Anderson vs. Taylor. chase-money. And they giving her the $1,500 00, or substituting it, making it pay the $1,500 00 as rent for said land, does not cure, or remedy, or make legal the said award in this respect, or in any way relieve it of its illegality and injustice, and the gross mistake of the arbitrators of the law in this respect." "5th. And this deponent further says that on the trial by and before said arbitrators, plaintiff offered to give in evidence a deed made by J. C. Polhill to M. C. Polhill, dated 1st February, 1866, after the commencement of said action of ejectment, and after its submission to arbitration, conveying to Thomas L. Taylor, trustee for said Mary Jane Taylor, etc., the said parcel of land which the said Mayo so purchased from said John Pickett, and is now held by William M. Anderson, administrator of William W. Mayo, deceased; that is to say, one-half interest in the same, by said Mrs. Taylor giving up her half interest in the part so sold to Mrs. Jane Pickett, referring to the said land so sold 1st of February, 1842, to the introduction of said deed as evidence before said arbitrators, the counsel for this defendant objected on the ground that it was a title, if a title at all, acquired by the plaintiff, not only after the commencement of said action of ejectment, but after the submission of it to arbitrators; which objection was overruled by the arbitrators and the said deed read as evidence, and which ruling of said arbitrators this deponent is advised and believes was and is illegal." These objections were demurred to ore tenus, and the demurrer was sustained, and the award was made the judgment of the Court. Plaintiff in error says said objections were sufficient in law as stated. [NOTE.-A motion was made by counsel on both sides to put this cause to the heel of the Chattahoochee Circuit. The Court refused to do that, but allowed it by consent, to go to the heel of the entire docket of the term.] ELI WARREN, LANIER & ANDERSON, for plaintiff in error. Anderson vs. Taylor. A. T. BURKE, S. HALL, (by LOCHRANE & CLARKE,) for defendant. *By the Court-BROWN, C. J., delivering the opinion. 1. We are satisfied the failure of the arbitrators to furnish the party who objects to the award with a copy, as directed by Section 4183 of the Revised Code, is not sufficient cause for setting it aside. This provision of the statute is directory and should be complied with. But if the party has notice of the award, and appears at the first term of the Court, and files his objections, and does not show that he is taken by surprise, or that he has lost any right on account of the failure, we see no reason why that should vitiate the award. If he had failed to file his objections at the first term, because he did not in fact have notice of the existence of the award, or if he had obtained the notice during the term, and at so late a period, that he could not make out his objections, we do not say that the Court should have refused to allow him further time to make his objections. 2. An award, that the plaintiff in ejectment do recover the portion of land named, possessed by Mayo at his death, except the ten acres of land deeded to Henry Anderson, the land so awarded amounting to three hundred and ninety-five acres, when the amount claimed in the action of ejectment is four hundred and five acres, is not void for uncertainty. We think the maxim, id certum est quod certum reddi potest, applies. Suit was brought against Mayo for four hundred and five acres of land, described in the declaration; and it seems he died in possession, pending the action. The case was referred to arbitration, and the award was for plaintiff for the land named, possessed by Mayo at the time of his death, except the ten acres deeded to Anderson, adding the amount of land so awarded. It would seem that the sheriff could have no difficulty in locating the land by this description. It is said, however, it *For meaning of "By the Court," see note, 40th Georgia Reports, 670. Anderson vs. Taylor. does not appear where the ten acres deeded to Anderson is located. It is presumed the deed to him from Mayo is of record, and that the sheriff could inform himself by reference to it. Many actions of ejectment are brought in that section of the State where head-rights grants exist, upon a more imperfect description of the premises, and there is no difficulty in executing the process of the Court. But the authorities go farther. In 1 Washington's Chancery Court Reports, 448, it is said: If certainty can be obtained, by reference to something dehors the award, the party may, by an averment, cure an objection otherwise fatal. 