
    Kincaid v. Cuningham.
    Monday, March 4, 1811.
    I. Equitable Relief— Judgment —Error ill Law. — A court of equity will not relieve against a judgment, on the ground of error in law only: it must appear that justice requires its interposition, and that the party was prevented from obtaining it by the legal forms of pleading, or by some fraud, accident or mistake. „ „
    „ „ . Arbitration and Award —Award -Sufficiency.— The circumstance, that a submission to arbitration contains a recital that one of the parties had warranted the title to a tract of land, (when, in truth, the writing signed by him had not that effect,) is not a sufficient reason to disturb the award, no fraud or undue influence appearing; and it being possible that the contract was mutually understood as a warranty, though its legal construction was otherwise.
    This case was argued by Hay, for the appellant, and Nicholas, for the appellee; but so nearly resembles in principle the cases of Terrell v. Dick,  Turpin, Administrator of James, y. Thomas,  and Syme v. Montague,  on the extent of the jurisdiction of a court of equity; and the cases of Shermer v. Beale,  Pleasants, Shore & Co. v. Ross,  Taylor’s Administrator v. Nicholson,  Morris, Overton and others v. Ross,  and Scott’s Executors v. Trents, Crump & Bates,  on the obligatory effect of awards, that a brief sketch of its material circumstances (together with the opinions of the judges) may be sufficient.
    *A judgment at law was" obtained by Andrew Donnally, (who sued for the benefft of Walter Cuningham,) against Thomas Kincaid, in the county court of Augusta, for four hundred pounds damages, and costs, in an action on the case, founded on an alleged warranty, by Kincaid, of the title of a tract of land, (called the Spring Dick,) which he had purchased of Jacob Persinger, who claimed it by virtue of a settlement made by a certain Christian Saunders. The title paper from Persinger to Kincaid, dated the 10th of January, 1771, contained a clause of general warranty, and was endorsed by Kincaid, “assigning his full right and title of the within to Andrew Donnally, for and in consideration of the sum of twenty-seven pounds, current money of Virginia.” Andrew Donnally, the Sth of February following, “assigned his right thereof unto Walter Cuningham.” Such being the nature of the document on which the claim of the plaintiff rested, the defendant demurred to the evidence.  The county court overruled the demurrer, and gave judgment for the plaintiff; Kincaid appealed to the general court; but, instead of prosecuting his appeal, agreed with Cun-ingham to submit the controversy to arbitration. The written instrument of submission, bearing date the 21st of August, 1787, and signed by both parties, recited that “Cuningham was the purchaser of a tract of land in the county of Greenbrier, which was warranted by Kincaid; that the title was evicted in a court of judicature, Cuningham being a party to the suit, and making the-proper defence; that he had called upon Kincaid in the county court of Augusta for compensation, and obtained a verdict, which the latter thought excessive; and that Cuningham, being unwilling to insist upon what might appear to Kincaid unreasonable, *had submitted the matter to arbitrators to say what he should receive.” Cuning-ham bound himself to release so much of said judgment as the arbitrators should award; and Kincaid bound himself to pay the balance. The award was, that Kincaid should pay to Cuningham two hundred and fifty pounds, by three instalments; (one of which,was to be in certain property;) that no execution should be levied until the last payment should become due; and that Cun-ingham should relinquish the residue™ of his judgment.
    
      Being dissatisfied with this award, Kin-caid refused to pay the instalments, and, on the 21st of May, 1789, (shortly after the last had become due,) obtained an injunction from the county court of Augusta to stay proceedings on the judgment, as, to 1321. 10s. part thereof; alleging, in his bill, that the arbitrators had awarded the payment ot 2501. upon the supposition that the said tract of land contained 400 acres; which opinion he was, at that time, unable to controvert; having no testimony, or voucher, by which the real quantity could be ascertained; bur that, in fact, there were only 188 acres. In this bill of injunction, Kincaid expressly admitted that “Cuningham’s title to the land, under the aforesaid bill of sale and endorsements, was, by the commissioners for settling the claims to lands on the western waters, previous to the establishing the commonwealth’s land-office, determined to be a bad one, in consequence of which he lost the said land.” 
    
