Govett v. Reed , 4 Yeates 455 ( 1807 )

Tilghman, C. J.

after stating the several facts, delivered the unanimous opinion of the court.

The defendants in support of their exception to the award, contend, that their judgment of the 21st March 1796, was a lien on the interest of Robert Morris; and consequently, that they had a right to receive from the canal company, the whole purchase money agreed to be given by them for the 15 acres and *4611 **9 Perches, which at that time was neither paid to Mor-4 J ris nor placed to his credit in account with the canal company. It appears, that there were on the 21st March 1796, and long before, accounts subsisting between Mr. Morris and the canal company ; but of the state of those accounts we are not well informed.

Several other points were also made and elaborately argued, concerning which, the court think it unnecessary to give an opinion : neither do they mean to intimate any opinion, whether a judgment creditor, whose debtor has contracted to sell his land before the judgment, but had not conveyed it, has any lien on the unpaid purchase money. The present case turns upon its own particular circumstances. For even if the defendants had the lien they contend for, it was in their power to relinquish it.

The referees seem to be of opinion, that they did relinquish it; and the court cannot say, that they were wrong in their conclusion, since it was proved to them, that one of the defendants was present at meetings of the board of managers, when the money now claimed by them, was ordered to be placed to the credit of Robert Morris. If they gave their consent to these orders, it certainly amounted to a waiver of the claim now set up; and if they did not consent, they might have given some evidence of their dissent. This is a fact of which the referees were judges. The principles on which the court proceeds, with regard to exceptions to awards, are well established. They will set aside an award, for error in law, or manifest error in fact. The law, as to the present exception, depends on the fact of the defendant’s having consented to have this money placed to the credit of Robert Morris, in account with the canal company. If the referees were of opinion that such consent was given, the court are so far from thinking they were manifestly wrong, that it appears to them, they decided according to the weight of the evidence.

The judgment of the court is, that the report be confirmed.