By the Court,
Smith J.We are unable to discover any material error in the proceedings of the court below, either in the instructions given to the jury, or refused to be given.
The question was fairly submitted to the jury, whether or not there was a mutual submission of the matters in controversy be-' tween the parties, to arbitrators; and whether an award was made. The jury have passed upon all the evidence, and have found, and in our opinion rightly, that there was a mutual submission and award, together with the further fact, that the defendant below actually took the property and appropriated it to the use of the company, and it would be extremely unjust to permit the company now to repudiate their own acts, after inducing the plaintiff below to adopt' his conduct accordingly. And the purposes of justice would be equally thwarted if the company were permitted, after having assented to the submission and the award, furnished its form, taken a copy and appropriated the property thereon, to refuse payment on the ground that the award was made by four persons instead of three only. They cannot hold the avails of the award on their part, and refuse its benefits to the other party.
We are also of the opinion that the evidence offered by the defendants below to show the sale from Rau to the plaintiff, fraudulent as against the creditors of Rau, was properly rejected. The defendants did not claim to be creditors. If that sale was void as against the creditors of Rau, it was void as to creditors only. The defendants were not in a condition to question it. It was good and valid as to all the world but the creditors of Rau. Nor did the fact that the defendants claimed under an adverse title under the sale on the execution, render the offer any more competent. The question of fraud could not be tried in that way; especially after the compensation had been agreed upon in the manner shown by the evidence.
Whether or not this was a submission in conformity with the charter of the company, such as to bind all parties, it is not material to inquire. It was competent for the company and the owner of land to be taken, to agree upon-the amount of compensation, and they could adopt that mode, or any other, for the *273purpose of ascertaining the amount? to be paid, and agree to stand to the sum so ascertained. It is not claimed that this was a compulsory submission, for which the charter provides, but a mutual submission, a mode mutually adopted by the company and the owner, by which they should arrive at the amount of compensation for the property to be taken by the former; and when the amount was ascertained, the contract was complete; to be enforced like all other contracts of the kind. No deed was necessary, for when the company should have tendered the amount so agreed upon, the title vested in the company by their charter. In case the plaintiff had not. agreed with the company as to the compensation, and had refused to enter into a voluntary submission, the company were empowered by their charter to cause a compulsory award to be made. In the latter case, the terms of the charter would require to be strictly followed.
But the charter requires the company to agree with the owner of the land, if possible, as to the amount of compensation to be paid; and to that end, we see no reason why the company and the owner may not agree to abide by the estimate or appraisal of one, two, three or any number qf men. If, however, no agreement can be made with the owner, then, and not till then, is the compulsory submission prescribed by the charter to be resorted to.
Nor is the objection that this submission was not in writing, of any validity. It was not a mode of acquiring land or any interest in land. The acquisition was a fixed fact. The company took, and by their charter were authorized to take the lands, and they were required to agree with the owner if possible as to the compensation.
The question between the parties was, not whether the plaintiff should sell and convey to the company, and if so, for what sum; but the company having taken the property by virtue of the power conferred on them by law, what compensation they should make the owner? This has nothing to do_with the statute of frauds. That statute has no application to a case of this kind. The land is taken by virtue of the right of eminent domain delegated by the state to the corporate body. . The mode of ascertaining the amount of compensation to be paid, may be by agreement of the parties, or by compulsory arbitrament. In neither case is it a *274mode of conveyance of the land, or interest in land, and hence the statute of frauds has no application. Eor a like reason, no deed or assignment or transfer was necessary. Whether or not the company would take the property, did not depend upon the amount of compensation that might be agreed upon or awarded. The company took the land, and because they had entered upon and laid their road thereon, the appraisal and payment of compensation became necessary. Having thus located their road upon, and appropriated the lot in question, and agreed with the owner as to the amount of compensation to be paid him, it was not competent for the company to dispute his title on the ground that the sum was fraudulent and void as against the creditors of his vendor. They did not offer to show that they were creditors of Rau, or that they had been evicted by or through any one of such creditors, nor that the title derived through the plaintiff to them had failed, nor that they had obtained a paramount title in any mode prescribed by their charter. Until they do so, every rule of morals and of law requires that they be estopped from denying the award which they aided to procure, to which they assented, and the fruits of which they are now enjoying. The facts in the case were fully submitted to the jury, and we are unable to discover any error which would justify a disturbance of the verdict.
Judgment affirmed.