GRATZ against GRATZ, 4 Rawle 411

The opinion of the court was delivered by Kennedy, J. The first and second errors consist of exceptions to the opinion of the court below, in overruling testimony offered by the plaintiff in error, who was also the plaintiff below.

The first is, that the court prevented the plaintiff from showing that in making a partition of the property in question, into two parts, one whereof to contain one equal third part, and the other two equal third parts of the whole, that the parcels of the property numbered 2, 3, 4 and 5, upon the ground plot exhibited, would have been more suitable for making up the division, which was to contain two equal third parts of the whole, than any other of the six numbers which embraced the whole of it, according to the plot.

I cannot say that 1 perceive any error in rejecting this evidence ; for if the parties, as was alleged by the defendant, had by agreement between them, made a partition of the property, by which other numbers than those of 2, 3, 4 and 5, were associated for the purpose of forming the division which was to contain two equal third parts of the whole of it I do not think it would have been sufficient to have set such partition aside, to have shown that in the opinion of witnesses, a more equal and convenient partition of the property might have been made, by joining Nos. 2, 3, 4 and 5, to make up the allotment of two-thirds.

And unless the testimony so rejected were offered for this purpose, I cannot perceive that it had any pertinency to the issue trying, and believing it altogether insufficient to effect such an object, I am therefore brought to the conclusion that it was properly refused.

With respect to the second error, as the sundry documents, letters and other papers mentioned in the assignment of it, which are alleged by the plaintiff’s counsel to have been offered by them as rebutting evidence to the jury, and to have been rejected by the court, do not appear to have been brought up with the record, or to be connected with it in any way, we cannot see it, and have no means of knowing what it was, whether it had any bearing upon or relevancy to the issue or not; and how is it possible for us then to determine upon its admissibility ?

But, it is said, that these letters, documents and other papers rejected by the court to be received as evidence, are stated upon the record to be to and from the parties in the suit, touching the premises in question and matters in dispute; and that similar letters, documents and other papers as to dates, were previously read by the defendant’s counsel without objection by the plaintiff’s, and without its having been adverted to by the judge that they were dated after the suit brought, and as it was on account of their being dated after the commencement of the action that they were rejected, it was error in the judge to do so.

It would not be right to test the admissibility of evidence by the insufficiency of the reason assigned by the court below for rejecting it. A right judgment is not to be reversed on account of a wrong reason given for rendering it. What those letters and other papers given in evidence previously by the defendant were, does not appear, more than those which were offered by the plaintiff and rejected by the court. But, admitting that they were letters, &c. “ touching the premises in question and matters in dispute,” it does not follow that they were in any possible view material to the issue.

What does the term * touching’ mean, as used here, upon which great stress has been laid 1 — simply ‘ mentioning.” The court below, then, refused to receive in evidence letters, &c. mentioning the premises in question and matters in dispute.

Now, nothing can be more easy than to imagine, that writings might have been made and passed between the parties, both before and after the commencement of the action, mentioning the premises in question and matters in dispute, and yet neither expressly nor impliedly admitting or denying the fact of a partition of the property having been made, which is the great point in issue here: but unless they tended to establish the affirmative or negative of this fact, it is not easy to conceive how they could have been relevant.

It is also alleged that as the defendant made no objection to the plaintiff’s reading in evidence those documents which were rejected by the court, the court had no right to prevent the plaintiff from doing so after having permitted the defendant to give testimony of somewhat similar character. This surely cannot be a sufficient reason to justify the court in consuming time unnecessarily with the trial of a cause, thereby subjecting the county to additional and unnecessary expense, as well as delaying the trial of other causes, which is a still greater evil.

It is doubtless the bounden duty of the court, as soon, and as often as it shall discover clearly that evidence which is about to be given on the trial of a cause, no matter at what stage of it, is irrelevant and has no bearing whatever upon the issue, to interfere and reject it. And as it does not appear here that the testimony rejected could have been in any respect material to the issue, we cannot say that the court erred in refusing to receive if. Eleven other errors have been assigned, consisting of exceptions to the charge of the court to the jury.

