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Bowman v. Downer.

due from Downer to the plaintiff. It is insisted that the award is void, as the arbitrators did not follow the submission, or finally determine the matters submitted to them. The award, on its face, purports to have been made by the arbitrators, after hearing the parties and considering the proofs, upon all the matters submitted to them. In the case of Houston v. Pollard, 9 Met. 169, CH. J. Shaw observed that, “ when the claims on both sides are pecuniary, “ or for damages capable of being reduced to a certain sum, if the “ arbitrators, professing to decide on the whole subject, find a bal“ance due from one to the other, such an award is conclusive, al" though the particulars from which that balance resulted are not “ stated.” We are unable to perceive any matters in this case which do not fall within the application of this rule. From the submission, it appears, that the matter referred was a suit in favor of Solomon Downer against the defendant and others, in which was involved a controversy as to the validity of a tender made by Downer, and his right of recovery. That controversy, the arbitrators were to determine. They were also to ascertain the value of the rents or use of the premises, and the taxable costs of that suit, which were to be awarded to the prevailing party. From those matters, the arbitrators were to determine the balance due. There is nothing in all these matters but what are pecuniary claims, and capable of being reduced to a definite sum. The arbitrators were not authorized to impose upon the parties the performance of any specific act, aside from the payment of the balance in money, as that balance should be found. If, besides ascertaining a certain sum to be paid in money, the arbitrators were required to direct the specific performance of certain acts on an unperformed contract, greater certainty would be required; a general award would be too indefinite. It is possible, also, that that result would follow if they were not required, but simply had the power to make such an award. That was the principle on which the cases were decided, to which we were referred by the counsel for the defense. Rider v. Fisher, 3 Bing. N. C. 874; Madkins v. Horner, 8 Adol. & El. 246; Houston v. Pollard, 9 Meti 164. The case under consideration is not one of that character. The arbitrators were not authorized, by the submission, to impose on either of these parties the performance of any specific act or duty, but the payment of the

Bowman v. Downer.

money, as that balance should be found due. In all such cases, the award may be general. The arbitrators need not specify the particular matters determined, and from which the sum awarded was found. In 1 Steph. N. P. 80, as it is said, that all fair presumptions are to be made in favor of an award ; and if, on any fair presumption, the award may be brought within the submission, it shall be sustained. We have no doubt that the award in this case will be a good defense in any subsequent litigation that may arise out of the matters embraced in that submission. In relation to the costs of the arbitration, which are included in the sum awarded, we think the question must be treated as having been settled in this state, in the case of Hawley v. Hodges, 7 Vt. 237. The rule may perhaps be otherwise settled in England, and in some of the states in this country; Vose v. Howe, 13 Met. 244. But in the case of Harley v. Hodges, Ch. J. WILLIAMS observed that, “ there is no question that it is incident to the authority given “to an arbitrator, in a general submission, where no mention is “made of costs, to award concerning the costs of arbitration." That rule having been early adopted in this state, and the general practice being in conformity with it, we must consider the rule as settled. We think, therefore, that the plaintiff is entitled to recover in this case the amount of that award.

On the general counts, the plaintiff seeks to recover the amount paid by him to the town of Royalton, in satisfaction of taxes which were assessed in that town against the defendant. To sustain that claim it must appear that such taxes were in existence, that they have been paid by the plaintiff, and upon the request of the defendant. On this subject, it may observed that, if the testimony introduced in proof of these matters was competent, the jury, under the charge of the court, have found those facts to exist in the case. In relation to the existence of those taxes, and the amount for which · the defendant was assessed, we have no doubt as to the competency of the testimony introduced for that purpose, and that it had a legal tendency to prove their existence, and the amount for which the defendant was liable. If the question arose on a plea justifying the levy of the warrants on property, for the collection and payment of those taxes, the plaintiff would probably be held to more strict proof of the assessment. But if the defendant, knowing that these

Bowman v. Downer.

