Akely v. Akely

The opinion of the court was delivered by Redfield, J. In regard to many points, insisted upon in argument on the part of the defendant, we have not felt much doubt. 1. We have no doubt that the submission of all matters of difference between the parties was intended to include the disposition of the title to this very land. 2. We believe that question was litigated before the arbitrators. 3. We have no doubt the award refers to this land, and no other. 2. There is no doubt, that, according to the practice of the courts of chancery, the disposition of all bill's for the specific performance of contracts is, to some extent,, discretionary with the chancellor. If tire contract is imperfect, or unequal, or if, from any other cause, the carrying it into effect would not subserve the fullest ends of justice, a decree will be refused. And in this case, no doubt, if we were casting about for some plausible excuse for dismissing the bill, we might seize upon some possible uncertainty — 456 — in the award, and so might we in every case of an award made by unprofessional hands. But we do not think there is here any possible necessity of dismissing the bill, for any uncertainty in the award ; that is, we do not think the uncertainty is such as to avoid the award. The degree of uncertainty, to avoid an award of arbitrators, should be such as would avoid any other contract; such as Would leave the meaning of the arbitrators wholly in doubt. There is no pretence of any such uncertainty here. The most that could be said here is, that, if the award were a plea in bar, very likely it might be deficient in certainty on a special demurrer. But the award here is as certain, as if it had referred to the deed of this very land, — or nearly so, upon the testimony, — for there is no other land, attempted, to be conveyed, to which it could be referred. 3. The force of the argument, in regard to the award being final, I do not fully comprehend, — unless by the finality of an award, is meant, that the award must absolutely put an end to all controversy between the parties, and hence this suit is proof positive of the want of the proper degree of finality. ' Such a rule would render awards upon all subjects of little avail. But this is not the rule. All that is meant by the requisite degree of finality is, that all which is submitted shall be decided, and not be left to depend upon some after determination to be made by the parties, or by other arbitrators, — so that one looking into the award would say, “ this ends the business,” and not, “this settles nothing.” Here, 1, The award disposes of the whole matter in controversy; 2, It does it in a manner sufficiently intelligible, as has been already shown. We come, then, to that part of the case upon which the most care has been bestowed. The only question, which has weighed much with the court, is in regard to the propriety of requiring the court of chancery to decree a specific performance of an award of arbitrators, in regard to the conveyance of real estate.' 1. We should require them to make such a decree as we should make, had we their powers. 2. We see no good reason why a conveyance should not be decreed in this case, if in any case. Indeed, the argument on the part of the defendant has gone mainly upon the ground, that, in the case of a naked award of conveyances of real estate, where the defendant has done nothing, nor induced the orator to do any thing, in confirma — 457 — tion of the award, it is not within any known practice of a court of equity to decree the execution of the conveyance, according to the award. We do not see upon what other ground a decree could be resisted in the present case. We have examined this argument, and the authority upon which it is founded, with labor and patience, and with a sincere desire to come at truth, and the result has been a full conviction of the unsoundness, both of the argument, and the authority. The authorities are all somewhat early, and are all based upon the principle of feudal law, that the title to real estate cannot pass by award of arbitrators. This principle is recognized in all the early books, and in all history of those times. It is laid down by Mr.- Justice Blackstone, 3 Comm. 16, that “the right of real property cannot pass by a mere award,” citing 1 Roll, a b, 242, 1 Ld. Raym. 115, — which is the case of Marks v. Marriot, in which Treby, Ch. J. C. B., says, “Things in the realty could be submitted, as well as things in the personalty, but they could not be recovered on the award.” This is either abstruse, or exceedingly insipid. If it means that the title does not pass, it might have been more clearly expressed; if it only import that the award will be of no force, the first part of the sentence would seem not a little sage, and almost worthy of Sancho Panza in his island of Barataría. But Justice Blackstone adds, “ Yet doubtless an arbitrator may noio award a conveyance or release of land, and it will be a breach of the arbitration bond to refuse compliance.” In a note toPetersdorff’s Abridgment, which is in general a book of great thoroughness and accuracy, it is said, “ with respect to real property, notwithstanding prior adjudications to the contrary, — Keb. 996, 984; Bro., Abatement, pl. 15; Fitz., Abatement, pl. 16; Marks v. Marriot, 1 Ld. Raym. 115, — it is now clearly settled that the same rule obtains, [both as to real and personal estate,] and that, where parties may by their own act transfer real property, or exercise any act of ownership with respect to it, they may refer any dispute concerning it to the decision of a third person, who may order the same acts to be done, which the parties themselves might have effected by their own agreement; therefore, when it is stated that an arbitrator cannot make an award of freehold, it must be un — 458 — derstood to mean no more, than that land cannot be transferred by the mere words of an award.” 