They however all relate to the opinion of the court on the effect of the award of the arbitrators made on the seventeeth of February, 1830, and an examination into the nature of this award, and the correctness of the opinion of the court below in respect to it, will dispose of the main question in the cause, and render a particular notice of these eleven errors in detail unnecessary.

His Honour the judge below told the jury; “ My opinion is that on the agreement of the eighth of June, 1827, the documents and general conduct of the parties, these gentlemen (the arbitrators) had jurisdiction to do what they did, to make the award that this partition by Michael Balter should be carried into effect.” And again he repeats to them, “ My opinion is, that this matter, whether the partition made by Michael Baker was valid or not, was within the jurisdiction of the referees, and their decision is binding and conclusive between the parties.

My opinion is founded on the award, and that it is binding and conclusive.” And in the conclusion he adds, “For the matter of the award, on which I have fully charged, is sufficient to enable you to make up a verdict, which I advise you to find for the defendant.” The submission of the eighth of June, 1827, to Charles Chauncey and Horace Binney, esquires, being of all matters in variance between the parties, and having been reduced to writing and signed by them, would doubtless have been sufficient, had the partition of the property in question been then one of the matters in variance, to have authorised these gentlemen to have awarded a partition of it, and to have directed in what manner it should be executed ; for the terms of the submission are sufficiently comprehensive to embrace any matter then in dispute between the parties in respect to real, as well as personal estate.

Marks v. Marriot, 1 Ld. Raym. 114; Munro v. Alaire, 2 Caine’s Rep. 327; Sellick v. Adams, 15 Johnson’s Rep. 199. Byers v. Van Deuson, 5 Wend. 268. But the arbitrators by their award of the seventeenth of February, 1830, have not directed a partition of the property to be made in any particular manner.

Their award is in these words, “ We are of opinion and do award that the partition of the High street and Seventh street property, agreed between you according to the plan of Michael Baker, shall be carried into eifect.” It is obvious from the terms of the award, that the gentlemen arbitrators, did not consider it as submitted to them to decide and direct in what manner, and in what proportions the partition of the property should be made between the parties, but merely to determine as they stated in their note to Mr.

Hyman Gratz of the twelfth of May, 1830, whether an agreement made by the parties in the presence of the arbitrators, as they allege, in regard to the partition of the property, should be carried into effect or not. But as this agreement upon which the arbitrators acted, and which is made the foundation of the defendant’s defence, is admitted by him to have been made as late as the twelfth of February, 1830, long after the submission of the eighth of June, 1827, it or any matter in variance growing out of it between the parties, could not of course have been embraced within that submission.

The written instructions given to Mr. Baker, under which he made out bis plan of the property that is referred to in the award were not delivered to him before the tenth of February, 1830, and on the second day following that, he reported his plan, distinguishing it by six Nos. or parcels, and dividing the whole into three allotments.

Hence it is evident that the subject-matter of the award of the seventeenth of February, 1830, was not within the submission of the eighth of June, 1827, and if there were no other submission agreed on between the parties embracing it, this award would clearly be void for want of authority on the part of the arbitrators to make it. Plowd. 396. Dyer, 242. 1 Bac. Abr. tit. Arbitrament & Award, [E.] page 213. Huff v. Parker, cited 4 Dall. 285. 3 Yeates, 567. Gurman v. Hill, Aleyn, 26. Hooper v. Pierce, 12 Mod. 116. Anon. ibid. 8.

The submission of the eighth of June, 1827, being the only one that is pretended to have been in writing, and to have been signed by the parties, it necessarily follows, that if any submission were made, embracing the dispute between the parties in respect to the agreement said to have been made, by which they agreed to make a partition of the property in a particular way, according to a plan of Michael Baker, it must have been merely verbal. This agreement if made, was also verbal, and seems to have been denied by Hyman Gratz, in all his written communications anterior to the making of the award.

In his communication to Simon Gratz, on the fifteenth of February, 1830, he mentions it as a division. proposed, not agreed on, and as it would not make an equitable or equal division of the property according to its value, he therefore declines entering into the arrangement.

