#### DEN ON DEM. of JOHN HARDIN *vs.*FRANCIS BEATY and DOWELL HOGUE.

Dec. 1839

If an action of ejectment be, with the consent of the parties, by a rule of court, referred to certain arbitrators, and they make an award that the defendant was guilty of the trespass and ejectment, and shall pay nominal damages hnd costs, upon which a judgment is rendered accordingly, and the platntiff’s lessor put into possession of-the. term by a writ for that purpose, the defendant is not estopped by such award and judgment from afterwards setting up title to the premises; because, in the action of ejectment, the *right*to the land is not put in issue and determined, and a reference of the suit by a rule of court to . arbitrators, chosen by the parties, cannot bring before them more than was in issue before the court.

Ejectment tried at Rutherford, on the last circuit, before his honor Judge Peabson.

The defendant Beatty, admitted that he was in possession of the premises, as the tenant of the other defendant Hogue, who was admitted to defend as landlord. The lessor of the plaintiff, and the defendant Hogue, both claimed under sheriff’s deeds, made upon sales, under executions against Francis Beaty, but the deed under which Hardin, the plaintiff’s lessor claimed, was, prior to that, to one Adam Beaty, under which the defendant Hogue claimed. It was contended however, by the latter, that Hardin was estopped from setting up title against him, because his grantor, after the sheriff’s sale under which he claimed, had brought an action of ejectment against Hardin, which by a rule of court was referred to certain arbitrators, who made their award that the said Hardin was guilty of the trespass and ejectment, and that he should pay six and a quarter cents damage, and costs, which award being returned to court, and judgment rendered pursuant thereto, a writ of possession was issued, and the defendant, Hogue’s grantor, put into possession. His Honor intimated an opinion, “that when an action of ejectment- was-decided by arbitration, it differed from a case decided in the usual way, and the parties and their privies 'were concluded from disputing the title afterwards.” The plaintiff’s lessor, in submission to this opinion, suffered a nonsuit and appealed.

*382No counsel appeared for the lessor of the plaintiff in this cour(;-

*Hoke*for the defendant.

Gaston, Judge.

_ . We do not concur in the opinion that lessor of the plaintiff is concluded by the award, or the judgment thereon, from setting up title to the premises described in the declaration. That opinion, was. no doubt, founded upon the doctrine sanctioned in the case ot *Doe on*demise, *Morris and others*v. *Rosser*—3rd East. 15, which has been followed out by other adjudications of respectable courts, and is recognised in elementary treatises of great general correctness. It is not necessary for us to examine whether this doctrine is a part of the law of this State, because we believe, that correctly understood, it does not apply to the case before us. In the leading case above referred to, it was decided that where the lessor of the plaintiff and the defendant in ejectment had before *submitted*their right to the land to the decision *of*an arbitrator who had awarded in favour of the lessor, the award concludes the defendant from disputing the lessor’s title in an action of ejectment; for, although, say the court, “the award cannot have the operation of conveying the land, yet there is no reason why the defendant may not conclude himself by his own agreement, from disputing the title of the lessor in ejectment. The parties consented that the award of the arbitrator, chosen by themselves, should be conclusive as to the right to the land in controversy between them, and this is sufficient to bind them in an action of ejectment.” To bring the award in question, within the operation of the principles thus asserted, it must appear that the parties had consented that the award of the arbitrators should be conclusive as to the right to the land, and that the arbitrators had definitively adjudged in whom was the right. To us it seems that neither of these is shewn here.. The submission and the award are of record; and by that record it appears that heretofore an action of ejectment for the same land had been instituted on the demise of one Adam Beatty, under whom the defendant, Hogue, claims as purchaser; that to this action Hardin, the lessor of the now plaintiff, was admitted a defendant, upon *383entering into the common rule and pleading not guilty; that under a rule of Court, by consent of the parties, there was a reference to certain referees or arbitrators; that they returned an award finding Hardin guilty of the trespass, and assessing the plaintiffs damages to 6 1-4 cents and costs; and that a judgment was rendered by the Court pursuant to this award. The submission therefore embraced the matter, and that only, which the pleadings of the parties brought into contestation before the Court — and the award of the arbitrators decided and professed to decide no more than would be decided by a judgment of the Court, that the plaintiff should recover damages and costs for the trespass complained of. Now it is perfectly settled that the pleadings in an action of ejectment do not put directly in issue the right to the land; and a judgment in favour of the plaintiff, which always includes damages and costs and generally also a recovery of his term, does not determine the right to the land. We are therefore unable to perceive how a mere reference of a controversy pending before the regular tribunal of justice, to one chosen by the parties, can bring before the latter more than was in issue in the former — or how a judgment of the latter thereupon can have a more extensive effect than the same judgment would have had, if rendered in the former. The submission and the award must be explained by the nature of the action; and “every estoppel, because it concludeth a man to allege the truth, must be certain to every intent, and is not to be taken by argument or inference.” Co. Lit. 352 b.

The judgment of the Superior Court must be reversed, and a *venire ele novo*awarded.

Pee. Curiam. Judgment reversed.