Ballard v. Waldo, 53 N.C. 153, 8 Jones 153 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 153, 8 Jones 153

M. B. BALLARD v. WALDO & MITCHELL.

Where an action of trespass Q. O. F, was referred to arbitrators,--and they found the title to the hous in quo in tire plaintiff, and assessed 'damages, it was Seld a sufficient finding, and that it was not necessary for them to fix the boundaries between the parties.

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.

This was an action of'trespass guare clausum fregit', brought to the Superior Court of Martin county, at Spring Term, 1860.

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: “ Eeferred 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 E. 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 panties 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 Eebruary,.1860.”

W. W. Andrews, O.' S..C.

There were onffhe-docket, besides this one,.two-other cases,, in which the present plaintiff was.defendant,.and the-present defendants wer©. 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 the 20th of August, 1860, ta-bear and determine the above causes referred to, us, and alls the above causes-were continued over until Tuesday morning,. 9 o’clock, on affidavit pf Henry Mitchell. On Tuesday morning, 9 o’clock, w.e-met upon an island, called Hig.li! Island, ak the lower end of the field now owned by David. Bdrker, 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.th©4itle,.and' evidence on both sides, we, the referees, are of opinióa$„and:soadjudge and award, that the plaintiff, in causes no-1 and;'no-2, are not entitled to any damage, and that the land in question, from our best judgment, is the property and estate of Martin B. Ballard, and that 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 at a cypress stump on a drain*, standing, about ten or twelve feet from the creek, as showm-to be-the corner of the 'Whitley and Monk land. In case- no.. 3,. we are of opinion that the plaintiff, Martin B. Bailarais entitled to recover of the defendants, Waldo and Mitehel-lfthe 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. allí 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, of the Superi- or Court, 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 co-ver 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 causes, between, the parties.”

The Court,, upon consideration of the premises, confirmed the award, in the case of Ballard v. Waldo,.and Mitchell, 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. defendant.

Wmston, Jr., for the plaintiff.

Bodman, for the defendants.

Battle, J.

Most of the objections to the award, made in the 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 not dispose 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 thi-s-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, qua/re elansumi 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, 4 Dev. and Bat. Rep. 381. The land, upon which the-trespass -was alleged to have been committed, was necessarily described in the.-plaintiff’s declaration, and as the verd-ict-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 arbitrators* seem to-havegone further than was necessary, and to have done every thing 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, whieh 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 the ease of Carter v. Sams, 4 Dev. and Bat. Rep., 182, it was said that the Court will always intend every thing 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 rulé 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 damage to one hundred dollars.”' The Court held' the award 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,

Judgment affirmed-.