Frost v. Smith's Heirs

• Decision Date: 03 April 1832
• Citation: 30 Ky. 126
• Court: Kentucky Court of Appeals
• Parties: Frost &c. <I>vs.</I> Smith's Heirs.

Page 126

30 Ky. 126

Frost &c.vs.

Smith's Heirs.

Court of Appeals of Kentucky.

April 3, 1832.

Appeal from the Jessamine circuit; W. L. KELLY, Judge.

Judge UNDERWOOD delivered the opinion of the court.

GEORGE S. SMITH, in his life time, instituted a suit in chancery against Simeon Frost and others, to settle a controversy growing out of an interference between John Moseley's entry for 20,000 acres, and Blackford's preemption claim of 1,000 acres.

This suit was finally disposed of by this court. See the decision in I Bibb, 375, where the nature of the claims of the several parties are fully set forth.

Thereafter, the heirs of Smith, recognising the right of Frost, &c. to 500 acres of Blackford's preemption under the decision of this court, filed their bill for the purpose of having a partition of the preemption between them and Frost and those claiming under him.

In 1829, Mason Singleton instituted an action of ejectment against Thomas S. Smith. The declaration contains two counts, the demise in one of which is laid in the names of John Craig, son of Toliver, John H. Craig, and Lewis Craig, J. S.; the other being in the name of Mason Singleton.

Pending these suits, on the 16th of March, 1830, the heirs of George S. Smith, of the one part, and Martha Frost, heir of Simeon Frost, John Frost, Stephen Frost, Richard Wood, Mason Singleton, John Lancaster, Robison Wells, and Susannah Hughes, for herself and the heirs of Joseph Hughes, deceased, of the other part, entered into articles of agreement, in which it is stipulated that the undersigned parties, who are interested in the result of said suits, being desirous of finally and speedily settling all matters of difference arising in said suits, and all other controversies relative to said land, have agreed and do hereby agree, that all disputes between them arising out of said suits, or that now exist between them relative to the land which they respectively claim under the titles of Joseph Blackford's preemption and John Moseley's 20,000 acres aforesaid (all the parties claiming under both and each of said claims,) and all questions relative to improvements or rents on the land in controversy, shall be referred and submitted to the award and final decision of John Parker, &c. or a majority of them, as arbitrators; and the parties do agree, and hereby oblige themselves, their heirs, &c. to have an order of reference made at the next term of the Jessamine circuit court, pursuant to this agreement." The artiticles contain the following provisions:

"The parties finally agree, that the award and decision of the arbitrators aforesaid, when made out and returned to the Jessamine circuit court, shall be entered as the final decree and judgment thereof in the several suits before named, and shall settle forever all disputes between the parties relative to said land. And it is positively agreed, that neither party, or any one of the undersigned who is interested therein, shall be at liberty to appeal or to prosecute any other suit for any matter that may be settled by said arbitrators, as it is clearly understood, that this arbitration is to settle finally and forever all controversies between the parties about said land. And, in order to make the same final and binding, each and every party and person interested who signs this agreement, hereby releases, relinquishes, and conveys to the party or person who may be entitled thereto under and by virtue of the award of said arbitrators, all and whatsoever land may be decreed to be conveyed by them respectively to any other of the parties."

The Jessamine circuit court made an order to the following effect:

"It is ordered, that all the matters of difference between the parties be referred to John Parker, &c. or a majority of them, who, in settling the controversies between the parties, are to take into consideration all matters of controversy, either in law or equity, that either party may think he has a right to urge, without regard to any form, and whose award, when returned, shall be made the judgment of the court."

At the July term, 1830, the arbitrators returned their award, which, notwithstanding the objections of the present appellants, was made the judgment of the court at the next ensuing October term.

However desirous we may be to enforce the decisions of arbitrators, because they are the judges selected by the parties, yet, in this case, we cannot sustain the judgment of the court rendered on the award.

There are two modes of settling controversies by arbitration; the one is according to the rules of the common law, and the other according to the provisions of our statutes. This arbitration commenced in articles of agreement, which present the features of a common law submission. But in the articles there is a stipulation binding the parties to make their submission a rule of court — thus demonstrating an...