    Cuningham answered the bill, denying any knowledge or belief that the award was founded on the supposition of there being 400 acres of land in the tract; but expressing a belief that it was on the supposition that there ought to have been that quantity, and his title thereto made good; “for, if the claim in its origin had been good, the aforesaid court of commissioners would have granted him the quantity of 400 acres of land, as that was the quantity allowed by law to settlers in the western *country. The defendant did not remember that the complainant ever alleged any deficiency in the quantity of land, or- ever attempted to prove or suggest any such matter before the said arbitrators; but that, even supposing there are only 188 acres in the survey, it includes all the good or valuable land, and that the land adjoining, to make 400 acres, is very indifferent, and could have very little weight with the arbitrators to make them increase the sum.”
    The affidavits of David Stephenson, Joseph Bell, and James Bratton (three of the arbitrators) were taken, from which it appeared that they were governed, principally, in their opinion of the value of the land, by the testimony of a certain Benjamin Strother. David Stephenson “could not recollect whether that witness gave evidence as well to the quantity and quality of the land, as to the real value thereof taken as a tract.” Joseph Bell states, that “he thinks Strother was examined as well to the quantity in the survey made, as to what might have been made, had the claimér chose.” James Bratton swears, that the award was made “on the apprehension that the tract contained 400 acres.”
    Benjamin Strother’s affidavit (also taken in support of the bill) states, that he valued the land at 2501. “considering the survey as containing only 400 acres.”
    A plat and certificate of survey, filed in the cause, showed the actual quantity to be 188 acres, according to a survey made fcr the Greenbrier Company, in the year 1751.
    The cause coming on to be heard, the court dissolved the injunction.
    “The complainant thereupon showed to the court the original title bond, and contended that he had not stated his full equity, there being no warranty of the land in the assignment, as erroneously stated in the submission; and that the court ought to consider that subject, (although not stated in the bill,) or, at least, permit him to *amend it by stating that the acknowledgment of a warranty in the submission was under the pressure of a judgment for 4001., and was lopping off his most material defence before the arbitrators, without consideration, and, therefore, could not be binding. The court were of opinion that they could not consider that equity, and refused an amendment of the bill.” From which decree the plaintiff prayed an appeal, which was allowed, (though objected to by the defendant, on the ground that the decree was interlocutory only,) but does not appear to have been prosecuted.
    He afterwards presented a new bill to the judge of the superior court of chancery holden at Staunton, and obtained a second injunction ; relying on the equity stated in the former bill, and on additional charges, that Cuningham had artfully stated in the submission to arbitration that Kincaid had warranted the title; (which was not true;) that Cuningham had been legally evicted in a court of law, and had made the proper defence; which was questionable, since he had never given the complainant notice of the claim or trial, and had neglected to have certain witnesses summoned, by whom his right might have been established. The new bill expressed a firm belief that Cuningham had been guiltj' of fraud and collusion in feebly defending the title; and further contended that Donnally, so far from colluding with the said Cun-ingham, to throw all the burden on the complainant, when he, Donnally, was equally bound himself, ought to have pursued the warrantor Persinger. The complainant also claimed certain credits for payments, but not to a large amount.
    The answers of Cuningham and Don-nally (both of whom were made defendants) pointedly denied all charges of fraud or collusion; and Cuningham particularly swore that no undue influence was exerted by him to induce Kincaid to agree to the submission, which was freely and voluntarily done; that the words inserted *relative to the warranty, were plainly understood by the parties; “that it was considered by this defendant that the controversy was to be decided, then, in the same manner as if Persinger, the original obligor, was the party; this the defendant was further induced to do from a knowledge of Persinger’s situation, who was not able (as he supposed) to make compensation;” that as to the defence of the title, the said defendant used every exertion in his power to get the land; that it was his wish to get it, and that he could then have sold it (if he had recovered it) for 4001. in property. He contended, moreover, that the circumstance that only 188 acres were surveyed in 1751, could not avail the complainant, since Persinger’s obligation (which was assigned) mentioned no quantity, and since the land law authorized 400 acres for a settlement.
    A number of depositions were taken on both sides, but need not here be stated, the general result being expressed in the following opinions of the judges.
    The Chancellor perpetuated the injunction as to 301. 19s. 9d. paid by the plaintiff; but dissolved it, and dismissed the bill, as to the residue of the sum in controversy; from which decree the plaintiff appealed to this court.
    
