Opinion
(December Term, 1860.)
1. Where an action of trespass, q. c. f., was referred to arbitrators, and they found the title to the locus in quo in the plaintiff, and assessed damages, it was held a sufficient finding, and that it was not necessary for them to fix the boundaries between the parties.
2. Where a suit was referred to arbitrators, and they awarded damages and costs to the plaintiff, this was held to include a finding of all issues in his favor.
(154) TRESPASS quare clausum fregit, brought to Spring Term, 1860, of MARTIN.
The following pleas were entered: "General issue, license, accord and satisfaction, and statute of limitations." At the same term the following entry was made on the docket: "Referred to arbitration, order of survey, each party to choose his own surveyor, or to unite upon one, at their election." The arbitrators were selected, and at the same term the following notice issued to them:
"To Ameleck C. Williams and William R. Brown, Greeting:
"Ordered that the three above causes be referred to you with an umpire to be chosen by you, if necessary, to hear and decide all matters in controversy therein, and your award shall be a rule of court, and the parties bind themselves not to revoke this reference.
"Witness, W. W. Anderson, clerk of our said court at office, in Williamston, on the last Monday of February, 1860.
W. W. ANDREWS, C. S.C."
There were on the docket, besides this one, two other cases, in which the present plaintiff was defendant, and the present defendants were plaintiffs, and these are the cases included in the reference. They are designated in the award as cases Nos. 1 and 2, and were also actions of trespass, involving the title to the same land as the present suit. The following is the award as returned to this Court:
"The undersigned referees, in obedience to the above order of the court, met on Monday, 20 August, 1860, to hear and determine the above causes referred to us, and all the above causes were continued over until Tuesday morning, 9 o'clock, on affidavit of Henry Mitchell. On Tuesday morning, 9 o'clock, we met upon an island, called High Island, and proceeded to hear and determine the above causes referred, when both parties announced themselves as ready for trial, and after a patient and thorough investigation of the title, and evidence on both sides, we, referees, are of opinion, and so adjudge and award, that the plaintiffs, in causes No. 1 and No. 2, are not entitled to any damage, and (155) that the land in question, from our best judgment, is the property and estate of Martin B. Ballard, and that the boundary of Briery Branch, beginning at the road, runs down said branch to a gum and cypress, and then down to and around a high island at the lower end of Stephens' hole, to a cypress stump on a drain, standing about ten or twelve feet from the creek, which is shown to be the corner of the Whitley and Monk land. In No. 3, we are of opinion that the plaintiff, Martin B. Ballard, is entitled to recover of the defendants, Waldo and Mitchell, the sum of five hundred and seventy-seven dollars and fifty cents ($577.50); and that the said Waldo and Mitchell pay the costs of the above referred suits.
"We further certify, that before the trial of the above causes, we, the referees, selected by consent of all parties, Shepherd R. Spruill as umpire, who acted with us in the investigation of the same. All of which is respectfully submitted. Signed by the arbitrators and the umpire."
The award was returned to fall term, 1860, Heath, J., presiding, and plaintiff moved for judgment pursuant to the award. Defendants' counsel resisted the motion, and filed exceptions to the award, of which the following only are necessary to be set out:
"6. The award is not full; it does not cover all the matters in controversy; especially, it does not determine the boundaries of the lands of plaintiff and defendants, nor fix the boundaries between the parties."
"7. The award does not pass on all the issues in the cause between the parties."
The court, upon consideration of the premises, confirmed the award in Ballard v. Waldo, the award as to the other two cases having been set aside by consent of plaintiff, on motion of defendant.
Judgment for plaintiff. Appeal by defendants.
Winston, Jr., for plaintiff.
Rodman for defendants.
Most of the objections to the award made in the (156) court below were addressed to the discretion of the judge presiding in that court, and are admitted by the counsel not to be the subject of review in this Court. The only exceptions to which our attention has been called in the argument here are said to be apparent upon the award itself, considered in connection with the manner and terms of the reference. It is contended for the defendants that the reference, having been made of a cause pending in court and by a rule of that court, the award does of all the matters which were thus referred, and that it is not responsive to all the issues made by the pleadings. The argument fails, as we think, upon both the points to which the exception relates.
The counsel insists that as the reference embraced "all matters in controversy" in this and two other suits in which the present plaintiff was defendant and the present defendants were plaintiffs, the arbitrators were bound to determine by their award the boundaries of the lands of the parties and to fix the dividing line between them. The action in the case before us is the only one necessary for us to consider, as the other two have been disposed of in the court below. It was an action of trespass quare clausum fregit to which the defendants pleaded the general issue of not guilty, license, accord and satisfaction, and the statute of limitations. The submission to arbitration being by a rule of court, "embraced the matter and that only which the pleadings of the parties brought into contestation before the court," as was expressly said in Hardin v. Beaty, 20 N.C. 516. The land upon which the trespass was alleged to have been committed was necessarily described in the plaintiff's declaration, and as the verdict of a jury in favor of the plaintiff need not have set out the boundaries of the land, nor have fixed the dividing line between the parties, neither was it necessary for the award of the arbitrators to have done so. Here, however, the (157) arbitrators seem to have gone further than was necessary and to have done everything for which the defendants have contended.
The other ground of exception that the arbitrators have not disposed of all the issues raised by the pleadings is equally untenable. The award, after finding that the title of the land, which was a matter of dispute in all the three cases, was in the plaintiff in the present suit, proceeds to assess the amount of damages to which he is entitled and directs the defendant to pay them, together with all the costs. This is, in legal effect, the same as the verdict of a jury, finding all the issues in favor of the plaintiff and thereupon assessing the amount of his damages. In Carter v. Sams, 20 N.C. 321, it was said that the Court will always intend everything in favor of an award, and will give such a construction to it that it may be supported, if possible. There, the action was trespass on the case for a malicious prosecution, to which the defendant pleaded, "Not guilty." It was referred by a rule of court to arbitration, and the referees returned an award, stating that "we agree that the defendant pay all costs and assess the plaintiff's damages to one hundred dollars." The Court held the ward to be sufficient, and that it meant that the defendant was awarded to pay to the plaintiff one hundred dollars, and also his costs expended in the cause referred. In that case, there was no direct finding on the issue "not guilty," but it was taken to be included in the award which assessed damages for the plaintiff. Upon the same principle, the award of damages and costs to the plaintiff in the present case must be held to include a finding of all the issues in his favor, and of course, against the defendant.
PER CURIAM. Affirmed.
Cited: Millinery Co. v. Ins. Co., 160 N.C. 139.
(158)