Smith v. Bullock , 16 Vt. 592 ( 1844 )

The opinion of the court was delivered by

Redeield, J.

It was long since decided in this State, that a mere parol agreement, (not in writing,) in regard to the division line of adjoining proprietors, unless followed by an acquiescence of fifteen years, was not conclusive between the parties. Campbell v. Bateman, 2 Aik. 177. White v. Everest, 1 Vt. 181. In the latter case it seems to have been considered by the court that such an agreement, acquiesced in for a less term than fifteen years, was evidence to go to the jury, as tending to show the true boundary. This rule is contrary to that which obtains in many of the other States. Gray v. Berry, 9 N. H. Rep. 473; so, also, Sawyer v. Fellows, 6 N. H. Rep. 107. Rockwell v. Adams, 7 Cow. 761.

But the doctrine of the inconclusiveness of such argeements, unless acquiesced in for fifteen years, was expressly recognized on the present circuit, in the last County. In Windham County, too, it was held, [Akely v. Akely, ante, page 450] that an award on submission under seal, in regard to the title of real estate, was conclusive, and that the court of chancery would decree a conveyance according to the award. That case was decided mainly upon the ground that a contract by submission and award was to be put on the same ground as any other contract in the same form, — the arbitrators being but the agents of the parties for carrying into effect the intention of the parties.

With that view applied to this case, and the former decisions in this State, it is impossible to consider an award on an oral submission as conclusive, if, indeed, it is of any validity. It is impossible to consider such a contract as not within the statute of frauds. The decisions are to that effect in Massachusetts, Maine and Connecticut; and no ease is found in the English Reports recognizing an award by parol as conclusive upon the title to real estate.

Judgment reversed, and cause remanded for a new trial.