Opinion
June Term, 1821.
An award ought not to be set aside unless it certainly appears to be against law, and that in a case where the arbitrators meant to decide according to law.
FROM RUTHERFORD. The question presented in this case was whether an award which had been set aside by the Superior Court of Rutherford was properly set aside and the plaintiff properly ordered to pay costs, and the following were the facts:
The plaintiff had purchased of the defendant a tract of land, and before he had fully paid for it, discovering that his vendor claimed the land under a younger patent, when it had been previously patented by Tench Coxe, he sued on the covenants in the deed; and before issue was joined the parties agreed to refer it to arbitrators and their award to be a judgment of court. Frazier had been in actual possession of the land for seven years, claiming under his patent. The award was in the following words: "We, the undersigned, being mutually chosen by, etc., to settle, determine and give an award about a (380) controversy existing between them respecting a certain tract or parcel of land which said Jones now lives on, having taken the claims of both parties into consideration, do award that Jones shall pay all legal costs upon his suit against Frazier. We do further award and say that as it doth appear to us the fee simple of the tract of land that Jones bought of Frazier was not in Frazier at the time of the sale, therefore Frazier shall give up the judgment or execution that he has against Jones for the sum that yet remains unpaid of the price of the land, and that in three and six months he shall pay back the purchase money that he has already received."
The affidavit of one of the arbitrators was read in the court below, from which it appeared that their decision was founded on an opinion that the seven years' possession of Frazier could not give him title inasmuch as his patent was included within the bounds of the elder patent to Coxe; and that those claiming under Coxe, having been in uninterrupted possession of a part of the elder patent, were by construction of law in possession of the whole.
Mordecai for the plaintiff.
As I think the real and substantial justice of this case was settled by the award I should be unwilling to set it aside unless compelled to do so by some rule of law. When Jones brought the land he expected to obtain an undisputed title, but discovering that the vendor claimed under a younger patent, when the same land had been previously patented, he sued on the covenant in the deed, and before the cause was put to issue the parties referred it to four of their neighbors to settle. The arbitrators decided from the fact of the older patent and possession under it that the defendant's seven years' possession did not give him a title, and that the possession of those claiming under Coxe's patent was co-extensive with their claim. Admitting the law to be otherwise, still it gives Jones such a title as is liable to be drawn into controversy and which he cannot establish in the common way of land titles by producing recorded grants and deeds, but must resort to parol evidence to prove Frazier's possession. It may happen, too, that some of the parties claiming under the elder patent may have been under disability during the whole time of Frazier's possession, thereby preventing it from ripening into a title. Now an award ought not to be set aside until it certainly appears to be against law, and that in a case where the arbitrators meant to decide according to law. From the few facts set forth in the case I cannot draw this inference, and therefore think that the judgment of the Circuit Court setting aside the award should be reversed and judgment be entered according to the award.
This award sets forth no fact on account of which it ought to be set aside. If it was right to look into the affidavit which accompanies it that affidavit, instead of militating against it, furnishes the strongest reasons why it ought to stand. The plaintiff sold a tract of land to the defendant for which an older grant had issued, and whether the title under that (383) grant had been lost and acquired by the junior grantee by a seven years' uninterrupted possession had never been ascertained by a trial between the parties. The arbitrators were at liberty and, I think, did right when they released the defendant from a contract for the purchase of land over the seller's title to which such a cloud was hanging; they were right in saying he should not be bound by a contract which would necessarily involve him in litigation. There is no evidence that he had any knowledge that the land was claimed by any other person than the plaintiff at the time of the purchase. I think the judgment of the Superior Court which set aside the award ought to be reversed and a judgment entered confirming it.