Wade v. Powell

By the Court.

Lyon, J.,

delivering the opinion.

James D. Erwin, the father of Mrs. Sarah Powell, the complainant in this Bill, on the first day of March, 1849, conveyed to the defendant in the Bill, in trust for Mrs. Sarah Powell and the wife of Jacob S. P. Powell, thirty negroes. The defendant accepted the trust and entered upon the performance of its duties. Subsequently, and on the 7th day of March, 1849, Jacob S. P. Powell conveyed to the defendant, Wade, seven negroes, in consideration of $2,000; afterwards, and about the last of March, 1849, one Robert Martin conveyed to defendant fifteen negroes, in consideration of $3,100 paid him by defendant therefor. These fifteen negroes had been, previously,, the property of Jacob S. P. Powell, but had been sold at .Sheriff’s sale, as the property of Powell, and bid off by Martin. This $3,100, paid by defendant for the negroes, seems to have been the amount that Martin had paid for the negroes at Sheriff’s sale, and defendant advanced him the money and took the title to the negroes, for the benefit of Powell, so- that Powell was to- have the negroes when this advance was reimbursed, by him, to Wade. On the nth April, 1849, the defendant, Wade, entered into an agreement with Jacob S. P. Powell, in respect to these two last lots of negroes, in which the purchase of them by Wade is recited, and Wade agrees to let Powell take possession and have the use of the negroes, he paying interest on the amount then due by him to Wade, which is stated at $5,800; and whenever all that amount, principal and interest, should be paid, the defendant agreed to deed and settle all of said negroes and their issue and increase’ as the said Jacob S. P. Powell should name. Now, -it will be observed, up to .this time, that the complainant had no- title, or claim, either equitable or otherwise, to these negroes, or any part thereof; but, so far as they were concerned, and the rights and debts growing out of the several advances, conveyances and-agreement, were all between the defendant Wade and Jacob S. P. Powell. The negroes of Mrs. Powell, mentioned in her father’s deed for her use, were not involved in any of these transactions, advances or liabilities.

In January, 1851, defendant and Powell make a new arrangement, in respect to those negroes embraced in the agreement of the nth of April, 1849, by which that agreement was cancelled, and defendant took eleven of the negroes and allowed Powell credit for them, at a price agreed upon between the parties. At that .time there appears to.have been a full settlement between them, of all matters, Wade allowing Powell credit for all that he had received from, him, in every form or shape, and charging him with all advances on account of these ■negroes, advances made for support of family, purchases made for them, etc., and debts due by Powell to him otherwise; and after deducting from such balance, found then to be due by Powell to Wade, the price agreed upon for the eleven negroes, there was left still a balance due to Wade, the defendant, of $3,698. As to his balance, and the remaining negroes, Powell and Wade agree, that Powell have the thirteen negroes remaining, stating their names, and if he pays the said sum of $3,698, then due to Wade, at the times agreed on in the written agreement, that the said negroes shall be Sarah A. Powell's; and if he fails to make any of the payments, Wade to1 collect the whole amount out of the negroes. This is the first time the name of the complainant is mentioned in connection with these negroes. As to the negroes retained by Wade in that settlement, she never did have any connection with, in any way whatever, and, therefore, she could not call on the defendant to account as to them, or their hire, and her whole claim or interest in the remaining twelve depended wholly upon the payment to the defendant of the amount due on the negroes of $3,698; without the payment of that sum, she had no title to the negroes.

On the 4th of November, 1851, the defendant enters into a new agreement, and this time the agreement is directly with the complainant, and Jacob S. P. Powell is a witness, in which it is stated that A'Vade, the defendant, owns the thirteen negroes mentioned in the last agreement, and he agrees that complainant may work them with the trust negroes (those she derived from her father), by paying to defendant $500 on the xst of January, 1852, and $2,700 in five annual installments, the interest to be paid annually — in all $3,200 — and if the said Sarah A. Powell paid said amounts, then the negroes to be hers, as the rest of her property is; if she does not, then the agreement to be null and void, and defendant at liberty to make his money out of the negroes.

