal meridian. That Spurck made the purchase at four hundred dollars; that at the time of-the purchase he paid $64, and the balance was received in goods in their store, from both of them, at sundry times, and the deeds were made to Crook for both tracts. That on the settlement, Crook gave an instrument in writing, binding himself to convey each of these tracts to Ann L. Spurck, by good and sufficient deed, and to pay Spurck, in notes or accounts, five hundred dollars, which was declared to be a full and final settlement. That Spurck and wife had conveyed the eighty acre tract to Thomas S. Dobbins. That in September, 1848, Spurck and wife filed a bill in chancery, in the Peoria Circuit Court, against Martha M. Crook, wife of George A. Crook, William Spurck and Hart P. Anchor, to compel a conveyance of these premises. That on the 9th day of March, 1852, while that bill was still pending, the parties submitted to the arbitrament and award of Daniel O’Keefe, all suits and differences between them, whose decision was to be final. The deed of submission was signed and sealed by Spurck and wife, and Crook and wife. That O’Keefe, in April, 1852, made his award that Crook and wife should convey the eighty acre tract to Thomas Hughes, as trustee for Ann L. Spurck, but misdescribed the land, naming it the E. half N. E. 25, 9 N., 7 E., instead of the N. half S. W. 25, 9 N., 7 E. That Crook and wife should hold the house on lot three, in block twelve; and that the parties should release all claims up to time of delivering the award; and awarded the payment of costs of the arbitration and former litigation. It further appears, that the agreement for the conveyance by Crook to Ann L. Spurck was lost, after the hearing and before the making out the award for delivery. The deposition of O’Keefe was taken, and he swore that the paper was lost, and that his award would have been different if it had been present. That after the parties were heard on the trial before him, Crook, without any notice to Spurck, presented three notes, given by Spurck and Crook to B. Fortier, for $320 each, one-half of which he allowed against Spurck. It appears from the evidence of McFadden, that these notes had been given for the purchase of land from Fortier, and the contract rescinded and the notes returned to Crook, with $100, as the consideration for canceling that contract. Anchor testifies, that while the matter was pending before the arbitrator, he had a conversation with Crook, who said O’Keefe had lost one important paper ox-agreement; he said he would never find it again, (said-this with a sneering laugh.) He said that the house would be awarded to Crook, and that he had made it all x-iglxt with O’Keefe; had got it fixed with O’Keefe; that the house would go to his wife; that he could not make the award any other way. That'they had lost that important paper, and had nothing against him. He said it had not been recorded; they had nothing to show against him; The court below suppressed the deposition of O’Keefe, and on the hearing, dismissed the bill, discharged the x-eceiver, and ordered him to pay moneys collected by him as rents, to the trustee of Martha M. Crook. And from that decree the complaiixants appeal to this court.
It is a general rule, that judges, arbitx-ators and jurors are not required ox- even permitted to testify in regard to the grounds of their determination, and judges are not even allowed to testify in regard to matters that have come before them on trial; but arbitratox-s may be examined to px-ove that no evidence was given on a particular subject, or that certain matters were or were not examined, or acted upon by them, or that there is a mistake in the award; and also, as to the time and circumstances under which the awax-d was made, and as to any facts which transpired at the hearing. 3 Greenl. Ev., sec. 78; 1 Rawle, 304" date_filed="1829-06-01" court="Pa." case_name="Roop v. Brubacker">1 Rawle, 304; 5 Taunt. 454; 2 S. & It. 286, and authorities cited. The very fact that awards can only be impeached for fraud, partiality, or gross mistake of law or fact, may be, and probably is, the reason why these exceptions are made. If the arbitrator were prohibited from giving evidence of what transpired before him, as to what evidence he heard, what was or was not acted upon by him, and the circumstances and acts of the parties, the grossest fraud, corruption or partiality might prevail, and its victim have no relief. While a juror cannot be heard, to impeach his verdict, yet he may unquestionably testify as to what the parties did and said upon the trial, and also as to any improper practices to corrupt the jury in its action, and the effect it may have had upon the jury in their decision. Metcalf v. Dean, Cro. Eliz. 189; Knight v. Inhabitants of Freeport, 13 Mass. 218" date_filed="1816-05-15" court="Mass." case_name="Knight v. Inhabitants of Freeport">13 Mass. 218. In the case of Ritchie v. Holbrook, 7 Serg. & Rawle, 458, on an application for a new trial, it was objected, that the court should not receive an affidavit of a juror, showing improper conduct of a party to influence their verdict. Tilghman, 0. J., says: “ But it never has been, and I trust never will be doubted, that the affidavit of a juror shall not be received to prove misbehavior of one of the parties to the suit. The holding conversations with jurors after they are sworn, is a practice against which the court should set its face resolutely, and put it down at once.” The very necessity of the thing makes it proper. When men engage in fraud and corruption, it is not in the face of the public— they never call witnesses to attest such practices, but, on the contrary, seek, by every means in their power, to prevent detection. Erom the nature of the thing, none can know it but the juror