(September Term, 1889.)
Arbitration — Possession — Costs.
K. and H., by agreement in writing, submitted all matters in dispute between them, "including the title and right of possession" to a tract of land, to the arbitrament of B., who awarded that, upon the payment of a certain sum by H. to K., the title to the land should be vested in H., and that thereupon K. should convey, and in default of payment the land should be sold by commissioners, and the proceeds applied to the satisfaction of the amount awarded to be paid. The land was sold and purchased by K., who brought suit to confirm him title and for other relief. The defendant assailed the award, and particularly that part which directed the sale, and upon the trial, it was adjudged so much of the award as directed the sale was void, but that plaintiff held the legal title to the land and was entitled to have it charged with the amount fixed by the award, and gave judgment against defendant for costs. Held —
1. That the arbitrator did pass upon the right to the possession, when he awarded that the title was in K., the right of possession following the title.
2. That defendant was properly adjudged to pay the costs.
APPEAL from Graves, J., at September Term, 1889, of FRANKLIN.
C. M. Cooke and N.Y. Gulley for plaintiff.
J. W. Hinsdale for defendant.
While an action by the plaintiff against the defendant for the recovery of certain personal property, of which the latter had taken possession under a claim of right thereto, was pending in the Superior Court of Franklin, the parties, with a view to an adjustment of matters in controversy, entered into a written agreement to submit the same to arbitration.
(110) The defendant, at the trial, admitted the legal title to the locus in quo to be in the plaintiff, and set up an equitable title in himself, insisting that the award of the arbitrator is void, and that it certainly is void in so far as it provides for the sale of the land.
The action was tried before his Honor upon the pleadings, upon the suggestion that if he should sustained the award it would not be necessary to go any further in the trial of the case.
His Honor held that the award was void in so far as it provided for a sale of the land, and set it aside to that extent; and also held that the defendant must pay all the costs, though his Honor sustained the defendant in his equitable defense, and held that the plaintiff could not recover upon his legal title, but that he held the land in trust for the defendant to secure the amount of the award and costs ($275) due to him, and ordered a judgment accordingly, and all costs.
From this judgment the defendant appealed.
The sufficiency of the terms of the submission (111) to sustain so much of the award as authorizes and directs a sale of the land upon the occurring contingency, adversely decided by the judge, is not before us, as the plaintiff, acquiescing therein, does not appeal; and it is plain that the excess of the arbitrator, being severable from the rest of his award, does not invalidate what is done within the terms of the reference. Griffin v. Hadley, 53 N.C. 82, citing Cowan v. McNeely, 32 N.C. 5.
It is insisted by the appellant that the award is inoperative and void, because it does not dispose of the question of title and right of possession. We do not concur in this view of the award. The title, if not in direct terms, by clear and irresistible implication, is declared to be in the plaintiff, and this was admitted at the trial. At the same time the land is declared to be charged with the sum of $275 due to the defendant. Possession follows title, and is drawn to it, nothing else appearing to the contrary; and so the award, in legal effect, in determining the one, determines the other. Hence the necessity of the sale to discharge the attaching encumbrance. The award, then, does pass upon both inquiries as fully as if expressed in more particular terms.
The last objection is to the judgment taxing the appellant with the cost of the action. In this we find also no error. The defendant resists the award as ineffectual in toto, and in this is overruled, and the same relief given as was attempted to be given by the arbitrator; so that, the present action was necessary to secure the fruits of the award, and the general rule prevails which taxes the unsuccessful party with the costs of the action.
The case relied on to sustain the contention of the appellant ( Vestal v. Sloan, 83 N.C. 555) is not in point. There the defense was a trust to redeem the land, whose possession was sought to be recovered in the suit, and most of the costs were incurred in determining this controversy, in which the defendant prevailed. As, under a (112) divided system, this relief against an action of the legal owner to recover his land would have to be sought in a court of equity, the cost of which would fall upon him, so he must be charged when the same result is reached in an equitable defense relied on in the single action which now admits it. Here the defense is that the award is invalid and the defendant fails in his resistance to its enforcement, and, of course, ought to pay the costs his conduct has rendered necessary.
Cited: Kelly v. R. R., 110 N.C. 432.