Cox v. Jagger

Curia, per Woodworth, J. The law is well settled, that where the parties might, by their own act, transfer real property, or exercise any act of ownership with respect to it, they may refer any disputes concerning it to the decision of arbitrators, who may order the same acts to be done which the parties themselves might do by agreement. (Kyd on Awards, 61.) The demandant’s claim of dower being a proper subject of submission, the inquiry will be, whether the award is a bar to the action. The submission and award are set out in the plea, with an averment, that after publishing the award, Cox tendered the costs, and paid to the demandant two quarters of the yearly allowance. The authority given to the arbitrators cannot.be extended to persons or things beyond the scope of the submission. An award may be good in part and bad in part, where that part which is void is not so connected with the rest as to affect the justice of the case. It is then void only pro tanto. (Martin et al. v. Williams, 13 John. 264.) It is contended that the award is defective, in not having directed a release of dower. To this it may be answered, [650] , that the demandant, by the submission, bound herself, on the fulfilment of the award, to release her dower and damages. This act being provided for by therparties, it became unnecessary for the arbitrators to direct a release. It will be seen that their powers were confined to two objects—the sum to be paid, and the security to be given. Having disposed of these, there was a compliance with the terms of the submission. But, independent of this, I do not think the omission fatal, for they award that all suits touching the premises shall cease, and that the yearly sum of $35 is in lieu of the right of dower. If, then, in consequence of the award, the demandant could not maintian an action, the effect, as it respects the defendants, is the same as if a release had been awarded and actually executed. They are equally protected. The principle upon which an award is held to be a . bar, where the title to land is submitted, is, not that it can have the effect of conveying the land, but that the party is concluded, by his own agreement, from disputing the title.. The parties consent that the award shall be conclusive as to the right, and that is sufficient to bind them. (Doe v. Rosser, 3 East, 16.) In the case of Sellick v. Adams, (15 John. 197,) the arbitrators fixed the boundary between the land of the parties. It did not appear that a release was awarded, yet the Court held that the award would have been sufficient to enable the party to recover in ejectment; and in Shepard v. Ryers, (15 John. 497,) where the parties covenanted to execute releases according to the division to be made by the arbitrators, the doctrine is recognized, that though an award may not have the operation of conveying the land, it may estop a party from setting up his title. It has been adjudged, that when it is awarded that one party shall pay money or deliver up any particular thing in satisfaction of actions and suits, the Court will imply a release from the other party to be intended by the arbitrators. (Mawe v. Samuel, 2 Rol. Rep. 1. 12 Mod. 234. Caldwell on Arbi. 129.) It has also been held, that where any thing is awarded in satisfaction, there the award itself is a bar before it is performed. (Caldwell, 212. Carth. 378. Ld. Raym. 247. Salk. 69.) [651] But, on another ground, I think this objection cannot prevail. The right to dower, until it is legally assigned, is a right resting in action only. The widow may release her claim, but she cannot invest another person with the right to maintain an action for it. (1 Cruise’s Dig. 159, s. 2. 17 John. 168. 20 John. 413.) It seems to me of necessity to follow, that the award operates as .an actual extinguishment of the right resting in action, when it declares that the action itself shall not be prosecuted, and that the money is in lieu of the claim. I do not perceive that the award is void for uncertainty. It is explicit as to the payment of the money. As to the security intended to ensure the regular yearly payments,-there is some obscurity; jret it is sufficiently plain to show what the arbitrators intended the demandant should rely on. They considered the money retained by the defendants as constituting her security. Whether that was adequate, or whether it could, in fact, be resorted to by the demandant, in case of a default, is not the question. If they misjudged on this point, it cannot affect the award. It was submitted to them to point out the security, in their judgment, deemed sufficient. This has been done; and the demandant cannot now object to it. It is also urged, that the award is void, because it purports to bind persons strangers to the submission. It is undoubtedly void so far as it requires the defendants to pay; but granting this, it does not affect its validity as to Alexander Cox. The award is, that Cox, or one of the defendants, or either of them, shall pay. It is within the rule recognized in Martin and others v. Williams. It is also objected, that the arbitrators had no power to award as to costs. If that be granted, it cannot affect the residue of the award; for it is not connected with, but a distinct question from the one, whether the right of dower is barred. It may, too, be rejected as surplusage; for the submission provides, that Alexander Cox shall pay all costs. It was evidently not intended that the costs should tie under the control of the arbitrators. If, however, nothing had been said respecting costs in the submission, it was a power [652] necessarily incident to the authority of the arbitrators, ft was so decided in Strong v. Ferguson, (14 John. 161.) Every valid award must be final, so as to put an end to future litigation. Here it is provided, that on the neglect or refusal to pay, the demandant may enter, as if the award had never existed. , This provision is clearly bad. The first part of the award is final, for it awards the sum of money to be paid, and describes the security for performance. The latter part is repugnant to the former, and must be rejected ; but the former part is valid. The rule is, that when there is any contradiction in the wording of an award, so that one part is irreconcileable with another, the first part shall prevail and the latter be rejected. (3 Bulst. 62. Pop. 15, 16. Caldwell, 130. Kyd, 216, 217.) On the whole, I am of opinion that judgment on the demurrer be entered for the defendants. Judgment for the tenants.