Robertson vs. M'Niel, 12 Wend. 578

By the Court, Sutherland, J. The defendant contends, 1. That by the terms of the submission, the arbitrators had authority merely to ascertain where the original tier line was, and not to establish a new line, that the award was therefore void as going beyond the submission ; 2. That the powers of the arbitrators were revoked before they made their award and that it was void on that ground ; and, 3. That if the award is not void, it gives no title to land, and will not enable the plaintiff to recover in ejectment.

As I understand the award, as explained by the testimony of White, one of the arbitrators, it does establish the original tier line, as found by the arbitrators, as the division line between the parties. The obvious meaning and construction of his testimony is, that the corner set up by them between lots 11 and 12 was at the point where the tier line, according to their survey, struck those lots. This parol testimony in explanation of the award was not objected to, and it was clearly competent for the purpose of showing its actual location and operation.

I do not understand the defendant to have objected to the award upon the trial, specifically upon the ground that it was not warranted by the submission in this respect.

After the submission had been given in evidence and read, the counsel for the defendant objected to it, on the ground that it did not authorize or empower the arbitrators to establish any division line between the said lots other than the true original tier line; that the question, therefore, notwithstanding said submission, would be, where in fact was the true tier line; and this parol submission was therefore immaterial : obviously contending that the decision of the arbitrators upon that question was not conclusive, but that the question was still open, and that they were at liberty to show that their fence stood upon the true tier line; that the submission and award therefore were immaterial.

That the judge understood this to be the scope and bearing of the objection, is obvious from his decision upon it, which was, that the award was as decisive as a verdict between the parties.

When the award itself was given in evidence, it was objected to by the defendant, on the ground that there was no evidence of any submission which authorised the arbitrators to make such award-This was before the testimony of White was given, explaining and locating the award; and, upon the face of the award itself there was nothing to show whether it established the old tier line or a new line as a division between the parties.

It simply gave a place of beginning, and then certain courses and distances, as the means of ascertaining the corner established by them; but whether that corner was upon the old tier Une or not, did not appear until the parol testimony was subsequently given. The objection, I have no doubt, was this : The award, in speaking of the submission, calls it a certain bond of arbitration : and the award wTas objected to, because no such bond was given in evidence.

It is now one of the defendant’s written points, “That the arbitrators had no au-' thority to make such an award, because the submission, which they say in their award was their authority for making it, was not given in evidence. No arbitration bond was proved, or in any manner given in evidence. ” The objection therefore to the award, that it was not in pursuance of the submission, is, I think, unfounded. The powers of the arbitrators were not revoked. The submission, it will be recollected, was by the plaintiff, Robertson, on one side and by Archibald M’Niel the defendant, and Daniel M’Niel, on the other. Mr.

Kyd says, where the submission is by one on one side, and two on the other, one of the two cannot revoke without the other, for the authority being jointly given, it must be jointly taken away. Kyd on Awards, SO. 2 Keb. 64, 79. The offer here was to prove that the defendant, Archibald M’Niel, declared to the arbitrators, after they had traced the line, but before they had made their award, that he would not be bound by their award.

It may admit of question whether, if he had been the sole party, this loose declaration would amount to a revocation ; but whether it would or would not, it is enough that he alone could not' revoke. Daniel M’Niel has an equal interest in the matter with himself; and having jointly conferred the power, one cannot recall it. The submission and award in this case related merely to a question of location or boundary, and did not extend to the title. The title of the plaintiff to lot No. 12, and of the defendant to lot No. 11, was conceded. There never was any dispute upon that point.

The only question between the parties was as to the division line between those lots, and that fact, they agreed, should be decided by arbitrators. It had no bearing whatever upon the abstract question of title, no more than the testimony of a witness showing the practical location of a deed, according to its courses and distances. It is well settled, that upon the strength of such an award, the party in whose favor it is made, may recover in an action of ejectment. The opposite party is held concluded by his own agreement from disputing the title of the plaintiff.

This has been expressly decided in a number of cases. 3 East, 15. 2 Caines, 198. 4 Dall. 120. 15 Johns. R. 197. 497. 2 Cowen, 650. 5 Cowen, 383. 9 Johns. R. 43. Kyd on Awards, 62, note d. An award has not the operation of a conveyance, and is as effectual when by parol as under seal. In several of the preceding cases the submission and award were by parol. An award is conclusive between the parties in relation to the subject matter. It cannot be set aside, except for partiality or corruption, and can in no case be collaterally impeached. 9 Johns. R. 212. 5 Cowen, 425. 5 Wendell, 520, &c.

The offer of the defendant, to show that the line established by the arbitration was not the true tier line, was properly overruled. That was the only matter, according to the defendant’s construction of the submission, which was submitted to their determination, and which it was the object of the parties to have definitively settled in that manner. The decision of the arbitrators was conclusive. New trial denied.