Opinion
(December Term, 1847.)
1. In an action of ejectment, where an arbitration had been agreed upon, and the award was not made until after the death of one of the lessors of the plaintiff: Held, that the award was void.
2. Though John Den by fiction of law may be the ostensible plaintiff in an action of ejectment, the Court will not suffer such a fiction to work an injury to the parties really interested.
APPEAL from the Superior Court of Law of WAYNE, at Fall Term, 1847, Manly, J., presiding.
Mordecai and Bryan for plaintiffs.
(165) Strange for defendant.
This was an action of ejectment, in which the following facts appeared:
The declaration contains three several demises, the first (164) from W. A. Whitfield, the second from James Herring, and the third from Buckner Hill. The defendants entered into the common rule, and pleaded not guilty. At Fall Term, 1846, the following order of reference was made: "This case is referred to James Griswold and Nicholson Washington, with leave to choose an umpire in case they disagree, and their award or that of their umpire to be a judgment of this court." Between the referring of the case and the making of the award James Herring, the lessor of the plaintiff in the second demise, died. At Fall Term, 1847, the arbitrators returned their award. A motion was made on the part of the defendant for a judgment on the award, and the plaintiffs moved to set it aside. Both motions were overruled by the court, and the defendant appealed.
We concur with his Honor in his opinion.
The arbitrators decide, upon a careful examination of the evidence, that W. A. Whitfield, the lessor of the plaintiff, in purchasing the land at the sheriff's sale, made under an execution against the defendant, Hatch Whitfield, issued on a judgment obtained by him against said Hatch, had been guilty of a fraud, and that the suit should be dismissed at the costs of the lessors of the plaintiff. In effect it is an award that a judgment of nonsuit should be entered by the court against the lessors of the plaintiff. This is a definite and distinct judgment pronounced by the arbitrators upon the case as submitted to them, and was certain and conclusive so far as this action, was concerned. In Blanchard v. Lilly and Rex v. Blanchard, 9 East., an award directed that certain actions should be discontinued, and each party should pay his own costs. It was decided that the award was final and good, it being in effect an award of a stet ante-processus. Hartwell v. Hill, Forrest, 73. There is, however, a fatal objection to the Court giving a judgment upon this part of the award. The arbitrators state that at the time they made the award James Herring was dead. His death was a revocation of the submission, so far as he was concerned. It is answered, however, by the defendant that John Doe is, in law, the plaintiff, and as he never dies, the trial of an ejectment is not delayed nor the case abated by the death of his lessor. This, in practice, is true. The action of ejectment is pretty much a fiction, resorted to by the court to try the right of possession to land, and John Doe is a fictitious person. But the courts will never suffer their own fictions to work a positive wrong. The question is not, here, as to the abatement of the suit or of the demise from James Herring, but it is of the revocation of a power given by him to certain persons to try a certain cause; and it cannot admit of a doubt that the power of an arbitrator is determined by the death of the party to the submission, or any one of them. 2 Tidd Pr., 877; 2 Chit. Pr., 432. (167) The Court, therefore, cannot give judgment for the defendant upon this portion of the award. Neither can the Court give judgment upon that portion which, as the arbitrators tell us, was the result of an equitable view of the case. It is not within this submission. When parties intend to submit all disputes the terms of the reference ought to be "of all matters in difference between the parties," and when the difference is intended to be of the matter embraced in a particular case, it should be "of all matters in difference in the cause," or words to that effect. Smith v. Muller, 3 Term, 624. Of the latter character is the order of reference in this case; this case is referred, etc. The case is one of ejectment, and there is nothing in the order looking out of the case. With a view to settle all the differences between the parties, the arbitrators have assumed the jurisdiction of the Court of Equity, settled their accounts and adjusted balances, and ordered and directed the payment of the money adjudged by them. This was not within the scope of their authority, as exhibited in the order of reference. If there was any other reference, the parties must enforce the award by some appropriate action in the proper court.
The Court, therefore, cannot grant to the defendant any judgment upon the award, but, in the language of his Honor below, "leaves the parties to such remedies as they may respectively have thereon."
We see no error in the interlocutory judgment of the court below.
PER CURIAM. Ordered accordingly.
(168)