Cutler v. . Cutler

AlleN, J. An agreement to arbitrate is a contract, and from it tbe arbitrators derive their authority to bind tbe parties by their decision. Tbe agreement is tbe foundation of tbe award (Sprinkle v. Sprinkle, 159 N. C., 83), and if tbe controversy relates to tbe title to land, it must be in writing. Fort v. Allen, 110 N. C., 183. Tbe agreement to arbitrate, relied on by tbe defendants, is in writing, but it is so fatally defective tbat it cannot be enforced as a contract. It contains no description of tbe land, tbe title to wbicb was in controversy, and refers to it simply as a certain tract of land, and there is no finding or statement tbat aids tbe description. We must, then, consider tbe legal effect of tbe award, as if made upon an oral agreement to arbitrate, and we find tbat tbe question was considered and ruled against tbe position of tbe defendant in Crissman v. Crissman, 21 N. C., 498, wbicb was approved in Pearsall v. Mayers, 64 N. C., 552. In tbe Grissman case, wbicb was an action of ejectment, there was an oral agreement to refer title to arbitrators, and there was a written award, and tbe Court, after stating several objections to tbe award, said: “But, admitting tbat those objections could be answered, there remains one tbat we deem insuperable. It is, tbat tbe submission was not by deed or in writing, and, therefore, tbat tbe ward, as far as it affects tbe title to land, is void under tbe act of Assembly of 1819.” There is another objection to tbe ward wbicb renders it invalid, and tbat is tbat tbe arbitrators exceeded tbe meaning and scope of tbe submission. Conceding tbat tbe land described in tbe complaint is tbe -land involved in tbe agreement to arbitrate, tbe agreement referred to tbe arbitrators tbe title to tbe land, and gave them no power to do more than determine tbe title between tbe parties, and it appears from tbe award tbat they undertook to compromise tbe matters in difference by directing one of tbe parties to pay a sum of money, and tbe other to execute a conveyance. It is well settled tbat tbe arbitrators cannot exceed tbe authority conferred upon them by the agreement. (Robertson v. Marshall, 155 N. C., Ill), and tbe case of Duncan v. Duncan, 23 N. C., 467, furnishes an application of tbe principle very much like tbe casé before us. Tbe beadnote to tbat case is as follows: “Where an action of ejectment was *485 referred, by rule of court, to arbitrators, and they awarded as follows: ‘We find the plaintiff in the case, Mary Duncan, has, at various times, paid to Eoland Duncan, in cash, notes and property valued at $1,544: we therefore award to her three-fourths the whole amount of land purchased of the executors of Charles Finlay, deceased, to be taken off of the upper part of said land’: Held, that this award was not only uncertain, but that it went beyond the rule of reference, and therefore the court will not enter judgment on it.” We are therefore of opinion that his Honor held correctly that the award was not an estoppel, and the judgment is Affirmed.