
    *Boyd’s Heirs v. Magruder’s Heirs.
    March, 1844,
    Richmond.
    (Absent Cabbll, P., and Stanakd J.)
    Arbitration and Award  —What Submission Is Binding and Entitles to Specific Execution of Award. — An eauitable title to land of which an intestate died seized being set up against his heirs, some'of the heirs and the claimants enter into an agreement under seal, referring the matter to arbitration, and the arbitrators award in favour of the claimants, and direct a conveyance by the heirs of their interest in the land to the claimants: Hisld. it was competent for the adult heirs who were sni juris to enter into the submission, notwithstanding there were other heirs interested in the subject who were not parties; that the award made in pursuance of such submission is binding on the parties to such submission, according to the terms thereof; and that, upon a bill in equity for the purpose, specific execution may be decreed against such parties to the submission, and a conveyance compelled of such legal title to the land as has descended to them respectively. Accord. Smith and others v. Smith &c., 4 Rand. 95.
    Same — Specific Execution in Part. — Such decree will be without prejudice to the right of the plaintitfs to proceed at law for a failure to comply with the submission and award in any other respect.
    John B. Magruder having purchased a tract of land in the county of Albemarle, < on which his sister mrs. Mary Boyd resided I during her life, the heirs of mrs. Boyd, ’ after her death and the death of her brother, j claimed that he intended the purchase for his sister, and had so declared, and that in 1 fact the land was paid for by her, or by her I brother out of funds of hers in his hands; and they insisted that there was a resulting trust for her in the land. To adjust the controversy growing out of this claim, the heirs of mrs. Boyd and some of the heirs of Magruder entered into an agreement under seal, submitting the matter to arbitrators ; the parties to the submission agreeing that all others interested, whether adults or infants, should, as well 762 *as themselves, submit to and perform whatever award should be made. The arbitrators awarded (amongst other things) that the heirs of mrs. Boyd were entitled to the land, and that Magruder’s heirs should convey their interest therein to them. But Magruder’s heirs refused to execute such conveyance. Whereupon a bill in equity was filed by Boyd’s heirs, insisting, that though some of the heirs of Magruder were infants or femes covert, there should nevertheless be a decree for a conveyance by them, upon the ground of the original resulting trust.
    John B. Magruder junior, one of the parties to the submission, having died intestate without issue, whereby his interest in the land descended to his mother, brothers and sisters and their descendants, an amended bill was filed, making defendants thereto as well the parties bound by the submission, as the other heirs of the said John B. Magruder junior, and praying a conveyance, according to the provisions of the award, of whatever legal title might be in the defendants.
    Answers had been filed to the original bill; but this amended bill was taken for confessed.’
    The cause coming on to be heard before the circuit court of Albemarle the I7th of May 1836, that court decreed that the bills be dismissed with costs.
    From which decree an appeal was allowed on the petition of Boyd’s heirs, insisting, 1. that upon the proofs in the cause they were entitled to relief against all the defendants ; and 2. if not against all, that they were clearly entitled to a. decree against the parties to (he submission, for a conveyance of the land with special warranty; for which was cited Smith &c. v. Smith &c., 4 Rand. 98.
    
      The cause was argued by Lyons, Stanard and 0. Johnson for the appellants, and by Leigh for the appellees.
    
      
      He had been counsel for the appellants.
    
    
      
      See monographic nota on “Arbitration and Award-’ appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   *ALLRN, J.,

delivered the following as the opinion of the court:

The court, without considering whether, under the circumstances disclosed in the record of this case, it would be competent to set up and establish by oral testimony such a resulting trust for the benefit of Mary Bojrd in the lands described, as by the bill is alleged, is of opinion that the testimony relied on does not prove that said lands were in fact paid for by said Mary Boyd, or that the purchase money was discharged out of any funds belonging to her in the hands of the said John B. Magruder deceased; and that although said John B. Magruder may have intended said purchase to be for the benefit of his sister the said Mary, and have so declared, such intention and declaration, in the absence of satisfactory proof of the payment of the purchase money, could create no resulting trust in her favour. ' The court is therefore of opinion that there was no error in the decree, so far as it determined that the heirs of said Mary Boyd deceased were not entitled to demand from such of the heirs of said John B. Magruder deceased, who were not parties to or bound by the said submission and award, a conveyance of the legal title descended to them from their father or ancestor the said John B. Ma-gruder deceased.

The court is further of opinion, that it was competent for the adult heirs who were sui juris to enter into the submission in the proceedings mentioned, notwithstanding there were other heirs interested in the subject who were not parties; that the award made in pursuance of such submission is binding on the parties to the submission, according to the terms thereof; and that the plaintiffs are entitled, as against such parties to the submission who laboured under no disability of coverture, to a specific execution of the award, by a conveyance of any legal title to the lands aforesaid which has descended to them respectively, and also to their legal remedy for any breach of the award or agreement of submission in any other respect.

*The court is further of opinion, that as it appears by the amended bill, which has been taken for confessed, that John B. Magruder junior, one of the parties to the submission, has departed this life intestate and without issue, whereby his interest in said lands has descended to his mother, brothers and sisters and their descendants, those who were not parties to or bound by the award, as well as those who were, are necessary parties in a suit by the plaintiffs to procure a conveyance of the legal title vested in said John B. Magruder junior; and therefore it was erroneous to dismiss the bill as to any of the defendants, as the plaintiffs, to this extent, were entitled to relief against all.

The court is further of opinion, that as the parties bound by the award were made defendants by the amended bill, which was taken for confessed, under the allegations thereof the specific execution of the award, by a conveyance of the interest in the lands held by the parties bound by- the award, was the only matter in issue, and the only relief which can properly be given is a decree for a conveyance to the plaintiffs, by the parties bound by the award and their representatives, of such interest in said lands as was vested in said parties bound by the award, with covenants, of special warranty; but such decree to be without prejudice to the right of the plaintiffs to proceed at law for any other matter embraced in the award, or to recover for any failure to comply with the terms of the award and the submission in any other respect.

The court is therefore of opinion, that said decree dismissing the original and amended bills with costs was erroneous, and that the same be reversed with costs. And the cause is remanded to the circuit court, with leave to make any new parties, should that have been rendered necessary by death or otherwise, and to be finally proceeded in according to the principles above declared.  