McCracken v. Clarke

The opinion of the court was delivered by Church, J. The only question presented by the record is the validity of the award. The action was ejectment. It had been pending over two years; was at issue, and on the trial list. The parties then by an agreement, entitled in the cause and the court, submit “ all matters in variance in this suit,” to referees named; and stipulate that their award shall be “ final and conclusive on each party;” and shall “be filed in'the case and judgment entered thereon by the prothonotary of said court.” The referees made and filed their award in these words: “ That the land in dispute be equally divided by a line through the centre, giving each party one-half of the land in dispute; and each party to have their own fences ; and each party to pay their own witnesses; each to pay the one-half of the costs of arbitration, and each oue-half of the expenses incurred in court.” Exceptions were filed by defendant, and the court set aside the award. The language “final and conclusive,” used in a submission in a [501] pending cause, is subject to the implied condition that the award be made according to it. Certainty and finality are two essential requisites to constitute a good award: Grier et. al. v. Grier, 1 Dall. 173; Johnson v. Brackbill, 1 Penn. Rep. 364. And if the submission requires or even authorizes judgment to be entered on the award, the latter must be so definite and of such character, that it can be enforced by execution. Referees are restrained when not expressly empowered by the submission from doing what a jury, may not do: Coleman v. Lukens, 4 Whart. 347. No other award comes up to the submission; none is authorized by it. Here there is neither certainty nor finality. It cannot be enforced by execution. True, the land is by the award to be equally divided between the parties, and hence it may be a substantial finding for plaintiff pro tanto. The dividing line is to be through the centre; but where is it to begin, and what direction run ? Which half is for plaintiff, and which for defendant ? Is it to be divided into squares or triangles ? How can the sheriff deliver possession of the land ? How of the fences distinct from the land ? And how is the ownership of the fences to be determined ? The action was to recover the land, and necessarily the fences upon it. The submission was the method adopted to try the right, and determine and define its extent and locality. The award has failed to effect this object. It is not therefore within the submission. And hence, according to the legal principles already stated, the court below committed no error in setting aside this award. It is urged, however, in behalf of plaintiff, that the learned judge of the Common Pleas erred in the reasons given by him for the judgment entered. This does not distinctly appear of record. And if it did so, that could not avail plaintiff. The reasons given by the Common Pleas for its judgments are only arguments. They are never, in cases like this, proper subjects of review here, provided the conclusion or sum total be right. But this record discloses only the naked judgment thus: “ The court set aside the award upon the exceptions filed;” while the opinion of the court is expressly limited to the first of the five exceptions; not because the award is set aside upon it, but the learned judge says, because it may be supposed contrary to adjudicated authority; hence he files the opinion merely in explanation of the specified rule of court. The second and fifth exceptions are sufficient to set aside the award. Judgment affirmed.