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Giddings v. Hadaway.

their land lines settled and determined, and all damages in the premises awarded, the said Benjamin Giddings, and the said Benjamin Hadaway, hereby elect and make choice of Samuel P. Hooker, Joseph Joslin and Joseph Park3, for arbitrators, to hear and fully award in the premises. And the said Benjamin Giddings and Benjamin Hadaway hereby agree to, and with each other to stand to, to abide by, and perform in all things the award that said arbitrators shall make and publish in the premises, and the said arbitrators shall assess, and allow to the party in whose favor they make the award, all the taxable costs in said suit, and the costs and taxable expenses of said arbitration.”

The plaintiff also gave in evidence a writing, signed by, and purporting to be the award of said arbitrators, which, after referring to the submission, was in the words following: “ Now know

ye that we, the arbitrators in said agreement mentioned, having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make their award in writing, that is to say, that the east and west line, (which was the only one in controversy,) between the farms of the said Giddings and Hadaway, is a line commencing at the southwest corner of the three rod jog,' and thence running east in the north line of the Widow Solomon Giddings dower, and in the same course, until it reaches the east line of the said Giddings' farm; and that the said IIadaway pay to the said Giddings, twelve dollars and fifty cents; and the costs of said suit, and the costs of said arbitration."

The plaintiff also gave evidence to show that the costs of said suit, at the date of the award, amounted to $17.65, and that the costs of said award amounted to $18.94.

The defendant claimed that the whole of said award was void, because it was uncertain, in reference to the location of the line between the farms of the said Giddings and Hadaway, and that by reason of that uncertainty, it did not settle or determine the prin. cipal matter submitted, and offered parol evidence to show, that the north line of the Widow Solomon Giddings' dower, mentioned in said award, was unknown and uncertain, and could not be ascertained, and that there was, in fact, no such north line, or monument as referred to in said award ; but the court excluded the evidence,

Giddings v. Hadaway.

and held said award to be valid, and rendered judgment for the plaintiff to recover the sums above mentioned.

Exceptions by the defendant.

B. Frisbie and J. S. Harris for the defendant.

An award may be reduced to a certainty, by a reference to something outside, as to a written document, or the inspection of some particular house, land, or boundary, but if those referred to are in themselves uncertain, a party can have no remedy except to prove their uncertainty ; nor can they be reduced to a certainty without proof. Cald. on Arb. 250–1.

Parol proof is admissible to invalidate an award. Hewitt v. Furman, 1 Met. & Perk. Dig. 222. 16 S. & R. 135.

J. B. Beaman and E. Edgerton for the plaintiff.

This suit is brought to recover the two bills of cost, and the $12.50 referred to in the award.

All this has no connection with the location of the line between the farms of the parties ; and supposing that part of the award relating to this line, to be void, for uncertainty of description, yet the award is valid, as to the subject matter of this suit, and was decided by this court to be so, at its February session, 1855. An award may be good in part, and bad in part. 3 Phil. Ev. 1027, 1028, 1029 and 1034.

The opinion of the court was delivered by

REDFIELD, CH. J. The evidence offered to show that the monuments referred to in the award, in defining the boundaries between the parties, did not exist, at the time of the award, was, no doubt, competent for the purpose of showing the uncertainty of the instrument; and the fact offered to be shown, which, for the purpose of this trial, is to be regarded as proved, would, no doubt, effectually defeat this portion of the award. For it is only on the supposition that the monuments referred to exist, and may be found, that such award can ever be regarded as sufficiently certain to be binding upon the parties. The evidence offered, therefore, was addressed to a fatal point, in regard to this portion of the award.

The only question, then, is, whether this portion of the award is susceptible of entire separation from the other portion of the

Giddings v. Hadaway.

award. If so, the portion of the award sued upon may be held valid. The submission is of a pending suit for trespass upon lands, and cutting trees. We are justified, no doubt, in regarding it as the very land where the boundary was in dispute. But still the suit for the damages, although upon the land in dispute, had no necessary connection with settling the disputed boundary. The arbitrators must, indeed, decide where the line is, in order to determine the right of the plaintiff to move in the action. And there is nothing to raise any doubt, that the arbitrators did decide, or might have decided the line correctly. The defect in the award, in regard to the line is, not that the arbitrators may not have decided where the line was between the parties, and that correctly, but the defect, if any, upon the proof offered, is, that they have not correctly defined the boundary. There is no want of finality shown in the decision, but a want of certainty in the award,

The award upon the pending action, and giving damages and costs, has no more connection with the award, in regard to the boundary, than an action of trespass for cutting the trees, and an action of ejectment to recover the disputed land; or than separate submissions of the two subjects to the same arbitrators, or to different arbitrators.

