53 Tenn. 159 | Tenn. | 1871
delivered the opinion of the court.
This case illustrtrates the wisdom of an observation of Mathew Bacon, that as an award is in the nature of a judgment it ought to be wholly decisive; for if it does not determine the matter, it becomes the cause of a new controversy: 1 Bacon Ab., 331. In this action of ejectment the parties agreed of record to submit the matter of boundary in controversy to two arbitrators, whose award should be adopted as the judgment of the court. . The submission requires said arbitrators to “go upon the premises and call before them the witnesses, and if need be, have a surveyor, and have the title papers and the papers in this cause, and after hearing the proof, they shall settle and establish the line in dispute between the parties according to the law and evidence, and shall make out in writing their award, showing the lines; they may determine between the parties, and shall report the same to the next term of this court, which said award shall be made the judgment of the court in this case.” At the subsequent term the arbitrators accordingly reported their award, defining and designating the disputed boundary as follows: “The dividing line between the plaintiff and defendant shall begin at a white oak on the bank of Milliken creek, marked as a fore-and-aft tree in the original partition of the Hill land, and now
There are two objections to this judgment. An award must strictly conform to the submission, and the judgment of the court is a nullity unless it 'conforms to the award. An award, in order to be conclusive, must be final. It must dispose of the matter in dispute, and leave nothing to be done except its incorporation in the judgment of the court and final execution upon that judgment. An award may be good for part only, but then it must be final as to that part. It must be ■ final in all cases: 1 Bac. Ab., 340; Young v. Shook, 1 Rawl., 304; Grier v. Grier, 1 Dall., 173; Carnochan v. Cristee, 11 Wheat, 446; 2 Pars. Cont., 696; 1 Sugd. Vend., 408. The award in this case did not follow the submission in that by this submission the arbitrators were authorized to go upon the premises and have a survey in their presence; and here the award is agreed upon, settling the boundary and in a definitive way, so that it could not be misunderstood, and the survey author
Let the judgment be reversed and the case remanded for another arbitration under the same, or such other submission as the parties may agree upon.