Knight v. . Holden

*111 Smith, C. J. (after stating the case). The sufficiency of the terms of the submission 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 fus award, does not invalidat. what is done within the terms of the reference. Griffin v. Hadley, 8 Jones, 82, citing Cowan v. McNeely, 10 Iredell, 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 olaintiff, and this was admitted at the trial. At the same time, the land is declared to be charged with the sum of two hundred and seventy-five dollars 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 incumbrance. 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 arbitral or, 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 defence was a trust to redeem the land, whose possession was sought to be recovered in the suit, and most of the costs *112 were incurred in determining this controversy, in which the defendant prevailed. As, under a 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 defence relied on in the single action which now admits it. Here, the defence is, that '.be 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. There is no error. Affirmed.