Walden v. McKinnon

• Decision Date: 18 June 1908
• Citation: 157 Ala. 291,47 So. 874
• Parties: WALDEN ET AL. v. MCKINNON.
• Court: Alabama Supreme Court

47 So. 874

157 Ala. 291

WALDEN ET AL. v. MCKINNON.

Supreme Court of Alabama

June 18, 1908

Rehearing Denied Dec. 24, 1908.

Appeal from Chancery Court, Geneva County; W. L. Parks, Chancellor.

Bill by A. M. McKinnon against Dutch Walden and others. From the decree, defendants appeal. Reversed and rendered.

E. F Ellsberry, for appellants.

W. O Mulkey, for appellee.

DENSON J.

This bill is filed by the complainant to enforce the specific performance of two contracts in respect to a strip of land described in the bill and alleged to contain eight acres. One of the contracts is alleged to have been made between the complainant and one McLeod, and the other between complainant and one Wyche. McLeod first owned the land, and Wyche succeeded to his title. Another purpose of the bill is to enforce the specific performance of an award of arbitrators rendered upon the submission to them of matters in dispute between the complainant and Dutch Walden, and to enjoin Walden from interfering with complainant or his employés in respect to said strip of land and in respect to a road which complainant claims over said strip of land. McLeod, Wyche, and Walden are made parties respondent to the bill. On final hearing, on the pleadings and proof, the chancellor decreed that the temporary injunction be made perpetual, "so far as the 16-foot roadbed is concerned, which is described in the bill and award," and that "the said A. M. McKinnon and Dutch Walden unite in establishing a fence along said road, on the east side, within 4 feet of the said roadbed." From that decree this appeal has been taken. No relief having been granted against McLeod and Wyche, Walden alone assigns errors.

It is apparent that the decree of the chancellor must be referred to the arbitration and award. Walden claims the title to the strip of land through conveyances of the successive owners back to and including McLeod. In respect to the arbitration and award the bill avers "that the question to be submitted and decided was: What were the rights of each party in and to said strip of land, and what should each party do in order to settle the controversy?" The bill does not aver that the submission was in writing, but shows that the following award was made in writing, to wit: "Geneva, Alabama, April 17, 1906. State of Alabama, Geneva County. After hearing the statements of both parties interested and duly considering same, in justice to all parties, we give A. M. McKinnon a 16-foot roadbed where the present road stands, leading to McKinnon's place, and that there be a fence established along said road on the east side within 4 feet of said roadbed, said fence to be established by both parties, McKinnon and Walden. Jerre Merritt. H. L. Faulk." The proof shows--and it is conceded--that the submission was not in writing, and the point is made that for this reason the award is void.

At common law, generally, a submission to arbitration could be made by parol; but an exception to the rule prevailed when the title to land was involved. This exception has been distinctly recognized and enforced by our decisions. Byrd v. Odem, 9 Ala. 755; Shaw's Case, 125 Ala. 80, 28 So. 390; Brown v. Mize, 119 Ala. 10, 17, 24 So. 453; Smith v. Douglass, 16 Ill. 34; Fort v Allen, 110 N.C. 183, 14 S.E. 685. While it has been decided that the mere matter of locating boundary lines...