tax-bills were in the plaintiff's hands, agreed to settle them, or apply the amount on any claim he had against him, and those taxes were assessed and certified by the selectmen, we think that in this action they will afford 'prima facie evidence that such taxes existed, and of the amount due on them. The defendant possibly would not be concluded, by such an agreement, from having corrected any mistake that may have been made in making that assessment, but as the defendant offered no evidence of that character, the tax-bills were properly received in evidence. We are satisfied, also, that there was evidence tending to prove that the amount of those taxes had been paid by the plaintiff to the town of Royalton. If testimony tending to prove that fact was submitted to the jury, their verdict, finding that the payment was made, is conclusive in the case. The facts proved in the case, that the defendant, as constable, had those tax-bills in his hands, that his liability for them to the town was secured by his bond, as constable, and that he had settled with the town and taken up his bond, was competent evidence to be taken into consideration by the jury, and does afford prima facie evidence that the taxes assessed against the defendant were paid by the plaintiff to the town. It is true the taxes may have been abated, or the plaintiff may have been in other ways relieved from the payment of them. But that is not the legal presumption. If the fact so existed, it is a matter of defense, and for the defendant to establish by proof. On the question whether the defendant requested the plaintiff to pay the taxes for him, it is to be observed that the jury, under the charge of the court, have found that the arrangement was made between these parties in April, 1848, as was testified to by the plaintiff. In that arrangement, it seems that the plaintiff was indebted to the defendant on claims arising out of the estate of one Bosworth, and that he gave the defendant his note, payable in one year, for the amount due him, under a promise and assurance given by the defendant that, in the mean time, the taxes as well as the award and note, should be settled. It is necessarily implied, in this arrangement, that the plaintiff was to settle those taxes with the town, and that the amount he paid on those taxes, and the amount of the award, should be paid to the plaintiff by applying them on that note. That application of those claims has been prevented by the de

Howe v. Adams.

fendant's transfer of that note, and thereby compelling the plaintiff to pay the full amount due upon it, to an endorsee. Under those circumstances, we think the plaintiff is entitled to recover the amount he has paid on those taxes to the town of Royalton. The court also properly instructed the jury that that arrangement was competent evidence of a direct recognition of his liability on that award, and will avoid any question arising under the statute of limitations. The defendant having induced the plaintiff to give him his note on the Bosworth claims, under his promise that the award and the taxes should be settled and applied on the note, there is no propriety in his now being permitted to deny his liability on those matters. We think, therefore, that the judgment of the county court must be affirmed.

GARDNER J. Howe v. John Q. ADAMS,

Homestead.

Effect of a conveyance of it by the husband alone.

The owner of a homestead, having a wife, may convey it by his own deed, without

his wife's joining in it, so as to vest in the grantee a superior title to that of a subsequently attaching and levying creditor upon a demand which accrued before the first of December, 1850, and as to whose claim the homestead was not exempted from attachment.

EJECTMENT to recover the possession of certain lands in Andover. Plea, the general issue; trial by jury, May Term, 1855,UNDERWOOD, J., presiding

The premises in question were owned by John Adams, who was indebted to the plaintiff upon a promissory note given previous to the 1st of December, 1850. They constituted his homestead, and consisted of the house which he and his wife occupied in February, 1851, and of the land adjoining. John Adams conveyed certain land, including the premises in question, to Warren Adams, on the 10th of February, 1851, by a deed executed by himself alone, and in which his wife did not join. On the 12th of the same Febru

Howe v. Adang.

ary the plaintiff attached the premises upon a writ issued upon the above mentioned note, upon which he subsequently obtained a judgment, and took out an execution, upon which he procured the said John Adams' homestead to be set out, and then levied the execution upon a portion of the homestead premises, which was set off by metes and bounds. This levy was made October 14th, 1851 ; and on the 15th of the following December, the same premises deeded by John Adams alone, on the 10th of February before, were conveyed to Warren Adams by the joint deed of the said John Adams and his wife, and the said Warren Adams afterwards on the 14th of April, 1853, conveyed the premises to the defendant, who entered and was in possession of them at the commencement of the plaintiff's suit.

Upon the evidence showing the above state of facts, the county court, pro forma, instructed the jury that the premises were subject to the plaintiff's attachment, and that by it, and the subsequent levy, the plaintiff obtained a valid title to them, and was entitled to recover. Exceptions by the defendant.

S. Fullam and H. E. Stoughton for the defendant.

R. Washburn and Washburn & Marsh for the plaintiff.

The opinion of the court was delivered by

REDFIELD, CH. J. It is obvious from the general object and purpose of the homstead law, as well as from its specific provisions, that it was not intended to affect the essential rights of two classes of creditors ; 1st. Those prior to the act coming in force ; 2d. Those prior to the purchase of the particular homestead in question.

Hence the act contains no provision, applicable to those creditors whose rights are superior to the homestead interest. That class of creditors, it is supposed, will levy upon the land without regard to this interest the same as before the act was passed. But those who desire to levy upon the real estate of the debtor, subject to the homestead, are provided with a process for ascertaining that interest in such portion of the premises as the debtor shall elect. And no provision is made for setting out the homestead, in any other case, or unless the debtor shall elect to have it set out,

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