Crabtree v. Green , 8 Ga. 8 ( 1850 )

By the Court.

Nisbet, J.

delivering the opinion.

Upon a motion to set aside the umpirage in this case, some seventeen points were made against it, and all overruled by Judge Fleming. We are to determine whether, in reference to any of these points, he committed error. I pursue the order in which the errors are alleged in the bill.

[1.] The Court is claimed to have erred in this, that he refused to consider at all, those points against the umpirage or award of the umpire, which relate to irregularities charged in the motion, against Dr. Wragg, one of the arbitrators.

The Court below was called upon to set aside the umpirage of the umpire. The arbitrator’s, and also the umpire, were named by the parties and designated in the submission, which was made a rule of the Court. The arbitrators proceeded to consider of the subject matters referred to them, and disagreed upon the main point in controversy, each giving a separate opinion. They, therefore, made no award. The Court was considering the judgment of the umpire, and that only. It had nothing to do with the conduct of the arbitrators. They having failed to make an award, the umpire occupied the position of a sole arbitrator. His duties were the same, which were devolved upon the arbitrators — his powers, and the limitations upon him, the same — all derived from the submission. The written opinions of the arbitrators were not before the Court as judgments. Their functions ceased upon their final disagreement, and the umpire succeeded to them. The umpire was bound to decide upon his own sole responsibility, irrespective of the acts, whether legal or not, of the arbitrators. This is all true generally; it is especially' true in this case, because the rule of submission devolved upon him expressly the duty and power to decide all the matters submitted, for it declares, “ and in ease said arbitrators earinot agree, then all the said matters in difference, aforesaid, are to be submitted to the award, arbitrament, final end and determination of Mr. Aaron Champion, of the City of Savannah, State and County aforesaid, as sole umpire, to decide the said matters in difference, and mutually chosen and selected by the said parties for that purpose, &c.’? The submission is the chart of his powers, as well as those of the arbitrators. Upon this reference, there was but one judgment before the Court. The questions were made upon, that judgment. The presiding Judge, in our opinion, was not at liberty to pronounce upon it, according to the conduct of strangers to it, and was, therefore, right in refusing to consider the points of irregularity made in the motion to set aside the award of the umpire against Dr. Wragg, one of the arbitrators. Kyd on Awards, 101.

[2.] The second exception falls, necessarily, with the first. This exception asserts this proposition, to wit: “that the duties and powers of the umpire are restricted to those subject matters submitted, about which, the arbitrators differed.” .The umpire decided that the costs of the reference should be paid by Crabtree. About that costs, the arbitrators gave no opinion, and did not, consequently, differ; therefore, says the plaintiff in error, the judgment of the umpire ought to be set aside. But this question of costs was one of the matters submitted distinctly to the arbitrators, by the terms of the submission, and if equal power and the same duties devolved upon the umpire, which were cast upon the arbitrators, he was right in deciding it. That he was clothed with all the powers of the arbitrators, we have already seen. The submission is the evidence of what are his duties. He was not restricted to such matters as those upon which the arbitrators could not agree. He was made a judge, not to settle differences between the arbitrators, but differences between the parties. Into that covenant he came.

[3.] The eleventh exception in the motion to vacate the award, assumes that it is void, because it directs no conveyance to be made of the land awarded to the plaintiff, Green, and it is insufficient, of itself, for that purpose. The presiding Judge overruled the exception, and that decision is the third ground of error in the bill. The subject matter submitted was astrip of land on the Savannah river, being a part of a lot of two hundred acres. For this entire lot, the plaintiff brought ejectment. The umpire awarded the strip of land to the plaintiff, and it is-objected that he did not direct a conveyance to be made. It was not necessary the' award is good without it. It is as effective to transfer the property, as would be a judgment in ejectment. "When made, it is directed in the submission to be entered as the judgment of the Court. It is .the judgment already of the forum selected by the parties to decide upon their rights. That decision, when made, is agreed between the parties, with more than the usual distinctness, to be final. This award is pleadable (and would be a prevailing plea) to any future action by the defendant against the plaintiff for the land. He is estopped, by the award, from denying' the plaintiff’s title; In. a suit for the land, the award being pleaded, he would not be permitted to go into evidence of title. In point of fact, the question here was not one of title, but a question of boundaries. The plaintiff was in possession of the lot of two hundred acres sued for; his title to that lot was not controverted before the umpire. The question was, whether the strip of land awarded to the plaintiff was embraced within that lot. Although the award might not have the operation of conveying the land, yet it would estop the defendant from setting up his tide to it, or disturbing the plaintiff’s possession. 3 East, 15. 4 Dallas, 20. 2 Johns. R. 322. 1 Wend. 326. 9 Coke, 78. Vin. Ab. Arb. a, 5, u, 11, y, 1. Rolle Arb. d, 9. 6 Pick. 148. 4 Ibid, 507. 15 Mass. 146. By Statute in this State, a decree in Equity passes the title to land as a deed. Hotchkiss, 682.