      
       Equitable Relief -Judgment — Error of Law. — To the point that courts ot equity cannot correct the errors of courts of law. the principal case is cited in Bierne v. Mann, 5 Leigh. 367 it being said that Kin-caid v. OuningMm overruled Bullock v. Goodall, 3 Call 44. See the principal case cited in Westv. Log-wood, 6 Munf. 499; Tomkies v. Downraan, 6 Munf. 569.
      See further, monographic note on ‘Judgments” appended to Smith v. Carlton, 7 Gratt. 435; mono-, graphic note on '‘Injunctions” appended to Claytor v. Anthony. 15 Gratt. 518: monographic note on ‘‘Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
    
      
       Arbitration and Award. — See generally, mono-graphic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
    
      
       Same- Award — Fraud— Equitable Relief. — It is well settled that courts of equity will, in proper cases, look Into and examine the proceedings of arbitrators to a certain extent, and. if it be found, in conformity with the established rules, that, in any given case, the arbitrators have been guilty of corruption or fraud, partiality, misconduct, or gross or palpable mistake, or excess of power, in making their rewards, the court will set it aside, and declare it null and void. Dickinson v. Railroad Co., 7 W. Va. 429, 430, citing, among others, the principal case.
    
    
      
       1 Gall, 546
    
    
      
       2 I-I. & M. 139.
    
    
      
       4 H. & M. 180.
    
    
      
       1 Wash. 14.
    
    
      
       Ibid. 158.
    
    
      
       1 II. & M. 67.
    
    
      
       2 11. & M. 408.
    
    
      
       4 H. & M. 356.
    
    
      
       See Co. Litt. 365, a; Sugden’s Law of Vendors, 313, 314; Doug. 654; Bre v. Holbech, which authorities were cited by Mr. Hay in the argument.
    
    
      
       See acts of May, 1779, c. 12: Ch. Rev. p. 92,93, 94.
    
    
      
       See acts of May, 1779, c. 12; OR. Rev. p. 92, s. 5.
    
   Thursday, March 17. The judges pronounced their opinions.

JUDGE BROOKE.

This seems to be a hard, though not uncommon case. Settlement rights to lands in the western country, at the time the contract in question was made, were of little value, owing to the situation of the country, and, perhaps, also to the uncertainty whether the legislature would confirm them; especially those that interfered with the previous claim of the Greenbrier Company. On the ground of hardship alone, I see nothing *in the case that would authorize a court of chancery to interpose; though enough to induce that court to look with a critical eye for any other ground on which to grant relief. I have, therefore, with great attention, at least, examined the record, and feel some regret that I have not been able to discover any thing in the case to sustain any of the other objections of the counsel for the appellant. I can perceive nothing in the evidence that can authorize me to disturb the judgment of the land commissioners. The allegation that the appellee made a covinous defence before them is not, in my opinion, supported by the testimony; nor do I feel myself at liberty to revise the judgment at law upon the title bond (as it is called) in behalf of Donnalljq the assignee of the appellant, for the benefit of the appellee. I think it more than probable that the appellant intended to bind himself to Donnally, by the assignment of that bond, to warrant the title ; and though, in strictness of law, he may not have executed a proper instrument for that purpose, yet no error that might have been corrected in that court can properly be relieved against in a court of equity; especially one which consisted in conforming the judgment of the court to the intention of the parties, instead of defeating that intention by a rigid adherence to the strict rules of law. On this point I refer to the case of Syme v. Montague, in this court,

