Brown v. Moore

• Decision Date: 03 November 1948
• Docket Number: 378
• Citation: 50 S.E.2d 5,229 N.C. 406
• Parties: BROWN et ux. v. MOORE et al.
• Court: North Carolina Supreme Court

50 S.E.2d 5

229 N.C. 406

BROWN et ux. v. MOORE et al.

No. 378

Supreme Court of North Carolina

November 3, 1948

Civil action for cancellation of an award of arbitrators on ground that plaintiffs withdrew from the arbitration agreement before the award was made,--heard upon motion of defendants for judgment on the pleading.

Plaintiffs allege in their complaint, and defendants admit in their answer these facts:

I. That plaintiffs own a certain specifically described parcel of land situate in Contentnea Neck Township Lenoir County, North Carolina, and defendants, as Trustees of Zion Church, African Methodist Episcopal Zion Church in America, hold title, for the use and benefit of said church, to another specifically described parcel of land in said township and county,--the two parcels of land adjoining each other.

II. That a dispute, having arisen between plaintiffs and defendants as to the true dividing line between their said respective parcels of land, plaintiffs, as parties of the first part, and defendants as parties of the second part entered into a written agreement, dated May 23, 1946, by the terms of which they mutually agreed, briefly stated: (1) To submit to certain named arbitrators for settlement the location of the true dividing line,--the finding of the arbitrators, or of a majority of them 'of said boundary line and the marking of the same' to 'be forever binding upon the parties of the first part, their heirs and assigns, and upon the parties of the second part, their successors and assigns'--they 'to be forever estopped from questioning same'; (2) that the arbitrators shall have full right and power (a) to fix the date for any hearing they may desire to have on the question of locating the true boundary line, and (b) to subpoena and swear witnesses; (3) that the arbitrators appoint a certain named surveyor to assist them in the locating, establishing and marking of the true boundary line as found by them, and who shall make a map thereof, which shall be duly recorded in the office of the register of deeds of Lenoir County, and as effective in fixing the said boundary line as if deeds were actually executed by the respective parties; (4) that the report of the arbitrators, fixing the true boundary line as aforesaid shall be made and delivered to clerk of Superior Court of Lenoir County, and by him certified for registration in the office of the register of deeds of Lenoir County; (5) that the agreement and the report be so registered; and (6) that the cost be apportioned between the parties as specified.

III. That upon the conclusion of a hearing before the arbitrators on September 20, 1946, it was agreed by all parties that final determination of the matter would be deferred until further investigation of the records of Lenoir County could be made by the surveyor,--after which the arbitrators would meet again; and that thereafter the arbitrators met on Monday night, October 20, 1947, together with counsel of the respective parties, and received the report of the surveyor.

However the allegations of the complaint and averments of the answer, as to what transpired from this point are not in complete accord.

Plaintiffs alleged (1) that the arbitrators made no award at the conclusion of the hearing on October 20, 1947, but advised the parties and their counsel that they would render an award on Friday, October 24, 1947; (2) that before any award was made by the arbitrators plaintiffs caused notice of their withdrawal from the arbitration to be served upon the arbitrators, and upon the defendants Trustees on...