
    Jones v. Frazier.
    From Rutherford.
    An award ought, not to be set aside, unless it certainly appears to be against law, and that in a case where the arbitrators meant to decide according to law.
    The question presented in this case, was, whether an award which had been set aside by the Superior Court of Rutherford, was properly set aside, and the Tlaintiff properly ordered to pay Costs : and the following were the facts.
    The Plaintiff had purchased of the Defendant a tract of land, and before he had fully paid for it, discovering that his vendor claimed the land under a younger patent, when it had been previously patented by Tench Coxe, he sued on the covenants in the deed j and before issue was joined, the parties agreed to refer it to arbitrators, and their award to be a judgment of Court. Frazier had been in actual possession of the land for seven years, claiming under his patent. The award was in the following words : — “ We the undersigned, being mn~ tually chosen by, &c. to settle, determine, and give an. award about a controversy existing between them, res-j)ec^ng a ccrtain tract or parcel of land which said Jones now lives on, having taken the claims of both parties into consideration, do award, that Jones shall pay ail legal costs upon his suit against Frazier. We do further award and say, that as it doth appear to us the fee simple of the tract of land that Jones bought of Frazier, was not in Frazier at the time of the sale, therefore Frazier shall give up the judgment or execution that he has against Jones, for the sum that yet remains unpaid of the price of the land, and that in three and six months, he shall pay back the purchase money that he lias already received.” '
    The affidavit of one of the arbitrators was read in the Court below, from which, it appeared, that their decision was founded on an opinion that the seven years possession of Frazier could not give him title, inasmuch as his patent was included within the bounds of the elder patent to Coxe; and that those claiming under Coxe, having been in uninterrupted possession of a part of the elder patent, were, by construction of law, in possession of the whole.
    
      Mordecai for the Plaintiff.
    The only grounds on which an award can be set aside in a Court of Law, are misbe-haviour of the arbitrators, or, according to some authorities, error apparent on the face of the award. Actions at law7 will not lie to correct mistake of arbitrators, or to examine the merits of an award : the testimony of the arbitrators cannot be received to shew such mistake — Howland v. Douglas, 2 Johns. 62.
    Courts of Equity relieve against palpable mistake, or miscalculation, or partiality, or corruption; hut there is no such remedy at law in cases of submission not within the statute — Barlow v. Todd, 3 Johns. 368. These cases differ from that before the Court only in this, that this is an application to set aside an award : those were actions •, the one to repair an injury caused by an award j tiie other to enforce periormance by suit on the arbitration bond. But even that difference will not be found to exist in the case of Cranston et. al. v. Esc’rs of Kenney 9 Johns. 212, which was a motion to set aside an award. The Court there says, awards are only examinable when the condition is to be made a rule of Court, and then only for corruption, &c.
    The last cited case differs from the one before the Court in this, that the submission was not by rule of Court, whereas, this is : but the case of Lucas v. Markham, 2 Burr. 702, steers clear of this • difference : that was a motion for an attachment for not performing an award made under a submission, which had been made a rule of Court. Lord Mansfield says, the Court will not enter into the merits of a matter referred to arbitration, but only take notice of such legal objections as appear on the face of the award, and the misconduct of the arbitrators. And it is stronger than the case now before the Court: for the Court is not bound to grant an attachment; and in some cases, they will neither set aside the award, nor grant an attachment to enforce it, but leave the party to his remedy by action — Hales v. Taylor, Stra. 695 — Pedley v. Goddard, 7 Term llq). 73.
    It does not appear on the face of this award, that the decision is contrary to law; but if it did, it does not follow that the award should be set aside, unless it also appear that the arbitrators intended to decide according to law, and mistook it — Kyd, 351.
    But if the award were clearly bad, and ought to be set aside, the Judge erred in setting aside and declaring that the Plaintiff should pay costs ; in other words, pronouncing judgment upon the whole matter against the Plaintiff. If the award was set aside, the suit should have been continued, either under the rule of referene'e, or if that were discharged, for trial.
   Tateor, Chief-Justice.

As I think the veal and substantial justice of this case was settled by the award, I should be unwilling to set it aside, unless compelled to (|Q g0 j,y some rule of law. When Jones bought the land, he expected to obtain an undisputed title$ but discovering that the vendor claimed under a younger patent, when the same land had been previously patented, he sued on the covenant in the deed; and before the cause was put to issue, the parties referred it to four of their neighbors to settle. The arbitrators decided, from the fact of the older patent, and possession under it, that the Defendant’s seven years’ possession did not give him a title, and that the possession of those claiming under Cox’s patent, was co-extensive with their claim. Admitting the lav/ to be otherwise, still it gives Jones such a title as is liable to be drawn into controversy, and which he cannot establish in the common way of land titles, by producing recorded grants and deeds, but must resort to parol evidence to prove Frazier’s possession. It may happen, too, that some of the parties claiming under the elder patent may have been under disability during the whole time of Frazier’s possession, thereby preventing it from ripening into a title. Now an award ought not to be set aside until it certainty appears to be against law, and that in a case where the arbitrators meant to decide according to law. From the few facts set forth in the case, I cannot draw this inference $ and therefore think that the judgment of the Circuit Court, setting aside the award, should be reversed, and judgment be entered according to the award.

Haul, Judge.-

This award sets forth no fact, oil account of which, it ought to be set aside. If it was right to look into - the affidavit which accompanies it, that affidavit, instead of militating against it, furnishes ijhe strongest reasons why it ought to stand. The Plaintiff sold a tract of land to ,the Defendant, for which an older errant had issued, and whether the title under that ° grant had been lost, and acquired by the junior grantee, by a seven years uninterrupted possession, had never been ascertained by a trial between the parties. The arbitrators were at liberty, and I think did right when they released the Defendant from a contract for the purchase of land, over the seller’s title to which, such a cloud was hanging: they were right in saying, he should not be bound by a contract which would necessarily involve him in litigation. There is no evidence that he had any knowledge that the land was claimed by any other person than the Plaintiff, at the time of the purchase. I think the judgment of the Superior Court, which set aside the award, ought to be reversed, and a judgment entered confirming it.

HENDERSON, Judge, concurred.  