[4.] The fourth error is charged to consist in this, that the award was held to be good, although not made under the seal of the umpire. The submission does not require it to be under seal. It requires it to be made in writing under the hands of the arbitrators. It was so made and returned. It pursued the submission in this particular, and that is sufficient. Kyd, 261 to 263.

As I have already stated, the plaintiff brought ejectment for two hundred acres of land.; the defendant, by plea, set up a title to a «mall portion of it, under the Statute of Limitations. The subject matters, involved in the suit, were submitted to arbitration, and the rights of the defendant, under the Statute, were distinctly,, eo nomine, submitted. It is said that the Court erred in overruling this exception, in the motion to set aside the award, to wit: “ The umpire denied to the defendant the benefit of the Statute of Limitations, without assigning reasons therefor, and in denying him the benefit of the Statute, acted contrary to the law of the land.” This exception presents two questions—

[5.] 1st. Can an award be set aside, because the umpire gives no reason for his judgment? 2d, Can it be set aside for a mistake of the law?

The matter is submitted for the award of the arbitrator or umpire, and not for the reasons of his judgment. He may give reasons or not. If he does not, it is no ground to impeach the award.

[6.] The general rule is this : an award cannot be impeached but for corruption, partiality or gross misbehavior in the arbitrators, or for some palpable mistake of the law or fact. Awards are treated with great liberality. The parties make the arbitrators judges, and their judgment has much of the solemnity which attaches to the judgment of a Court of Justice. The rule above laid down, obtains in Equity. It is still more stringent at Law. At Law, an award, upon a submission which involves both law and facts, will not be opened for a mistake of the law, unless the mistake appear on the award itself, and even then, it must be in a case where the arbitrator, intending to apply the law correctly, has mistaken what the law is. To illustrate : If, in this case, the umpire had awarded in favor of the plaintiff, and proceeded to say, that the defendant had not been in possession the statutory term of ten years, and, therefore, although in possession for seven years, was not entitled to the benefit of the Statute, it would have been such a mistake, as at Law, would have invalidated the award. Parties may submit the law to arbitrators — they may clothe them with power to decide that, or to decide upon equitable principles, irrespective of the rules of law. I apprehend that no case is to be found, where the question of law being submitted distinctly, and the judgment being on that question, nakedly, that judgment has been opened because of a mistake of the law. That is this case. In totidem verbis, the Statute of Limitations was, iñ this rule, submitted, and the umpire decided on it without giving reasons. Tho parties agreed that the decision should be final, and went so far as to bind themselves not to bring a writ of error. Watson on Awards, 59 vol. Law Library, 289. Payne vs. Massey, 9 J. B. Moore, 666. 17 Eng. Com. Law Rep. 129. Chace vs. Wetmore, 13 East, 357. Bouttilleer vs. Thick, 1 Dowl. & Ryl. 366. Cramp vs. Symonds, 7 J, B. Moore, 434. Kyd, 185, 237, 238. 3 Caine's R. 167. 14 Johns. R. 105. 10 Ibid, 146, ’7. Lucas vs. Wilson, 2 Burrow, 701. 2 Johns. R. 62. 3 Ibid, 367. 3 Atk. 529, 644. 1 Johns. Ch. R. 102. 2 Vern. 251. 1 Vesey, Jr. 369. 2 Ibid, 22. 4 Porter, 70, 71.

[7.] The sixth and tenth exceptions are to the same question, and may be considered together. The substance of these exceptions is, that the Court held that it was not necessary, under the facts of this case, that the umpire should have reheard the case, notifying the defendant to appear and examine witnesses and submit evidence, and in that ruling, committed error.