Upon the last objection I have had less difficulty. There is no evidence that the appellee practised upon the fears of the appellant, by holding the judgment at law over him, to constrain him to enter into the submission to arbitrators; and the words in that instrument, “that Cuning-ham had made a proper defence before the commissioners,” might have been inserted by the counsel who drew it, from excess of caution, or (what is more probable, as has been insisted on) to exclude from the arbitrators all other matter, of controversy except the value of the land. Whether that value was ascertained *upon correct data, cannot now be questioned, unless misbehaviour in the arbitrators, or some one of them, were proved, ora palpable mistake in the amount, and not in the manner of making up the award, were shown. The case of Taylor’s Adm’r v. Nicholson, and the case of Morris & Overton v. Ross, are authorities to that effect. The depositions of the arbitrators in the present case differ somewhat as to the ground on which the award was made; but nothing can be collected from them that will authorize either a court of law or equity to set aside the award, according to the principles established by the foregoing cases, and many others decided in this court.

I am, therefore, of opinion, that the decree dismissing the appellant’s bill be affirmed.

JUDGE TUCKER.

X feel every disposition (were it possible) to relieve the appellant from the effects of the original judgment against him, which is contrary to every principle of common law. But as, instead of prosecuting his appeal, he submitted his case to arbitrators, against whom no charge of pattiality or misbehav-iour is even surmised, and who, from length of time, appear to have, in some measure, forgotten, and certainly do not agree in their opinions as to the grounds upon which they went in making their award, I think there is not sufficient evidence of mistake (in respect to the quantity of land in the tract which they were called upon to value) to set aside their award, or to reduce the amount thereof in proportion to the supposed mistake. I am, therefore, (though very reluctantly,) of opinion, that the decree ought to be affirmed., I concur with the judge who has preceded me on the other points. This case, in principle, bears so near an analogy to that of Scott’s Ex’rs v. Trents, Crump & Bates, that I beg leave to refer to it for my reasons more fully on this subject,

JUDGE ROANE.

For the reasons assigned by the judges '‘'who have gone before me, I concur in opinion that the decree be affirmed.

JUDGE FLEMING.

This is, no doubt, a hard case on the part of the appellant; but it seems to have arisen, rather from his own incaution and folly, than from any misconduct or unfair dealing on the part of his opponents; and it appears, indeed, that Cuningham acted with candour and generosity, particularly before the arbitrators. The loudest clamour of the appellant against him is, that he lost the land before the court of commissioners by his own neglect, and the suggestion of a covin between him and M’Clenahan, who claimed under Fulton, who -ecovered it in the commissioners’ court. Besides that there is no evidence of such conduct, it is expressly denied by Cuningham, in his answer; and it is not to be presumed that he would make a feeble defence of the title, with a view of getting compensation from Kin-caid, who is represented as a very poor man. As to the deficiency in the quantity of land, supposed to have been 400 acres, which occasioned the high damages assessed by the jury, it may be sufficient to observe, that though there might not be more than 188 acres actually surveyed, whoever established a settlement right was not only entitled to 400 acres for the settlement, but also to a pre-emption of 1000 acres, if there were so much unappropriated land adjoining, But, however all this may be, the appellant is bound and concluded by the award of the arbitrators, judges of his own choosing, who appear to have acted with great candour and circumspection ; and who, it is presumed, from some equitable circumstances that appeared in favour of the appellant, reduced the judgment at law more than one third of its amount, and made the terms of payment of the balance easy, by dividing it into three instalments, *one of which was to be paid in property, at a rea-sonab1e value.

On these grounds, I concur in opinion that the decree be affirmed. 
      
       4 H. & M. 180.
     
      
       1H.4I. 67.
     
      
       2 H. & M. 408.
     
      
       4 H. & M. 356.
     
      
       See also, 3 Atk. 644; Amb. 245; 1 Ves. 370; 1 Wash. 14, 158.
     
      
       Ch. Rev. p. 92.
     