Myers v. Easterwood

• Decision Date: 29 June 1883
• Docket Number: Case No. 3442.
• Citation: 60 Tex. 107
• Parties: J. W. MYERS v. JAS. A. EASTERWOOD.
• Court: Texas Supreme Court

60 Tex. 107

J. W. MYERS

v.JAS. A. EASTERWOOD.

Case No. 3442.

Supreme Court of Texas.

Jun. 29, 1883.

APPEAL from Johnson. Tried below before the Hon. D. M. Prendergast.

Appellee brought this suit in trespass to try title against appellant and Samuel Truitt, to recover possession of one thousand two hundred and eighty acres of land, claiming title to and possession of the whole of the tract by virtue of a deed from O. P. Arnold, as sheriff of Johnson county, to C. Y. Kouns, dated the 6th of April, 1875, same purporting to convey the title of the plaintiffs in the case of Haltaman et al. v. Newby et al., and a deed from said C. Y. Kouns to J. A. Easterwood, plaintiff in the court below, praying for judgment of possession, for a production of defendant's deeds, if any; a cancellation of same, for the removal of all cloud from title, and for the confirmation and establishment of same against defendants and those claiming under them, and for damages, etc.

On the 11th day of September, A. D. 1875, appellant and appellee entered into a written agreement to arbitrate the question of title. This agreement of submission stated that it was made under the statute; that certain disputes existed between them respecting the title; that both parties claim title; that, mutually consenting to the adjustment and settlement of their rights to the land by arbitration, they chose T. D. Lorance, to whom they agreed to submit the matter in dispute between them for settlement, with authority to meet at the time and place assigned by the clerk of the district court for the settlement of the claims of the parties, and to examine the evidence, etc., relative to the said land by reason of their adverse claims thereto; that the said T. D. Lorance should be the sole arbitrator; “that after hearing the evidence he shall make up his award and deliver same to the district clerk, etc., to be disposed of according to law, and which shall be final and conclusive upon the parties in regard to the aforesaid subject matter in dispute.” This agreement was filed in the district court in this cause on the 11th day of September, 1875. Under this agreement a day was appointed by the clerk.

On the 20th of September, 1875, the award of the arbitrator was filed in this cause, which stated “that the undersigned arbitrator, to whom the parties to this cause had submitted the matter in dispute, involving the title to the Isaac Sanders survey of one thousand two hundred and eighty acres of land, awarded that John W. Myers shall have seven hundred and fifty acres of said land according to quality, and the said James Easterwood shall release to the said Myers all right, title and interest therein, and the said Easterwood shall have and recover five hundred and thirty acres of said land, and the said Myers shall release to said Easterwood all right, title and interest therein, and each party shall execute and deliver to the other their deeds of release in accordance with the above award. Signed by T. D. Lorance.”

Easterwood filed his motion alleging that the parties had, on the 11th day of September, 1875, submitted the matters in dispute to arbitration by their agreement in writing, as was by the statute in such cases made and provided; that said agreement was filed with the district clerk, and that he appointed the 18th of September, 1875, for the trial of said cause by arbitration, and on said day that the same was decided by arbitration; and plaintiff exhibited the agreement and the award made under same, and prayed the court that the same be made the judgment of the court; that plaintiff recover five hundred and thirty acres of the land according to quality, and that seven hundred and fifty acres be allotted to defendant. On the same day defendant filed his answer to said motion, and on the 28th of December, 1875, defendant filed his motion to set aside the submission and award.

The charge of the court submitted two issues to the jury:

1st. Whether the parties had submitted the matters in dispute to an arbitration, and whether the arbitrator had made an award, and to find for the plaintiff the land awarded to him by said award; that if they should find for the plaintiff under the award, then they should return a verdict without looking further; but should they fail to find under above instructions as to the award, then they were instructed to inquire.

2d. As to the title of plaintiff to the entire tract of land.

The jury returned a verdict for the plaintiff for five hundred and thirty acres of the land in dispute. The judgment of the court was rendered according to the finding of the jury, a writ of possession was awarded plaintiff, and commissioners were appointed to divide the land.

Amzi Bradshaw, for appellant, cited: Owens v. Withee, 3 Tex., 161;Aspley v. Thomas, 17 Tex., 220; also 9 Tex., 44;Forshey v. R. R. Co., 16 Tex., 533; Morse on Arb., 43, 69, 81, 166, 257-8, 513-603, and cases cited; also S. C. R. R. Co. v. Moore, 28 Ga., 398;French v. New, 20 Barb., 481;Tyler v. Dyer, 13 Me., 41;Benjamine v. Benjamine, 5 Watts & S., 562; Fink v. Fink, 8 Clark (Iowa), 313; Chaplin v. Overseers of the Poor, 30 Am. Dec., 504;Cox v. Jogger, 14 Am. Dec., 522;Jones v. Boston Mill Corp., 16 Am. Dec.,...