Olcott v. Wood

By the Court, Willard, P. J.

The controversy embraced in the chancery suits was not respecting the claim of either party to any estate in fee or for life to real estate, which is forbidden by the statute to be submitted to arbitration. (2 R. S. 541, § 2.) The title to the Bew lands was admitted by the pleadings to be in Wood. The claim of the plaintiff was in the nature of a bill for a specific performance of an agreement set up in the bill. He claimed that by that contract he was entitled to a conveyance of two-thirds of these lands, or a compensation in damages in lieu thereof. The cross-bill conceded the title to the Bingham lands to be in Olcott; and Wood claimed that by contract he was entitled to one-third of those lands, and he claimed damages only for the breach of that contract. As the cross-bill was merely a defense to the original bill, the controversy became narrowed down to this; which party had sustained the most damages by reason of the several breaches of agreement, if the latter was shown to have been broken.

The proof sustains the issue on the part of the plaintiff. Here was no submission respecting the title to lands. There was nothing in issue in the chancery suits, that could have been redressed by an ejectment, writ of right, or any of the actions for the recovery of real estate. The matter in controversy savored of the personalty, and the wrongs sought to be redressed could be, and were, appropriately compensated by damages.

The courts have allowed the boundary to lands to be determined by arbitration. (Sellick v. Addams, 15 John. 197. Doe v. Rosser, 3 East, 15. Robertson v. McNiel, 12 Wend. 578.) A decision on the question of boundary ma,y indirectly conclude the parties as to disputed land. Yet in such cases the abstract question of title is not in issue. Bach concedes to the other the title to his own lot, and the only question is where is the line by which they are divided.

The estate in land, which is forbidden to be submitted to arbitration is an estate in fee or for life. (2 R. S. 541, § 2.) Claims to an interest in lands for a term of years, controversies respecting the partition of lands between joint tenants and tenants in common, or concerning the boundaries of land, or the admeasurement of dower, may be submitted. Some of these could not have been the subject of arbitration at common law.

The learned judge before whom this cause was tried, placed his decision upon the ground that the claim of the plaintiff was to an equitable title to the fee of the Hew lands. And he was of opinion that the statute inhibited the submitting to arbitration of a claim to an equitable fee, as well as a claim to the legal fee. It is not necessary to controvert that proposition. The plaintiff in the original cause did not claim an equitable fee. The fee was conceded to, be in another, and was not in dispute. A party who seeks the specific performance of an agreement to convey lands, or damages in lieu of such performance, is not making a claim to an estate in fee, within the meaning of the statute; he is merely seeking the performance of an agreement, or a compensation, if such agreement cannot be performed.

[Franklin General Term, July 5, 1852.

Willard, Band, Cady and C. L¡. Mien, Justices.]

We think the nonsuit was improperly granted, and should be set aside and a new trial ordered, with costs to abide the event.