[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 186 Some of the points which have been urged on the part of the defendants might be worthy of a serious consideration, if they had not taken possession of the land in question for the purposes of their road, and continued in the occupation, so far as we know, to the present time. It was suggested on the argument that the company took possession as wrongdoers; that their continued occupation was but a continuance of the wrong; and on this ground that the question whether the award ought to be specifically enforced must be determined wholly by other considerations. To this it must be answered that the facts are not so found in the case made for reviewing the trial. There is indeed no statement of the conclusions of fact found by the judge who tried the cause, and therefore nothing can be intended or presumed against the correctness of his final decision. On looking into the evidence it appears that shortly before the award was made, the plaintiffs forbid the workmen of the company from going on to the land until it was paid for; that this prohibition was complied with until after the award was published, when the company resumed their operations, and from that time continuously occupied the premises. A reasonable interpretation of this conduct is, that the defendants on their part intended and expected to perform the award by paying to the plaintiffs the sum therein specified on receiving a conveyance of the land. The inference which the judge derived from these circumstances is not stated, and the plaintiffs therefore, in support of the judgment, are entitled to the one which is most favorable to them. I think they have *Page 187 a right now to say that the railroad company took and continued the possession of this land with a direct reference to the submission and award by which the price and damages were determined. That conclusion may have been, and probably was, the controlling one which influenced the course of the trial and the final decision.
Viewing the case from this point there was no error in the rulings at the trial, or in pronouncing the judgment. The defendants were not entitled to a nonsuit, as they claimed, on the ground that an incumbrance existed against the land at the time the deed was tendered to them. The title, it is true, was to be clear of incumbrance, and if the defendants had not themselves acted upon the award by taking possession of the premises, it may be that they could resist a specific performance on the ground that the condition precedent was not strictly performed on the part of the plaintiffs. Such a question need not be examined. The incumbrance was satisfied eight days after the deed was tendered, and although this was after the time when a clear title was to have been made, according to the terms of the submission, yet the defendants by their own conduct lost the right of insisting upon such a ground of defence. If they were not content with the title offered to them, they should have specified the objection and given up the possession of the land.
And a similar answer must be given to another objection prominently urged on the argument before us. The defendants offered to show that the arbitrators allowed to be proved, and took into consideration, one or more items not embraced in the submission, and which could not legally form any part of the sum to be paid to the plaintiffs as a compensation for their land. It appears that both parties attended and were heard before the arbitrators; and the fact is not found, nor is it pretended, that the defendants took and retained possession of the land in ignorance of the irregularities which they offered to prove. In such circumstances they cannot reject the award, even if it could be otherwise impeached for misconduct or excess of power. If they intended to deny the validity of the decision, they should have kept away from the premises or proceeded in some other *Page 188 manner to acquire the title. They did neither of these things; and having taken and appropriated the land with no other right to it than such as they took under the submission and award, they are, on the plainest principles, estopped from interposing a defence of this nature.
I think the judgment should be affirmed.
JOHNSON, Ch. J., DENIO, ALLEN and GRAY, Js., concurred.