or arbitrator, and the person using the means of corruption. To exclude the juror, or arbitrator, would be to prevent the party from showing the great injustice and wrong he may have sustained. If, in exposing the conduct of the party, the juror or arbitrator appears in a light that is not creditable to himself, it is the fruit of his conduct, and he must abide it, as any one else who may, in the advancement of justice, have to expose Ms own disgrace. We think that every consideration which applies to compelling a juror to testify to the acts of corruption or misconduct of the parties, applies with equal force to arbitrators. No reason is perceived for making a distinction. This would, therefore, have entitled the deposition of the arbitrator, so far as it relates to Crook’s furnishing him with the notes after the hearing was closed, and without the consent of Spurck, to admission. The cases before referred to fully sustain the doctrine, that if either party furnish the jury with evidence after the jury have heard the case, and the verdict shall be in his favor, that it should be set aside, as the court will presume it had an improper effect in producing the result. And so it will be, if the party converses with a jury, and they find in his favor; and the same rule should equally prevail with an arbitrator. It may be impossible for him to determine what influence it had on his mind in coming to a conclusion; and however desirable it may be, that there shall be an end to litigation, it is equally important that parties should know that they cannot profit by attempting to corrupt the streams of justice.
But even if O’Keefe’s evidence were excluded, the evidence of Anchor remains unimpeached, and shows quite enough to set aside the award. He testifies, that before O’Keefe announced his award, Crook informed him that an important paper was lost; that it would never be found; that it was not recorded; that he had fixed it with O’Keefe, and that his wife would get the lot. Does not the fact that he knew the result before the award was announced, when coupled with the' fact that he had fixed it with the arbitrator, carry conviction to every mind, that he had resorted to unjustifiable means to produce that result ? And when we remember that the arbitrator testifies that he furnished him with notes not produced on the trial, it is irresistible. We are, therefore, of the opinion, that for this reason alone the award should be set aside. But, independent of that, there is another ground that is fatal. By the rules of the common law, as it has prevailed in England and in the various States, all contracts by and of a married woman are void; and while the husband may dispose of the chattel property of the wife, he has no power to dispose of her realty. That could be done alone by the common law, by a fine suffered in open court, when she was examined by the court, in the absence of her husband, as to whether she acted without his constraint. By legislative enactment in most, if not all, of the States of the Union, she may convey her real estate by joining her husband in a deed, and acknowledging it in the manner prescribed, before a proper officer. And in all the courts where the question has arisen, they have refused to compel her to convey her land or release her dower, on any contract she alone, or together with her husband, may have made.
And it is provided by the 14th section of chapter 34, entitled Dower, R. S. 1845, p. 200, that “ No act, deed or conveyance, performed or executed by the husband without the assent of his wife, evinced by the acknowledgment thereof in the manner required by law, shall pass the estate of a married woman; and no judgment or decree, confessed or recovered, against him, and no laches, default, covin, forfeiture or crime of the husband shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.” This provision of the statute fully recognizes the principle of the common law. It then remains to determine whether the submission of a question affecting her right to real estate to arbitration is an exception to this rule. It is laid down, in Watson on Arbitrations, p. 43, that, as the deeds and other contracts of a married woman are entirely void, she can-, not bind herself to perform an award. The courts of equity, in cases where married women have joined with their husbands to arbitrate the price to be paid on an agreement to sell the real estate of the wife, have refused a specific performance. Emery v. Wase, 5 Ves. R. 846.
Judge Tucker, in his Commentaries, lays down the doctrine, that, “ Generally, whoever can contract may submit a dispute to arbitration. But those who cannot contract are incapable of such submission, for it is a contract.” 6 Munf. R. 453. Yet a husband may submit for his wife anything which he has a right to dispose of — Stiles E. 356; 5 Yes. E. 846 — but nothing else.
The obligation of Crook, gave to Ann S. Spurck a complete equitable title; and as courts of equity protect persons in their legal rights, they will not compel a married woman to part with her equitable title against her consent, any more than if it was a legal title. The fact that the claim was in litigation could not change her rights. If it could, she might, in every instance, be compelled to convey her land. It would only be necessary for her husband to make a sale, let a suit be brought, and submit it to arbitration, and get an award for its conveyance, to deprive her of her property. This cannot be tolerated by courts. Parties cannot be permitted to do, by indirection, that which they are prohibited from doing directly. We are, therefore, for these reasons, of the opinion, that the award was not binding on the • complainants, and that the decree of the court below should be reversed, and the cause remanded.
Decree reversed.