The parties subsequently, on the 7th of February, 1853, agreed, that Wade would take a tract or settlement of land, in payment of the balance, provided it was delivered to him by the 1st of January, 1854. This was not done, but the land was sold before the time to some one else, and the debt due to Wade on the negroes remained as it was stated in the agreement of the 4th of November, 1851. In addition to this debt, defendant accepted and paid a draft drawn for the benefit of the trust for $1,012.64. He also bought a note on Jacob S. P. Powell for about $2,000, for the sum of $400. These are the state of accounts and dealing between the parties as expressed by their several written agreements, as well as I can state them, at the time the litigation commenced between them. The whole of which, in' detail, commencing at the beginning and coming down to the litigation, including all the different suits between the parties and the subject involved, were referred to arbitration “in order to settle the cases and all matters in dispute between the parties,” which agreement was made “or the basis of a compromise of disputes, for the putting cm end to litigationAnd to effect this very desirable object, the defendant waived, for that purpose, all past settlements, brought Ijack all the negroes that he had bought from Powell, and put them into the possession of the arbitrators. The arbitrators selected an umpire, went into' an investigation, agreed upon an award, reported it to the Court, and it was made the Judgment of the Court. The complainant filed this Bill to review that award and judgment, and reverse and vacate it on various grounds of alleged error, which I will take up and dispose of in the order they are stated in the bill. Before considering the grounds of error, stated in .he bill, I will notice a ground of error that does not appear in the Reporter’s statement:

1. The defendant plead the award specially in bar of the complainant’s right to relief. That is, that the award so made was not the subject of review by this Court. The Court below, on demurrer to that plea, overruled it; to which defendant excepted. A¥e are clear, that the award and judgment made in this case on this agreement and rule of reference is not the subject of review, unless for fraud, which is not charged in this bill, for the reason that the tribunal that made this judgment or award, was of the appointment of the parties to whom they had referred all matters between themselves, to be determined and settled according to their understanding of what is right and proper between the litigants. Such a judgment, so made, a Court of Equity has no power to review and correct its errors, if there be any, for the parties have agreed to abide by it. But as it was not necessary to put our judgment in this case on that ground, we did not do- so-.

2. The first ground of alleged error is, “that the defendant and the Solicitors of the defendant agreed to and did make the reference, without the knowledge, authority, approbation or consent of complainant, and upon a basis unknown to her and at variance with her wishes.” This is the charge, and, for the purpose of this motion, must be considered as true, although it is denied by a portion of her Solicitors in the most emphatic terms; and we must say that the charge is a most extraordinary one, when it is understood that some of •the negroes were taken from her possession and carried to the place where the arbitration was had, for that purpose only, and her husband and, I believe,.her son, then at the arbitration as witnesses, and not one word heard at that time by way of objection from her. Be that as it may, we hold that, taking the charge as true, the fact is not such error as will avoid the judgment or award. It is within the scope of a Solicitor’s or Attorney’s power and duties to refer the matters in dispute or involved in litigation, which have been- confided to their skill and management by their client, to referees or arbitrators, under the sanction and approval of the Court, for adjustment or arbitration, without the consent of his client. Watson on Awards, 49. Caldwell on Awards, 29 to 33. Kidd on Awards, 45 and 46. 1 Dall. 642. McCord Ch. R. 406. Billing on Awards, 52. Filmer vs. Delmer, 3d Taunton, 486. And why should not this be so? An Attorney may confess a judgment against his client, and this involves everything.

3. The next error alleged is, that the award was- only made upon the separate matters between her husband and the defendant, and did not touch the matters involved in the bill she had filed. This might be so, and no. error, for the bill does not show how that fact prejudiced her rights. But it is not so, as the award itself shows. If the defendant had a right or interest that was not fully considered and settled by this award, and most favorably for the complainant, as I shall endeavor to show in the conclusion, we' have been unable to find it, and the complainant has not thought proper to point it out.

4. A third error charged is, that Janies Edmondson was only a next friend, and had no sufficient right or authority to sign and agree to said submission and basis of reference. That he did not sign it was not error, but strengthens the act of the Attorneys and Solicitors. The joining of the two, we think, made the agreement perfect. We think it a little strange that the complainant should make the violation of his duty and her right, by the next friend, as a ground for setting aside the award; and, to do so, makes her appeal through the same person as next friend. If he committed such gross breach of faith and duty to her, she ought to have withdrawn her confidence.

5. A fourth ground of error is, that the arbitrators exceeded their powers under the rule of reference, by settling their own fees. If this was a good ground, it could only be to that extent- — not to vacate the whole award. We do not think it is error. The Statute of the State, providing for these arbitrations, gives to the arbitrators power to settle their fees; and, alhough this reference was not made under that Statute, we think it a good rule, and ought to be adopted and enforced by the Courts in arbitrations like this, outside of that Statute, as the sense of the law on that subject.