And again, in his written communication read to the arbitrators on the seventeenth of February, 1830, the same date of the award, after stating to those gentlemen that they had been called together by Simon Gratz, as he conjectured, to make some order for the deeds, in case they (the parties) had agreed on the division of the property, he says, “We have not agreed, nor can we agree; my note to Simon informed him of this.” This agreement for partition, however clearly and satisfactorily it might be established, being verbal and never reduced to writing, comes within the act of assembly against frauds and perjuries, and cannot pass the right which the one party had at the time of the agreement of division, to the other, in that part of the property, which by the agreement was allotted to be held in severally by the latter.

It has however been contended, that there was such a partial execution at least of this agreement of partition, as was sufficient to take it out of the act against frauds. If this be so, there was certainly no evidence given of it on the trial of the cause.

The acts of Hyman Gratz in employing and giving instructions to the scrivener to draw a deed of partition or other writings, deemed necessary for carrying the partition into effect, and in going upon the property with an artist, and measuring off and designating the lines of division acccording to the agreement, for the purpose of enabling the scrivener to draw the writings, and to describe the several allotments with precision and accuracy, cannot be considered of a character sufficient to take the case out of the act against frauds.

They were at most only preparatory to the execution or performance of the agreement for partition. Neither could Simon Gratz without the assent of Hyman Gratz, divest Hyman of his right to the property as a tenant in common with Simon, by his withdrawing from the possession of that part of it, which by the agreement, had it been carried into execution, would have fallen to Hyman, and at the same time declaring, that he took the exclusive possession of the residue, which he then bad, and that he intended to hold it in severalty according to the agreement of partition, which he alleged was made between them.

The assent of Hyman to the execution of the agreement, was just as necessary in order to render it effectual, as it was to the making of it to give it validity.

It has also been further contended, that as Simon Gratz has the legal title exclusively in himself to almost the whole of the property, and the right on the part of Hyman is merely equitable, being a trust resulting by operation of law, from the circumstance of its having been purchased by Simon with the partnership funds of himself and Hyman, he owning two-thirds and Hyman one-third thereof, Hyman has no such right or interest in the property as makes it necessary under the statute or act against frauds, to have an agreement in writing signed by him in order to render the partition effectual, and to transfer his right in that part of the property to Simon, which according to the agreement was to be Simon’s share of it.

The terms of the act against frauds 1 think are sufficient to embrace equitable interests in lands as well as legal.

The words are “ all leases, estates, interests of freehold, or term for years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized hy writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding; except, nevertheless, all leases not exceeding the term of three years, from the making thereof : and moreover, no leases, estates or interests either of freehold or term of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments shall at any time be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or act and operation of law.” The term “ interests” being used here without any other words to qualify or restrain its general and most extensive signification, I am unable to discover any good reason why it should not be considered and held to extend to equitable interests in lands as well as legal.

The equitable owner of lands lying in this state is generally deemed to all intents and purposes the legal owner of them, even as against the trustee himself, except in those cases where for the purpose of executing the trust, it may be necessary for the trustee to have possession and control of the estate.

As well might it be said that equitable interests or estates in land within the state are not embraced by our acts of assembly providing for the recording of deeds and conveyances made of and concerning them; and that the first vendee of an equitable estate in land for a valuable consideration, shall be preferred to a subsequent bona fide purchaser for a valuable consideration without notice, whether the first vendee have put his deed on record or not within the time prescribed by the act; for the rule on this subject, setting aside our recording acts, would be, qui prior est in tempore, potior est injure.