The arbitrators, for anything which appears, or can fairly be inferred from the award upon the boundary, may have, and probably did determine the action understandingly, and made no stumble in that portion of the submission, but in defining that portion of the award which refers to the boundary, failed to point out intelligible monuments. The damages and costs had no connection with the boundary. The only thing which could, with any plausibility, be said to be connected with both parts of the award, is the fees of the arbitrators. But in regard to these, as the arbitrators must have determined where the line was, in order to decide the suit referred, and nothing more was to be done to decide the boundaries between the parties, than to define the line, by proper description of existing monuments, it can scarcely be supposed their fees were increased by that portion of the award, which is defective. This is a point not raised in the argument, and not sufficient to create any difficulty in separating the two parts of the award, as we think. Judgment affirmed.

Manly et al. v. Slason.


Debt on a decree in chancery.

An action of debt will not lie upon a decree of the court of chancery which merely

adjudges the existence and amount of a lien upon real estate, and provides, in default of its payment otherwise, for an application of the real estate towards its satisfaction.

The decree counted upon in the present case adjudged to be such a decree.

DEBT on a decree of the court of chancery. The declaration counted only upon the ordering or adjudging part of the decree. The defendant plead that the plaintiff ought not to have or maintain his said action, “because the said decree in the plaintiffs’ declaration mentioned was as follows,” and then proceeded to set forth the entire decree, including the stating or introductory part of it. To this plea the plaintiff's demurred. The county court, September Term, 1855,—PIERPOINT, J., presiding -adjudged the plea insufficient, and rendered judgment for the plaintiff for the amount decreed to be paid, deducting the appraised value of the land. Exceptions by the defendant.

From the introductory part of the decree it appeared that the the plaintiff Manly conveyed to the defendant a certain tract of land, receiving therefor the defendant's notes, which he subsequently pledged to the other plaintiff Lathrop, as collateral security for a debt he was owing him. The land was subsequently conveyed by the defendant to one Ormsbee, who was also a party defendant to the suit in chancery in which the decree was rendered. The orators claimed a lien upon the premises for the amount due upon the notes, there being no mortgage or other writing respecting it. The decree was that the defendants Slason and Ormsbee pay to the orators $2,219.72, on or before a time stated, and, if they failed to do so, that Manly should hold the premises the same as though his deed of them to Slason had never been made and delivered ; with a further provision, in the words following, “ and, “ in case the aforesaid sum of money, with the interest thereon, “shall not be paid agreeably to this decree, and the said premises “(meaning the premises herein above described,) shall thereby “ become the property of the said Manly, free and discharged of " and from any right accruing from the aforesaid deed of said “ Manly to said Slason, the same shall be received by the said

Manly et al. v. Slason.

court upon

* Manly in full satisfaction of so much of the aforesaid sum, sọ "ordered to be paid, as aforesaid, and of the interest due thereon, " as the said premises shall be worth on said third Monday of " March, 1850; the value of said premises to be ascertained by " three disinterested and judicious persons, to be appointed by the

the application of the orators; and in case the orators “shall neglect to make application for the appointment of such " persons to appraise the value of said premises, for the space of “ thirty days after the said third Monday of March, 1850, then the " said premises are to be received in full satisfaction of the afore" said sum of money, so ordered to be paid as aforesaid, and of the " said several promissory notes executed by said Slason to said “ Manly, as mentioned in the orators' bill."

The declaration alleged an application for, and an appointment of appraisers, in accordance with the provision for that purpose in the decree, and an appraisal of the premises at the sum of $1,450; and that the balance of the amount ordered to be paid above the appraised value of the premises had never been paid or satisfied.

S. H. Hodges for the defendant.

An action at law will not lie upon such a decree of foreclosure. It is, in the language of this court, an alternative decree; Thrall v. Waller, 13 Vt. 231. It is not conclusive as to the amount due from the defendant to the plaintiffs, nor even that anything is due; but only of the sum for which the land is holden. No execution can be had for the costs ; much less for the debt. Binney v. Wetherbee, 10 Vt. 322. It has been held in every case, sustaining an action at law for a similar deficiency, that the original demand was not merged in the decree, and the original demand has been uniformly declared upon as the sole cause of action. Lovell v. Leland, 3 Vt. 581; Paris v. Hulett, 26 Vt. 308; Globe Ins. Co. v. Lansing, 5 Cow. 380; Spencer v. Harford, 4 Wend. 381.

C. L. Williams for the plaintiffs.

Every substantial question here presented, was involved, and seems to have been considered and determined, in the views taken and opinion given, in Thrall v. Waller, 13 Vt. 231. The decree was for the payment of a "fixed, liquidated and absolute debt,"

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