6. The next grounds of error are, that the arbitrators transferred sixteen of her slaves to defendant to pay certain damages or accounts, pretended or real, which the arbitrators found to be due and owing by her husband, Jacob S. P. Powell, individually, to the said defendant, and the same was in violation of the- terms in which said negroes, vested in her, that they should not be made subject to- the debts of her husband. In making this charge, the complainant gives the names of the negroes and the title under which she holds them, referring to the agreements- between the defendant and her husband, and herself, which I have heretofore stated, and making the exhibits a part of the charge. Take the whole charge together and it disproves itself. Not one of the negroes so transferred was the property of the complainant, nor subject to the trust or restrictions contained in the deed from James D. Erwin, her father, to her. On the contrary, the legal title to every one of these negroes was actually in. the defendant, and was to continue in him. until all the advances made by him for the negroes of principal and interest, were fully paid off, and in case it was not, that he should make the money out of the negroes; so that the arbitrators, instead of taking her negroes, only transferred to and vested in the defendant his own negroes, and at prices that were never contemplated when these agreements were made. There was no error in this.

Another ground of error is, that no account was taken by the arbitrators, in the award, of the hire and labor of the negroes of complainant when used by defendant. It would be a sufficient answer to this ground that the bill of review does not state that it was made to appear to the arbitrators that anything was due to complainant on this account.' But we do not choose to meet it in that way. The award shows on its face that credit was given for every dollar of hire due by the defendant, and in such a way that complainant got the benefit of it to her separate use.

7. The next ground is, that the arbitrators allowed to defendant compound interest; how, the bill does not show; but the award shows that the rule of computing interest, adopted by the arbitrators, was that prescribed by Statute — that is, to calculate interest on the principal up to the time a credit is allowed; and if the credit exceeds the interest due up to that time, to add principal and interest together, deduct the credit from, the sum1 total, and add interest on the balance to the next credit, etc., but when the interest exceeds the credit, the sums were not added, but the interest continued on the balance, until a credit was reached that did exceed all interest, and then addition and deduction were made. This we understand to be the rule of computing interest under the Statute, but this the complainant calls compounding.

8. The next ground of alleged error is, that no copy of the award was furnished to the complainant, or her next friend, as was required by the arbitration act of 1856. To this we reply, that the award was not made under or in accordance with that Act, and is not necessarily to be governed by its provisions, especially in immaterial matters like that.

9. Another ground of error is, that the children of complainant, who are remaindermen in said deed, were not made parties to said award. If they have any interest requiring representation in the matters in controversy, we have not been able to see it.

10. The next and last ground of alleged error is, that the arbitrators examined the defendant and her husband as witnessess in said investigations. We see no error in this. Besides, complainant does not show that either of them testified to any fact that was untrue or prejudicial to her interest.

11. We have thus gone over the whole of the alleged errors, and find that the arbitrators, even judging all their acts by the rules of law, as we would that of a Court, and there has been no error committed that could authorize this Court to review and reverse that judgment. But,, looking at .the case outside of the strict rules of law, and outside of the necessity and importance of avoiding the mass of litigations that this award effects, and solely with reference to the interests of the complainant, ought this settlement of the controversy to be disturbed? When the defendant accepted the trust, complainant had nothing but the thirty negroes; he has received nothing from her, or her separate property, from that time until the present, except the use of a few of the negroes included in her father’s deed, during the years 1849 and 1850, and nothing from any other source, except some $304 from her husband, which was passed at once to his credit. The defendant, in the meantime, advanced, out of his own means, largely for the support of the family of the complainant; bought and furnished in the same way, with his own means, and when the said Powell owed him largely, for a settlement of land for which he paid some $2,500; furnished them with everything in the way of supplies for stocking and carrying on a farm — all of which complainant has now to her separate use; and, in addition to all this, she gets by the settlement some seven or eight negroes added to her separate estate, all growing put of the advances made by defendant, and which he lay out of year after year, paying hire on the negroes for which he held the title, and which he had bought and paid for. And all the defendant gets in the return is simple interest on the advancement. The complainant’s separate estate has been largely benefited, • and the defendant gets nothing.

Take another view. Suppose we should vacate the award and send the parties back to settle their rights in the Courts, what would be the result ? The title of defendant to the eleven negroes, that he took absolutely from Powell in January, 1851, would be obliged to be sustained: there can not be a shadow of pretence for setting it aside. Mrs. Powell had not the slightest interest in them nor never had, and as to Powell, there could be no excuse for setting it aside by him. Then the charge of the $3,200, which was admitted to be due by complainant on 1st January, 1852, on the other thirteen- negroes, with interest, would necessarily have to be paid out of them, together with the $1,012, paid by defendant since for this trust. When these charges should be paid out of the thirteen, how many of them would be left? Instead of getting seven or eight, ás she has, in all probability she would have fallen in debt. Instead of being injured by this award, the cóm-plainant has been largely benefited. She is the last person to apply to the Court to set it aside. There was no error, and the judgment of the Court below, overruling the demurrer, must be reversed and the bill dismissed.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed; upon the ground that the Court erred in overruling the demurrer to the plaintiff’s bill. .The Court should have sustained the demurrer, and dismissed the bill.