The late Mr. Justice Duncan, in Wither’s Appeal, 14 Serg. & Rawle, 193, says, “although the seventh

section of the statute of frauds (meaning the English statute) which enacts that all the declarations or confessions of trust or confidence of any lands, &c. shall be manifested and proved by some writing, is not incorporated into our law, yet in substance it is comprehended in the first

section of the act;” and then he recites what he considered the true reading of that

section thus, “ no interest in land, either in law or equity, shall pass by parol only, any consideration for making the agreement to the contrary notwithstanding, except for a term not exceeding three years; nor except by deed or note in writing signed by the party, or by the act and operation of law.” It is under the last clause and exception of this

section which 1 have recited literally above, that Hyman Gratz beeame invested with his right to the property, and would be permitted to show it by parol evidence in case it were denied. It arose and was created by the operation of the law upon the act of Simo?i Gratz in his employing the joint funds of himself and Hyman to pay for the property, and in taking the deed of conveyance for it, in his own name alone.

It is however, admitted, or at least not denied by the counsel for the defendant, that an agreement, in order to make it effectual, and pass the right or interest of the defendant in any part of the property in dispute, must be in writing and signed by him, otherwise it would come within the act of frauds.

Then I apprehend that unless the agreement of partition were sufficient to pass Simon’s interest to Hyman in that part of the property, which by the division agreed on was to belong thereafter to him in severalty, it would be equally insufficient to transfer Hyman’s interest to Simon in that portion of the properly, which by the agreement of partition was allotted to him; for it is a rule particularly applicable to agreements, where mutuality of concessions between the parties, form the whole and only consideration for making them, that there must be a complete reciprocity of obligation, benefit and effect arising from the agreement, according to the full extent of the intention of the parties, otherwise it will not be binding on either.

Indeed it is manifest, that unless this were so, one of the parties would often part with his right without receiving the quid pro quo intended, and expressly mentioned to be given him by the terms of the agreement.

It is still further argued, that as the binding efficacy of this agreement of partition, which is said to have been made, was submitted by mutual agreement of the parties to arbitrators as judges of their own choosing, who in deciding between them, were not tied down by the strict rules of law, and as these judges have decided that the partition of the property agreed between the parties according to the plan of Michael Baker, shall be carried into effect, they are both concluded by this judgment or award of the arbitrators, and cannot after it interpose the statute of frauds, or anything else, to defeat the specific execution of the agreement for partition.

This argument is may be observed, is predicated upon the assumption that this matter, upon which the arbitrators awarded, was submitted to them by the agreement of the parties, a fact which seems to be denied by the plaintiff, and therefore ought to have been left to the decision of the jury by the court below. The court however, conceived that it was embraced within the submission of the eighth of June, 1827, which was admitted by both parties to have been made, but did not, and in the very nature of things, as I have already shown, could not have embraced this matter.

The judge below, therefore, misdirected the jury in this particular. If there were no submission of this matter to the arbitrators, upon which they awarded, the award of course would be an absolute nullity, but if there were a submission of it, it must have been a verbal agreement of submission, as it is admitted that there never was a submission in writing, and signed by the parties, except the one of the eighth of June, 1827, which was altered in some respects on the fourteenth of May, 1828.

Now, as a submission is in the nature of an authority granted to the arbitrators, can that authority be deemed sufficient to authorise them to dispose of the interest of the parties, or of either of them, in real estate, consistently with the act against frauds, unless that authority, or in other words, the submission, be in writing ?

The words of the act, as we have already seen, are that no interests in lands shall at any time be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party assigning, &c. or their agents, thereto lawfully authorised by writing, or by act and operation of law. It cannot be pretended that the act of the arbitrators is the act of the law, and therefore taken out of the general provisions of the act by the exception contained in the last clause of the section.

Arbitrators act entirely under the authority, in such cases, that is given to them by the parties in the terms of the submission. Without this they cannot act at all; and if they do any act not authorised by the terms of the submission, it is clearly void.

Under this view of the act against frauds, I think that the arbitrators without a submission in writing from the parties, could neither make a partition of the property between the parties, nor yet award a partition of it to be made, so as to pass the interest of each party to the other in his respective share, as is done in partition by operation of law, or by act of the parties in executing mutual releases, or so as to conclude the parties from asserting their former rights and manner of holding the land.

