Stewart v. Cass

| Vt. | Mar 15, 1844

The opinion of the court was delivered by

Hebard, J.

The parties were owners of adjoining parts of the same lot, and the controversy between them was in relation to the location of the dividing line. The parties, in writing, submitted the matter to an arbitrator, and he made examination and awarded in the premises. The location of the line by the arbitrator gave a strip of land to the plaintiff, which was enclosed and occupied by the defendant; — and to recover that strip this action is brought. And the plaintiff relied upon this award to establish his right to recover.

In the first place, it is objected by the defendant that the parties did not agree to abide the award, and that, therefore, it is not binding. There is no express agreement to that effect, except as to the payment of the cost; and that alone would afford a very strong presumption that the understanding of the parties was, that the award should be binding ; but such agreement is not necessary. If the parties agree to submit, and actually do submit, and an award is made in the- premises, an agreement to abide the award is implied.

It is farther objected to the award that the arbitrator exceeded his powers. If he did, the award is void. The arbitrator has located the line, and, in doing so, he has staled the modus operandi by which he arrived at his conclusion. That is not exceeding the terras of the submission. He must have reference to something else besides the line itself, in order to determine the point in controversy. He must have used some such means as he has stated. He must measure other lines, and estimate quantities and distances, and this is all he did. It was not necessary for him to have stated all this in his award; but having stated it, the only effect that it can have upon the award is to furnish the means of testing its accuracy.

Another objection that has been urged against the plaintiff’s right to recover in this action is, that the defendant was not shown to be in possession of the demanded premises. But we have no difficulty on this point. The defendant claimed this land as being his own; else the controversy about the line could not have arisen. He had it partially enclosed by a fence, which was sufficient to designate the extent of his claim ; and, after the award was made, the defendant refused to give it up. Under this state of facts, the charge of the court was correct.

But the main question is in relation to the effect of the award. In this state, the subject of an award respecting the title to land has received no very extensive consideration. In some of the states the ancient doctrine, that arbitrators cannot decide upon the title to real estate, has been considerably shaken. This court, on the present circuit, has refused to give any effect to a parol submission and award, relating to the title and boundaries of land.^* But in this case the objection that was then urged, growing out of .the statute of frauds, is obviated. And the farther objection that has been urged in this case, which is the want of a seal, is unimportant, — for a writing not under seal is sufficient to take a case out of the statute of frauds, so as to enable a court of chancery to decree a specific performance. It is not claimed that this is a- mode pointed out by statute for conveying land, and a seal upon a deed has no effect upon the instrument, except what the statute has attached to it. It is one of the requirements of the statute in making a conveyance of land.

But in the present case I do not apprehend that it is necessary to go to the extreme of the doctrine that is found in some of the cases referred to. There was no dispute between these parties in relation to priority of title, or the sufficiency of the instrument by which they respectively claimed to hold -the land, nor in relation to the source from whence the title was derived; — nor did either party pretend that the other had lost or parted with any title that he ever had possessed. The different pieces of land owned by the parties belonged to the same lot, and we may presume that they derived their title from the same source. So that it stands confessed by the parties that each has a good title to a portion of said lot, and that their portions are contiguous; — their dispute, therefore, is in relation to the location of the dividing line.

We therefore think this is not, strictly speaking, an award in relation to the title of land, and that the authority of the case of Shelton v. Alcox, 6 Conn. 240, is not needed to sustain the judgment of the county court. That case, and a variety of other cases, go upon the ground that an award may so far settle the sufficiency of the title by which land is claimed, as to estop the other party from setting up a title. Whether that may become the doctrine of this state it is not necessary now to decide. But we are prepared to say that the owners of contiguous pieces of land, each acknowledging the sufficiency and validity of the title by which the other holds his land, may bind themselves by their written submission and award as to the location of the dividing line, and that each will be estopped from afterwards denying that as being the true line.

Judgment affirmed.

Note by Hebabd, J. There was another suit between the same parties, founded on this award, to recover the costs of the arbitration;— but all the questions raised in that case grew out of the legality and sufficiency of the award, and are the same that are decided in this case.

* Smith v. Bullock et al., ante, page 592.