It is developed in the record, that the umpire did, in fact, inform Crabtree, the defendant, that the arbitrators had disagreed, and that the opinions of the arbitrators and the papers in the case were in his hands, and that the whole matter was submitted to him for final umpirage, and farther, that he asked Crabtree if he desired him to re-hear the witnesses, and to this inquiry, he replied that he did not desire it, and that he was satisfied that he should proceed under the written statements of the arbitrators and the other papers submitted. These facts appear by the affidavit of Mr. Champion, the umpire; in reply to which, the affidavit of Crabtrco states, that the conversation between himself and the umpire, was a loose and desultory one, and that he was under the impression that he or his attorney would be summoned to attend at the time and place, when and where the umpire would make his award; and he farther states in his affidavit, that he had various title deeds to the premises in dispute in his possession, which the umpire ought to have had before him. To these statements of the defendant, the answer is obvious. If the conversation was a loose and desultory one, yet it was one which he understood — it was notice to him that the arbitrators had disagreed, and that the umpire was called upon to decide. The question was distinctly put, whether he desired the umpire to re-hear the witnesses, and the answer distinctly made, that he did not desire it, but was satisfied that the umpire should proceed to determine, under the written statements submitted by the arbitrators and the other papers in his hands. He had notice, and he waived his right to appear, examine witnesses, and present the title deeds in Ms possession. What right has he to complain % He took the risk of a decision on the statements of the arbitrators and the other papers submitted. Had he, after this conversation, and before the umpirage was made, demanded a hearing, the case would have been different. Besides, the title deeds to the premises had no relevancy to the matter in dispute. From the supplement to the bill, added by agreement of counsel — from the evidence submitted to the arbitrators, and from their written statements, it is clear that the title to the land, awarded to Green, was not in dispute, except so far as it depended on the Statute of Limitations. Hall vs. Lawrence, 4 T. R. 589. 1 Baily, S. C. R. 81, 82. 2 Baily, S. C. R. 113. Kyd on Awards, 101 to 104, and notes. I place this decision, not on the ground that it is not necessary for the umpire to give notice and re-hear the cause, but upon the ground that the party had notice aid waived his right. The discussion of the other point (and it is a mooted one) is not necessary to the case. See authorities last cited, and 4 Dall. Penn. R. 232, and 2 Dall. 271. Upon these views, we sustain the Court below on the 6th and 10th exceptions.

The seventh exception was not pressed, and requires no opinion.

[8.] The eighth seeks to convict the Court below of error, because he refused to hold that the award should be set aside, because it does not describe the land awarded to the plaintiff, with sufficient certainty. The award describes it as part of the land set forth in the plaintiff’s declaration, and in the possession of the defendant, by metes and bounds, by landmarks and contiguous possessions, and a map of it accompanies the award. What more could be done 1 The description is minute, intelligible, and quite sufficient for identification.

[9.] The ninth and last exception, claims the umpirage bad, because the umpire did not decide upon all the matters submitted. The plaintiff, as before stated, being in possession of two hundred acres, less a small part of it, which was in possession of the defendant, brought ejectment for the whole, and all the matters involved in this suit were submitted. The umpire awarded the small portion, in the possession of the defendant, to the plaintiff, without saying to whom the large remainder belonged, and therefore, says the plaintiff in error, the award did not pass upon all the matters submitted, and is illegal. The terms of the submission embraced all matters in difference between the parties to the suit, and in relation thereto. Because the plaintiff’s declaration went for two hundred acres, it does not necessarily follow that the parties were in difference about all of that land. A plaintiff may sue in ejectment for five thousand acres, and submit proof as to, and recover only five. But in fact, the small amount of land awarded to the plaintiff, was the only matter, so far as the lands are concerned, in difference. To whom that belonged, was the actual question. The possession of the remainder being in the plaintiff — his title not denied, but admitted by the defendant’s counsel — it remained, after the award, precisely in statu quo. An award concerning that, would have been supererogatory. The rule clearly is, that .the award must comprehend every thing submitted, and must not be of parcel only. If, indeed, the letter of the submission here embraced all the land, still this award is good; for the rule, as above, is subject to this limitation, to wit: If the words of the submission be more comprehensive than those of the award, yet if it do not appear that any thing else was in dispute between the parties, besides what is comprehended iti the award, it will be good. As, if the submission be of all actions, personal and real, and the award be of actions, personal only, it shall be presumed that no actions, real, were pending between the parties. Kyd, 172. Jackson vs. Ambler, 14 Johns. R. 105, 106. 8 Coke, 98. 19 H. 6, 6, b. Rol. Arb. L. 5. The land awarded to plaintiff, and that alone, was in dispute between these parties. This is manifest in this, that counsel of defendant admitted on the record, that the title to the lands was in Green, in this, that the evidence before the arbitrators was confined to the mere strip, and in this, that tha statements of the arbitrators have reference to that only. The case, therefore, falls within the limitations of the rule.

Let the judgment below be affirmed. '