Field v. . Moody

Burwell, J.: There was no exception taken by plaintiffs to the order made at Fall Term, 1891, by which the cause was referred back, for the purposes therein named, to the arbitrator whom the parties had selected, and it is stated in the “ case on appeal ” that the plaintiffs withdrew all exception to the award. The agreement of the parties to submit the matter in controversy to arbitration contains the stipulation that no writ of possession for the land described in the complaint should be issued “until the determination of the matters submitted to the arbitrament and award of the said McLean.” That matter will not be determined till the plaintiffs have paid to the defendants the sum which the arbitrator found to be due them for improvements put upon the land while it was held under the parol contract, which the plaintiffs, as they may do, have repudiated. Herman v. Watts, 107 N. C., 646. Under the agreement of the parties and the award, as well as under the law as set- *358 tied by the cases of Hedgepeth v. Rose, 95 N. C., 41, and Pitt v. Moore, 99 N. C., 85, the plaintiffs should not be allowed to take the property which the defendants have improved, without compensation for the additional value which their improvements have conferred upon the property. The sum found by the arbitrator to be due for improvements, and also the costs of the action, including an allowance to the arbitrator, should be adjudged to be a lien on the land, and, according to the agreement of the parties, no writ of possession should be allowed to issue till these amounts are paid. There was error. Let the cause be remanded, that proceedings may be had in accordance with this opinion. Error.