Payne v. Crawford

• Decision Date: 13 April 1892
• Citation: 11 So. 725,97 Ala. 604
• Parties: PAYNE v. CRAWFORD.[1]
• Court: Alabama Supreme Court

11 So. 725

97 Ala. 604

PAYNE v. CRAWFORD.^[1]

Supreme Court of Alabama

April 13, 1892

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Statutory action of ejectment by L. W. Payne against Mary A. Crawford. The parties had made the following submission to arbitration "We, the undersigned, hereby agree and bind ourselves to submit the matter in dispute between us, in reference to the boundary line between our land, to arbitrators, each to select one arbitrator and these to select a third. We furthermore agree and bind ourselves to abide by the decision of said arbitrators." That award was in writing, signed by the arbitrators, and was in the following language "We, the undersigned arbitrators in the case of Sister Mary A. Crawford and Brother L. W. Payne, respecting the disputed line between them, viz., the east and west and north and south line, after examining numerous and reputable witnesses, and retracing the east and west line between the said Crawford and Payne, we are of the opinion that Payne is entitled to the land lying south of the aforesaid line first run by us, beginning at a pine stob about 60 or 70 feet south of the mouth of the lane from Auburn to the colored graveyard, and running six degrees north of east to a sweet gum tree at the northeast corner of said Payne's woodland; thence south along the wire fence of said Payne forming the eastern boundary of said Payne, to the Henry Sills place." At the request of the plaintiff the following written charges were given to the jury: "(1) We ask the court to charge the jury that the fact that the submission for arbitration was in writing is no evidence that the arbitration was not a church arbitration. (2) If the jury find that this arbitration was a church arbitration, then the jury must not consider it at all. (3) If the jury find from the evidence that Mrs. Crawford was in possession of the disputed land, claiming to own it up to the line claimed before Payne took possession of it, and that she held such possession up to the time that Mr. Payne took possession, then she is entitled to recover, whether her paper title covered it or not." The defendant duly excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give the two charges requested by him, which were as follows: "(1) An arbitration may be both a church arbitration and a common-law arbitration. (2) If the parties went into an arbitration as citizens, as well as church members, intending to settle their differences outside of as well as in the church, they could bind themselves thereby as well as if the church had had nothing to do with it." From a judgment for plaintiff, defendant appeals. Reversed.

George P. Harrison, for appellant.

J. M. Chilton, for appellee.

STONE C.J.

There was a demurrer to the complaint, as second amended, because the amendment was not signed by counsel. That amendment consisted simply in a change of the description of one of the pieces of land sued for. The amending clause was intended to be substituted for another, and thereby displace and eliminate the original clause. Carried into effect, the complaint, as amended, would present the signature of counsel, and would be complete. In amendments, such as here made, it would be better to rewrite the count, and cause it to show at a glance how it would read when amended. This would avert confusion and misunderstanding. Our constitutional rule in regard to amending statutes furnishes a safe and simple guide to be followed in such cases. We do not think, however, that a failure to do so in a case like the present is a ground of demurrer.

This is a statutory real action brought by Mary A. Crawford against L. W. Payne, for the recovery of a strip of land lying between their several possessions. Their lands were and are coterminous, and their contention raised the issue whether the strip belonged to the one or the other. The situs of the dividing line was the only subject of litigation, so far as this particular tract was concerned, for neither contended that their asserted titles overlapped each other. Neither asserted claim, save as they severally contended a proper survey and measurement, would show the rightfulness of their several claims. One defense pleaded and relied on by defendant, Payne, was that, before the action was brought, they had, by written agreement, submitted the matter of the disputed boundary to arbitrators, one named by each, with authority to them to name a third; that the two selected arbitrators had agreed on and chosen an umpire, that the arbitrators had acted, having the parties and their witnesses before them; and that they had made a written award, finding that the disputed strip of land was the property of Payne, the defendant. Copies of the agreement of submission and of the award are set forth in the statement of facts. Very many objections were raised to the sufficiency alike of the submission and of the award. Some of these we will proceed to notice. We will premise, however, that this was not a statutory submission. Code 1886, § 3221 et seq. The questions presented must be determined according to the rules of the common law. Brewer v. Bain, 60 Ala. 153.

It is objected to the sufficiency and binding effect of the submission and award that the subject of the contention is not described in such manner as to show what was intended to be submitted, and what was decided. The language they employed was: "We hereby agree and bind ourselves to submit the matter in dispute between us, in reference to the boundary line between our lands, to arbitration." The agreement then continued: "We furthermore agree and bind ourselves to abide by the decision of said arbitrators." This was signed by both parties. The award is very specific, and describes the proper dividing line between them in language that would be sufficient in a deed of conveyance. They give to Payne the land lying south of a dividing line, "beginning at a pine stob about sixty or seventy feet south of the mouth of the lane from Auburn to the colored graveyard, and running six degrees north of east to a sweet gum tree at the northeast corner of said Payne's woodland; thence south along the wire fence of said Payne's woodland, the eastern boundary of said Payne's, to the Henry Sills place." The law favors and encourages the settlement of disputes by arbitration, and neither exacts nor expects technical precision either in the submission or the award. It is enough if certainty to a common intent be observed. We think the descriptions in this case are sufficient to show what was intended, and, with reasonable care and skill, to prevent mistakes. See the many authorities collected in 1 Amer. & Eng. Enc. Law, p. 656, and note 1; Id. p. 699, and note 2.

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