2 Petersdorff’s Abr. 99-100 (n.) This I take to be the true state of the English law upon this subject at the present time. In Morris v. Rosser, 3 East 15, it is expressly decided, that a prior award concerning land, between the same parties, was conclusive of the title in an action of ejectment. And this decision was made, notwithstanding the old cases cited by counsel, (Abbott, afterwardsCLord Tenterden,) in which it was held that the title of land could not be determined by submission and award of arbitrators. The same rule is recognized in numerous American cases. Shelton v. Alcox, 11 Conn. 240. Jones v. Boston Mill Co., 6 Pick. 148. S. C., 4 Ib. 507. 15 Johns. 197. 5 Cow. 183. Corey v. Wilcox, 6 N. H. Rep. 177. In regard to the practice of the court of chancery in decreeing specific performance of such awards as affected the title to real estate, it is obvious, that, for a very long time, the right to do so has been fully recognized and acted upon. In Norton v. Mascall, 2 Vern. 24, although the award is treated as having been originally void, yet the simple fact of the orator’s having sold land to raise money to perform rt on his part is seized hold of as a part performance, and acquiescence in, and ratification of the award by the parties, to enable the court to decree a specific performance. Indeed, all the cases cited for the defendant assume the point, that, if the parties have ratified the award, by promising to perform it after it was made known to them, or by any act equivalent to it, the court of -chancery will decree conveyances according to the award. Milnes v. Gery, 14 Ves. 400, was a bill to carry into effect a submission, where there had been no award, because the two arbitrators did not agree, and could not choose an umpire; and the bill was dismissed, because there had been no award ; and no intimation was given of any supposed defect in the power of the court to decree conveyance of real estate according to an award, in a case where one had been properly made. Blundell v. Brettargh, 17 Ves. 234-241, is a case similar to the last, and' here the Lord Chancellor fully recognizes the general powers of the court to decree specific performance of an award for the conveyance of land ; and that acquiescence, or confirmation, is only necessary where the award is defective. Hall v. Hardy, 3 P. Wms. 187, is a full au — 459 — tfrority for the decree here asked for, except that in that case the money, which had been decreed to be paid for the conveyance, had been paid and accepted by the defendant. This is no such part performance as would amount to the ratification of a void contract, so as to justify a court of equity in decreeing specific performance;— certainly such is not the rule in regard to mere oral contracts for the conveyance of land, which are not a ground of action under the statute of frauds. The case of Jones v. Boston Mill Co., supra, is an elaborate and well digested case, and fully in point; and although coming from a quarter where equity cases sometimes meet with a hasty determination, we think it entitled to the highest consideration, as putting this subject on its true grounds. From all our examination of this subject we feel justified in making the following inferences. 1. What is said in the books about the necessity of such an award being ratified by the parties, in order to justify the courts of equity in decreeing a specific performance, is based solely upon the feudal maxim, that such awards were in themselves void; and that, when the reason for that rule ceased, ( which was to prevent collusive conveyances by the tenants, to the detriment of the rights of the landlord,) the rule also ceased. 2. That at present, both in this country and in England, an award of arbitrators in writing and under seal, made in pursuance of a submission under seal, is itself a portion of the contract between the parties, and as much binding in regard to the title of real estate, unless in some way defective, as any other contract under seal, made in the same terms, and signed and sealed by the parties. 3. That the ratification of such an award by the parties is now of no avail, unless to cure some formal defect, or as affording an additional reason why the court should decree a specific performance. But such reason would be addressed solely to the discretion of the court, where all such matters ultimately rest. 4. That specific performance may be decreed in this case, as well as in any other case of a contract under seal, embracing the same subject matter, and no more definite than this award. In support of these propositions I might further cite 2 Story’s Eq. 680, and note; McNeil v. Magee, 5 Mason 244 ; 2 Eq. Dig. 34, pl. 2; and Bouck v. Wilbur, 4 Johns. Ch. R. 405. In the last — 460 — case the learned Chancellor held, not only that the party, in whose favor a conveyance of real estate had been awarded, was entitled to a decree of specific performance, but that a court of chancery would correct any informality in the award, and then decree specific performance, — which is going beyond what is asked in the present case. The decree of the chancellor is reversed, and the case is remanded with a proper mandate allowing a decree for the orator.