Bubier v. Bubier

The opinion of the Court was drawn up by

Whitman C. J.

This Court has power, under the Rev. Stat. (c. 96, <§> 10) to hear and determine, as a court of equity, “ all suits to compel the specific performance of contracts in writing,” “when the parties have not a plain and adequate remedy at law.” In cases presented to us under this provision we must see, that the contract is in writing, and in force as such. If merged in a judgment it would no longer be a contract in writing, within the purview of the statute. It should appear, also, that the plaintiff had not a plain and adequate remedy at law. If he has a judgment in his favor, upon the contract in a court of law, he must be regarded as having a plain and adequate remedy upon it. And if the contract be in reference to the personalty, and not to the realty, it is with a few exceptions of a peculiar character, considered that a party has his appropriate remedy at law; and will not be entitled to the aid of a court of equity to enforce the performance of it.

The case here presented has a complication of difficulties. The contract relied upon has reference to both real and personal estate. It originated under, and in connection with, proceedings in a court of law; in a writ of entry upon a title by mortgage; and an agreement to refer that action, by rule of Court, and sundry other matters in controversy between the parties, to arbitrators, who made their award or report to the Court, from which the rule had issued. The Court accepted it; but it is alleged declined to enter up judgment upon it. If the report was such that it could be accepted it is not easy to perceive why judgment should not have been entered up according to it. If it was such that judgment could not have been entered upon it, it is equally incomprehensible, that it should have been accepted. It is this award that the plaintiff seeks to have enforced, upon the ground that it is the result of an agreement in writing, or the terms of an agreement in writing ascertained by an award.

Some doubt has been entertained, whether a court of equity could be resorted to for the purpose of having an award of arbitrators carried into effect; but latterly this doubt seems to have been overcome, so far as it respects awards for the conveyance of real estate. Jones v. Boston Mill Corporation, 4 Pick. 507. It is believed that no decision has gone further than this. The award in the case before us goes further and embraces various other matters, all connected with the conveyance of real estate, so that we could not decree that it should be conveyed, without, at the same time, decreeing the performance of other extraneous matters. Under such circumstances, if there were no other difficulties in the way, we might well be expected to hesitate to proceed in the case.

But the plaintiff has sought his remedy at law; and has there proceeded till he had become apparently entitled to judgment in his favor. The report of the referees, under the rule of Court, having been accepted at his instigation, has placed him in this predicament. If he has been unfortunate in this particular it was of his own seeking. A court of equity cannot be required to step in and relieve him. In Bateman v. Willoe, 1 Schoales & Lefroy, 201, it was remarked by the chancellor, that “ the inattention of parties, in a court of law, can scarcely be made a subject for a court of equity.” And it has often been decided, that courts of equity cannot revise the doings of a court of law, unless they were procured by fraudulent practices. If new matter before unknown to a party has arisen, essentially varying the case as it stood at the time of the decision at law, equity might afford relief, if its jurisdiction were general, or if it were specially conferred by statute, which is not the case iu this State. And courts of general equity jurisdiction may afford relief in some cases in which a court of law is incompetent to do it. But this also is a power not conferred by our statutes, where a court of common law has already taken cognizance of the case. For a court of equity to be called upon to aid a court of law to carry into effect a proceeding pending before it, is believed to be unprecedented; and equally so to carry into effect a judgment which it may have rendered. And for this Court, with its limited equity powers, to do either would be clearly unwarranted.

If the agreement and award under a'rule of Court have gone into judgment, as we should presume had been, or would be the case in this instance, there having been an acceptance of the report, there would be no longer an agreement in writing to be enforced; for both the agreement and award would be merged iu the judgment. No action thereafter at law would lie, either upon the agreement or the award. The judgment would have become the security to be relied upon, and our equity powers, as we have seen, would not authorize us to carry it into effect.

Other difficulties, in the way of the right of the plaintiff to recover, still remain to be considered. If we were authorized to consider the case as exhibiting a simple arbitration and award, and could become satisfied of our power to enforce it, we could not proceed to do so until we had ascertained, that the award was at all points exactly in pursuance of the agreement. The first and principal item in the agreement to refer was the action then pending. Nothing is said about that in the award. Whether it was considered that the plaintiff had or had not a right to recover in that action, does not appear. Again; on looking into the agreement between the parties, it appears that they entered into certain obligations expressly to be performed in a certain event. The referees were to ascertain any balance due, upon an adjustment of all demands between them, from the one party to the other; and prescribe the security to be given therefor. It was not agreed that they should award, that either party should make a conveyance of the real estate to the other, nor that they should determine when, or on what terms, any such conveyance should be made.As to both of these particulars the parties had expressly agreed between themselves; and to this effect, that “ when the payments and securities so required shall be made, the said John shall make and execute a quitclaim deed in fee of said farm.” 1 The payments, or securities therefor, were to be first made; and then it was, and not' till then, that the defendant was to make his deed. Thé ■ arbitrators have proceeded to award “that the said John Bubier, within thirty days after the acceptance of this report by the Court, do make a quitclaim deed of the farm,” &c. and then they proceed to award, that, “ provided the security hereinafter required shall be given on the, part of the said Samuel, he (the said John) shall peaceably surrender up the possession of the same (farm,) on or before the fifteenth day of April next, to the said Samuel.” In the agreement the defendant had agreed to convey, the securities having been first made, -without other specification of time. In the .award the referees undertake to prescribe, that the deed shall be made at a specified time, without any reference to whether the' securities had been made or not; thus varying the terms expressly agreed upon by the parties; and without power delegated to them so to do. No payment has ever been made, or securities given by the said Samuel, or any tender made of either. He has not, therefore, placed himself in a condition to demand a conveyance of the farm. The postscript to the agreement to refer, in which it is said, that all demands were referred, had reference doubtless to the conflicting claims set forth in the recital to the agreement, and cannot be construed to control the express stipulations between the parties, contained in the same agreement, as to what should be done in a certain event.

Viewing this case in every aspect in which it has been presented to us, we are unable to come to the conclusion, that it would be in conformity to the rules incident to equity jurisprudence, that we should afford the relief sought for.

Bill dismissed.