3. But the main question in this case is still to be noticed. Were the objections filed to this award on the ground that the jury found contrary to law, and contrary to evidence, good? We think not. It is contended that the evidence as set forth in the objections was admitted, by the demurrer, ore tenus, to be correct, and that it showed, conclusively, that the award was wrong. If the demurrer had been reduced to writing, it admitted only such facts as were well pleaded. And we hold that the objection to the award on this ground was not well pleaded. The language used must be taken most strongly against the pleader. He does not pretend to say in this case that he has set forth all the evidence which was heard by the arbitrators. He only states that certain facts appear by the evidence. As he attacked the award, because the evidence did not sustain it, and as he undertook to set forth the evidence, he should have distinctly averred that he had incorporated it correctly as given in by both sides. From the statements made by the pleader, we are well satisfied that all the evidence heard by the arbitrators is not in this record. It appears that the defendant had been in possession more than the statutory period; but it does not appear from the statement made by his counsel in his pleadings, which it is said in argument, should appear, that there was also evidence before the arbitrators, of minority, fraud and coverture, to rebut the proof under the plea of the statute of limitations. But suppose the evidence had been fairly and fully set forth, as it was given in on the hearing before the arbitrators, Anderson vs. Taylor. could the Court then have set aside this award? At most it would make a case where the arbitrators committed error in deciding upon the law, and found against the weight of evidence. And we are satisfied the current of authorities is against interference by the Court, with the award, even in a case where it is admitted that these errors were committed by the arbitrators. In Burchill vs. Marsh et al., decided by the Supreme Court of the United States, 17 Howard's Reports, page 344, it is said: "The charges of fraud and corruption made in the bill, are denied in the answer, and the award is not so outrageous as of itself to constitute conclusive evidence of fraud or corruption. Error of judgment in the arbitrators is not a sufficient ground for setting aside an award." Mr. Justice Greer, delivering the opinion of the Court, says: "The general principles upon which Courts of Equity interfere, to set aside awards, are too well settled by numerous decisions, to admit of doubt. Arbitrators are judges chosen by the parties, to decide the matters submitted to them finally, and without appeal. As a mode of settling disputes it should receive every encouragement from Courts of Equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a Court of Equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the Chancellor, in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation. In order, says Lord Thurlow, (Knox vs. Symmons, 1 Vesey, Junior, 369,) to induce the Court to interfere, there must be something more than an error of judgment, such as corruption in the arbitrator, or gross mistake, either apparent on the face of the award, or to be made out by the evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened, he would have made a different award. Courts should be careful to avoid a wrong use of the word 'mistake,' and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over Anderson vs. Taylor. awards. The same result would follow if the Court should treat the arbitrators as guilty of corrupt partiality, merely because their award is not such an one as the Chancellor would have given." On page 351, Justice Grier adds: "The admission of witnesses to prove their estimate of damages, (even if it had been in the face of the objection of counsel, and not by consent) may have been error in judgment, but it is no cause for setting aside the award; nor can the admission of illegal evidence, or taking the opinion of third persons, be alleged as a misbehavior in the arbitrators, which will affect the award. If they have given their honest, incorrupt judgment on the subject-matters submitted to them, after a full and fair hearing of the parties, they are bound by it, and a Court of Chancery has no right to annul their award because it thinks it could have made a better. In Underhill vs. Van Cortlandt et al., Johns' Chancery Reports, 339, Chancellor Kent has reviewed the authorities, and discussed this question with great ability. The substance of his decision is contained in the following head note: "If there is no corruption or partiality in arbitrators, nor any misconduct during the hearing, nor any fraud practiced by either party, the award is binding and conclusive, and can not be set aside by the Court, however unreasonable or unjust the award may appear." In the discussion of the question, the Chancellor says: "Admitting that there was no corruption or partiality in the arbitrators, (and none is pretended,) and admitting that there was no misconduct in them during the course of the hearing, nor of fraud in the opposite party, (and none is established by proof,) then I say, the Court can not inquire into the charge of an over or under valuation, or of the reasonableness or unreasonableness of the award; but it is binding and conclusive. If every award must be made conformable to what would have been the judgment of this Court in the case, it would render arbitrations useless and vexatious, and a source of great litigation; for it rarely happens that both parties are satisfied. The decision by arbitration, is the decision of a tribunal of the parties' own choice and election. |