#### ALFRED THOMPSON AND OTHERS *against*JOHN DEANS.

Where a dispute existed between the owners of contiguous lands as to their dividing lines, and it was agreed in writing to submit the matter to arbitration, and to *stand to and abide by such Knes¡*as should be *mad'e■ and laid down by the referees,*and the arbitrators made- an award designating dividing lines between the parties, which the reeusact party failed to show were erroneous, it was *held*a proper ease for the Court to decree a specific performance.

Cause removed from the Court of Equity of Nash county.

This was a bill to compel a specific performance of an award. John Mathis, Alfred Thompson, one of the plaintiffs, and the defendant owned contiguous lands, and a disagreement having arisen among the three as to the dividing lines between them, they entered into a penal obligation, dated l&th of April, 1851, conditioned as follows: “ Whereas there *23is a dispute between tbe said John Deans, Alfred Thompson and John Mathis, in regard to the dividing lines of their lands, and the said parties have referred the said dispute to Exum L. Curl, Jesse Beal and A. B. Baines, to make lines and settle said dispute; now, therefore, if the above bounden John Deans, Alfred Thompson and John Mathis, their heirs, executors and assigns, shall stand to and abide by the said lines, as they shall be made and laid down by the said referees, and let each peaceably enjoy the same, as allotted to him by the said referees, then the above obligation to be void, otherwise, to remain in full force and effect.” Signed and sealed by the parties mentioned. The abitratore met on the day the submission bond was signed, and having all the parties present, went upon the premises and surveyed such lines of the several tracts as at all concerned the controversy, and examined such deeds and living witnesses as were produced. The matters in controversy may be illustrated by the following diagram:

The defendant had insisted that the true boundary of his *24land was as represented by the letters G, F, D, whereas, the plaintiffs said it was G, E, C, so that the land in dispute is that embraced in the area E, F, D, C, of which the spaces A, B, H, and E, F, A, B, were claimed by Thompson, and the rest of it by Mathis.

After examining into the matter, the arbitrators made up and delivered to the parties the following award: Know all men by these presents that we, the undersigned referees, having been called on by John Deans, Alfred Thompson and John Mathis, to settle a dispute in regard to the lines of land between them, and having met on said lands on 19th day of April, .1851, do agree to the following boundaries viz, beginning at a lightwood pine (G), Dean’s corner in A. Thompson’s line, then east ISO poles to a stake, Dean’s corner in Thompson’s line (F), then North to the original, Thomas Horne line (A), then along the said line West to a stake, on the West side of the Great Branch, Thompson’s corner in Dean’s line (B), thence North, a line of marked trees to a stake, Dean’s corner, in Mathis line (0).”

By which award, it will be seen, that Deans obtained of Thompson the area E, F, A, B, which is about seven acres, and Thompson and Mathis obtained of the land claimed by Deans, the space B, A, D, C, about forty acres. It appears from the testimony, that on the delivery of this award each party took possession according to the lines fixed upon by the arbitrators, and in that manner continued to hold until some time after the death of John Mathis, when the defendant entered upon the territory embraced in the figure B, A, D, 0, and still holds the same in his possession. Also, that he continues in possession of the land E, F, A, B, surrendered to him by the award. The suit was brought by Thompson who offered to make title to the part taken from his claim, and by the children and heirs at law of Mathis, and the prayer is for a specific performance of the award by making deeds, &c., and for an injunction. The defendant in his answer insists that there is a palpable mistake in the award of the arbitrators, and that it would be hard and unconscionable for the *25plaintiffs to have a specific execution of it. The proofs taken in the case are voluminous and contradictory, but it seems that the arbitrators based their judgment chiefly on the fact that the lines adopted by them were old marked lines, corresponding in date with the deeds of the parties, and there were no marks on the lines rejected by them. The cause was heard upon bill, answer, proofs and exhibits.

*JB. F. Moore*and *Dortch,*for' the plaintiffs.

*Miller, Fowle*and *Rogers,*for the defendant.

MaNly, J.

The bill is to enforce an award by compelling a specific execution. The submission appears to be by agreement *in ¡pais,*and by reference to it, it is found the arbitrators are authorised to make lines and settle the dispute then existing between the parties in regard to their dividing lines; and they bind themselves to abide by such lines as shall be made and laid down by such referees, and to allow each other peaceably to enjoy the same as alloted. The referees laid down a line of division, and the parties, thereupon, adjusted their respective possessions in conformity with the same.

After two or three years acquiescence by all concerned, the defendant, Deans, took possession again of a parcel of the land which he had abandoned under the award, and this bill is brought to compel him to abide by the lines established, and to allow each peaceably to enjoy the part allotted to him.

Ve do not perceive why this object may not be accomplished by the bill. By the submission, the parties contracted to do what the arbitrators might direct. "When the latter, therefore, made their decision, the submission and award together, amounted to an agreement; and as this agreement is plainly executory in its nature, it is in substance the case of an executory agreement under a penalty. The enforcement of such an agreement, specifically, is a familiar subject of equity jurisdiction. In Kussell on Arbitrators 525, it is said, a bill will lie to enforce a specific performance of an award, whenever the matter directed by it is such that it would be *26enforced by the court as an agreement or contract — especially when the .award be to do any thing in respeet to lands.— This is confirmatory of our view.

The award, it will be seen, does not specially require the parties to release or convey to each other, but this, we think, follows from the making of the line by the arbitrators, taken in connection with the terms of the submission. The parties agree to end all disputes by abiding by the line to be made, and allowing each other to enjoy quietly, in conformity with the line. It is a private submission, and we think it clear, by the terms of it, that the arbitrament is conclusive as to the rights of the parties to the land in controversy between them; and, as the award does not convey the title, it would seem to be manifestly intended that their rights should be made effectual by conveyances, and that thus, all dispute might be ended. In the case of *Carter v. Sams,*4 Dev. and Bat. 182, the arbitrators agreed that defendant should pay all costs, and they assessed plaintiff’s damages to $100. It was held that the award was entitled to a liberal construction, and that it should be intended that the defendant was to pay the $100 to the plaintiff. The cases are similar. In neither, can the declared rights of the parties be made effectual, except by a construction according to a reasonable intendment.

This is what is called certainty to a common intent,” in the definitions given of the degrees of certainty required in law proceedings; and this degree is all that is required in an award; according to what is said in the case of *Carter*v. *Sams,*above referred to.

The only other enquiry which arises upon the pleadings and proofs in the cause, is whether the award be such as the Court will enforce specifically: The parties recite in their submission bond, that a dispute existed between them as to the division lines of their lands, and they refer it to the arbitrators to make lines. Upon examination of the proofs in connection with the terms of this submission, the propriety of the plenary power given the arbitrators is apparent. The boundaries are left in great doubt, after the voluminous proofs *27now on file are all considered ; so far, therefore, from its being hard, nnconscientious or fraudulent, the arbitrament at the time, and upon the terms agreed on, was a measure of wisdom for all parties. There is nothing brought forward in the proofs which, regarding the award as of no higher obligation than a contract, would prevent a court of equity from ordering its specific execution.

A decree may be drawn, directing the parties to execute deeds of release to each other for the parcels of land awarded to each by the division lines established by the arbitrators.

Per Curiam;, Decree accordingly.