The award of the arbitrators made under a verbal submission, cannot therefore, at it appears to me, be of greater force and efficacy, than a verbal agreement fairly made between the parties of the same purport. If one of the parties-should.refuse to comply with it, it may be a good cause for a suit, and that perhaps is the most that the other party can have for any actual loss sustained by a non-performance.

But taking it to be true that the award in this case was made under a submission mutually agreed to between the parties, it is not such an award as either party could maintain an action against the other on account of his not having complied with it. In 1 Bac. Abr. tit. Arbitrament and Award, [E] page 212, 13, it is laid down, that “ as an award is a judgment, and can only be expounded by itself, without the aid of an averment of matter dehors to explain the meaning of the arbitrators, it is necessary that it should appear on the face of it.” This principle is also sustained in Dyer, 242, b.

And in Bac. again, at page 218 it is repeated, that an award is in the nature of a judgment, it ought to be wholly decisive ; for if it doth not determine the matter, it becomes the cause of a new controversy ; therefore, if the arbitrators award a bond for quiet enjoyment of lands, without appointing a certain sum, this is a void award, and the party is not obliged to give bond to the value of the land, as he would be in case he had made a covenant to enter into such a bond, for then the sense of the award must be supplied by averment. Samon’s Case, 5 Co. 78. S. C. Cro. Eliz. 432.

So if the arbitrators award that one party shall give security to the other for the payment of sixteen pounds, this is not a good award, because it does not appear what security, whether bond or otherwise. Thinne v. Rigby, Cro. Jac. 314. S. C. Jenk. 340. Tipping v. Smith, 2 Strang. 1024. And although awards are now considered with greater latitude and less strictness than they were formerly, yet it is still indispensably necessary that they should appear upon their face to be jfinal and certain.

This certainty may be judged of according to a common intent, and such as is consistent with fair and probable presumption. Hawkins v. Colclough, 1 Burr. 277. The award in the present case appears to be defective in regard to certainty. It directs, “ that the partition of the High street and Seventh street property agreed between the parties according to the plan of Michael Baker shall be carried into effect.” The description of the property seems to be entirely too vague and uncertain, unless the reference to Mr. Baker’s plan should help it, which possibly may be the case.

This, however, is not the principal feature of uncertainty in it; for the partition is directed to be made in conformity to this plan of Mr. Baker, and according to an agreement made between the parties, which agreement is not found or set out by the arbitrators.

The plaintiff denies that he ever made any agreement of partition; and without it were in writing and referred to or recited in the award, so that it could be identified; or the arbitrators had reported what the terms of the agreement were, by incorporating the whole of it into their award, how is it possible to say in what manner the partition awarded by them was intended to be made ?

It does not appear in what proportions the property was intended to be divided and allotted to the parlies respectively, whether an equal moiety of it to each, or two-thirds thereof to one, and one-third to the other; or whether in either of these proportions, is altogether uncertain, and cannot be ascertained except by averments and the introduction of parol evidence, which is not at all admissible. Neither is it possible to discover from the award what the property consisted of, and what part of it the plaintiff or defendant was to have for his share.

It contains no instructions that are intelligible, for making a partition, unless to the arbitrators and the parties themselves. If a partition were to be made of the property, it might be difficult, if not impossible, to decide whether it was in conformity to the award or not.

No doubt the arbitrators put enough on paper at the time to make themselves perfectly well understood by the parties, who, had they both been disposed to comply with the award, would probably have found no difficulty in making the partition, on account of not understanding and knowing fully what it was that the arbitrators intended each should do, in order to carry the partition into effect.

It is evident to me that the arbitrators did not intend that any particular division of the property directed by them should be enforced further than the parties themselves should carry the same into effect from principles of honour, otherwise an award unexceptionably good, in form at least, would have been made, as gentlemen more competent for such purpose could not have been found. But then, it must be observed, that it is not barely sufficient in order to make an award good, that the parties, as well as the arbitrators, should understand what was meant and intended by it, at the time of making it.

It ought to be in such clear and intelligible terms, that every one who reads it may comprehend and understand it. The arbitrators cannot be called on, nor will they be admitted to declare and explain what it was, that they intended by their award. Their meaning must be collected from the face of the award itself; except “ when the words of the award have relation to things certain out of the award, these may be averred, for that is the express mind of the arbitrators, which they have expressly referred to.” 1 Bac. Abr. tit. Arbitrament and Award, 218-19.

As where an award was made that A. should permit B. to enjoy certain leases of lands purchased from J. S. and that B. should pay the rents and perform the covenants and deliver to A. a true copy of the leases and pay the arrears to the time of the purchase from J.

S., it was held a good award as to the rents and covenants, though not particularly specified; because by a reference to the leases which were in writing, and therefore certain, the minds of the arbitrators would be found to be as clearly and intelligibly expressed, as if they had repeated the same in their award ; but as to the arrears of the rent, which could not be ascertained without recourse to parol evidence, the award was held to be void for uncertainty. Massey v. Aubry, Style, 365.

So the agreement for partition of the property referred to in the award in this case, not being in writing, is altogether uncertain in respect to its terms and conditions, if not its existence, and could only be ascertained by means of parol evidence and a jury, who would have to determine on its import, and the intention of the parties in making it, as a matter of fact; and whether they would put the same construction on the intention of the parlies in making such contract, as the arbitrators did, may be very doubtful, and thus, in effect, the most material and important part of the award, would be referred to a jury for its

interpretation, instead of the court, which is certainly the proper tribunal to give a construction to awards that are in writing. In the case of Bedam v. Clerkson, 1 Ld. Raym. 123, an award to deliver up a certain xuriting obligatory without specifying the date or penalty, was adjudged void for uncertainty. Also in Pope v.

Brett, 2 Saund. 292, 295, an award that A. should be paid and satisfied by B. the money due and payable to him for work, and that A. should pay twenty-five pounds to tí., and that each of the parties should give the other a general release, was held to be void on account of the uncertainty as to the sum that was due for the work.

In this last case, doubtless the money awarded to be paid to A. for his work, was due to him under an agreement made with B., but still it would not have helped the award, if the arbitrators had directed the money that was due to A. by B. for work, to be paid according to their agreement, which would have made the case similar, even in terms, to the case under consideration. In Schuyler v. Van Der Veer, 2 Caine’s Rep. 235, it was held, that an award “ to finish the house” and “ to pay for the stone,” without saying what house or what stone, was void for uncertainty. I will refer also to the case of Johnson v.

Wilson, Willes’s Rep. 248, without saying that I should feel myself bound by it, were the same question to come before me for determination, but it being a late case I cite it to show what has been adjudged necessary, in order to make an award good for the partition of real estate. The arbitrators in the case divided and allotted the whole of the estate in severalty among the parties, which had been previously held by them as tenants in common, but did not direct any deeds of conveyance to be executed to vest the allotments in the respective owners, and for this defect the award was held to be void.

To supply such deficiencies in awards by averments, and the introduction of parol evidence is so contrary to the established rule, as never to be thought of at the present day, and to do so indeed would overturn the whole doctrine as it regards awards in this respect.

Besides as the defendant in this case claims from the award the effect of a partition of real estate, the introduction of parol evidence to show the terms and the extent of the verbal agreement between the par-lies referred to in the award, in order again to extend the meaning and operation of the award, would militate against the express provisions of the act against frauds and perjuries, and upon this ground I also conceive it inadmissible.

Having shown that the award for carrying a partition of the property in dispute into effect is void ; it can present no objection whatever either in a legal or an equitable point of view, to the claim on the part of the plaintiff to have partition made of it.

Neither can the circumstance of Simon’s having mortgaged the wholeofthe property, he having the legal title to it in himself, and having bound himself at the same time by his bonds, for the payments of debts owing by him and Hyman jointly, be any objection to the property’s being divided before Hyman shall pay his proportion of these debts: for in making the partition both parties will take their respective allotments, charged with, and subject to the payment of them. Each will still have to pay his proper proportion, so that neither can gain or lose by making partition of the property on this account.

The judgment is reversed and a venire facias de novo awarded.