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Anderson vs Taylor.

In January, 1866, said plaintiff and said Anderson, as administrator, submitted these suits and the matter of mesne profits to arbitrators who were to decide the same, acting according to law, unless a legal right was waived by either, pending the cause. The submission stated that these lands in the first suit named were “the same as sold by John Pickett, as administrator of James Pickett," and that those in the second suit named, were “for a portion of the same lands bought by John H. Pickett from the estate of James Pickett, and which W. W. Mayo sold to Mrs. Jane Pickett, the grantee of said Polhill, and liable over for same on his warranty of it all."

The two arbitrators selected by the parties, selected their umpire. What proceedings were had before them does not appear by the record, except as hereinafter is stated. In August, 1866, they made an award as follows: “that the plaintiff do recover the portion of land named, possessed by William W. Mayo at his death, except the ten acres of land deeded to Henry Anderson, the said amount land so awarded amounting to three hundred and ninety-four acres. We also decide that the amount received from the estate of John H. Pickett ($1,500 00) sufficient as a rebuttal of rent of said land.” This award was entered upon the minutes of the Court at October Term, 1866.

Anderson filed exceptions to it upon the following grounds: 1st. Because neither he nor his counsel were ever served with a copy of the award before the term, nor within the first three days thereof, and never saw the original till the term. 2d. Because "the evidence before the arbitrators showed that the defendant's intestate, and those under whom he claimed, had been in the quiet, peaceable and uninterrupted and adverse possession of said lands, under color of title, from the time John H. Pickett and William M. Mayo purchased them, on the first day of February, 1842, till the commencement of the suit for them as aforesaid, in 1863, a period over twenty years, during all which time said Mary Jane Taylor had either a guardian or trustee who had the right to sue for said lands." The recovery of said lands, or any part of them,

Anderson vs Taylor.

was therefore barred by the statute of limitations, and the award was contrary to law and illegal. 3d. The award is void for uncertainty, in that it does “not designate what land, or locate it anywhere, in any State, county or district.' 4th. “The land in controversy, the right and titles to which was submitted to arbitration as aforesaid, was proven before the arbitrators to have been sold by John H. Pickett, administrator of James Pickett, on the 1st of February, 1842, under an order of the Court of Ordinary of Pulaski county, and that William W. Mayo became the purchaser at and for the sum of $1,500 00,and that on the same day he received a deed for said land from said John H. Pickett, and on the same day the said William W. Mayo reconveyed the same land to the said John H. Pickett at the same price. And from that time the said Pickett and Mayo, and those under whom they claimed, and those claiming under them, held the quiet, peaceable and uninterrupted possession of said land under a claim of title, till the said action of ejectment was commenced for their recovery, in January, 1863, for a period of over twenty years; that the plaintiff sought by their action of ejectment, and before said arbitrators, to set aside the sale of said lands (the said Mary Jane being one of two heirs to the estate of the said James Pickett, deceased,) on the first of February, 1842, on the ground that the said John H. Pickett, as administrator of James Pickett, had fraudulently purchased said lands at his own sale. But the evidence before the arbitrators showed that there was no fraud or unfairness in said sale by the said John H. Pickett, at his own sale as such administrator, or by the said Mayo; and that the said sale was a fair one at the price of $1,500 00, and which the administrator, in his return to the Court of Ordinary, charged himself with the amount of said sale, and that the guardian of the said Mary Jane Taylor, some time before the year 1845, received from the administrator of the said James Pickett, her full share of the purchase-money for said land, and which he did with a full knowledge of the sale, the manner of the sale, the seller and the purchase of it, and the price it brought at said sale the 1st of February,

Anderson vs. Taylor.

1842, he being present at the sale ; and that soon after the marriage of the said Mary Jane to the said Thomas L. Taylor, which marriage took place on or about the 26th day of January, 1855, the guardian of the said Mary Jane Taylor, who had long before then thus received her portion of her said father's estate—the said James Pickett—including her half of the said $1,500 00, and settled with and turned her whole estate in his hands over to her, or her husband, or trustee, including her half of the purchase-money for said land, and that the said Mary Jane had a guardian from at least 1842 till she married in 1855, and that from then till now, she never, by herself, guardian or trustee, except by said action of ejectment, attempted to repudiate said sale of said land on the 1st of February, 1812, but acquiesced in it, and by her guardian elected to take her part of the purchase-money for said land, and did, by her guardian, take it; and then, in a settlement with her guardian, after her marriage, by herself, husband or trustee, took and received it from her guardian ;” and not only that, but on the first day of May, 1855, soon after her marriage, she and her said husband, the said Thomas L. Taylor, and Jane Taylor, the only other heir to the estate of the said James Pickett, "released and surrendered all right and claim in and to said body of lands, (including the said lands so sold on the 1st of February, 1842, as aforesaid,) to him, the said Mayo;" also all right of suit or action to set aside the original sale “of said land on the said 1st of February, 1842, or in anywise to disturb or molest said Mayo in the enjoyment or title to said property,” all of which in substance was proved before said arbitrators, thereby further showing her election to take the purchase-money instead of said land, and yet they gave an award in favor of said plaintiff, and which award was, and is, on this account, too grossly unjust and illegal; for the said Mary Jane, by her guardian and trustee, not only made no attempt to repudiate said sale of land, except by said action of ejectment, and acquiesced in it for over twenty years, by which she was bound, but they elected to take and did take and receive her part of the pur

Anderson vs. Taylor.

chase-money. And they giving her the $1,500 00, or substituting it, making it pay the $1,500 00 as rent for said land, does not cure, or remedy, or make legal the said award in this respect, or in any way relieve it of its illegality and injustice, and the gross mistake of the arbitrators of the law in this respect."

"5th. And this deponent further says that on the trial by and before said arbitrators, plaintiff offered to give in evidence a deed made by J. C. Polhill to M. C. Polhill, dated 1st February, 1866, after the commencement of said action of ejectment, and after its submission to arbitration, conveying to Thomas L. Taylor, trustee for said Mary Jane Taylor, elc., the said parcel of land which the said Mayo so purchased from said John Pickett, and is now held by William M. Anderson, administrator of William W. Mayo, deceased ; that is to say, one-half interest in the same, by said Mrs. Taylor giving up her half interest in the part so sold to Mrs. Jane Pickett, referring to the said land so sold 1st of February, 1842, to the introduction of said deed as evidence before said arbitrators, the counsel for this defendant objected on the ground that it was a title, if a title at all, acquired by the plaintiff, not only after the commencement of said action of ejectment, but after the submission of it to arbitrators; which objection was overruled by the arbitrators and the said deed read as evidence, and which ruling of said arbitrators this deponent is advised and believes was and is illegal.”

These objections were demurred to ore tenus, and the demurrer was sustained, and the award was made the judgment of the Court. Plaintiff in error says said objections were sufficient in law as stated.

[NOTE.-A motion was made by counsel on both sides to put this cause to the heel of the Chattahoochee Circuit. The Court refused to do that, but allowed it by consent, to go to the heel of the entire docket of the term.]

ELI WARREN, LANIER & ANDERSON, for plaintiff in

error.

Anderson vs. Taylor.

A. T. BURKE, S. HALL, (by LOCHRANE & CLARKE,) for defendant.

* By the Court-Brown, C. J., delivering the opinion.

1. We are satisfied the failure of the arbitrators to furnish the party who objects to the award with a copy, as directed by Section 4183 of the Revised Code, is not sufficient cause for setting it aside. This provision of the statute is directory and should be complied with. But if the party has notice of the award, and appears at the first term of the Court, and files his objections, and does not show that he is taken by surprise, or that he has lost any right on account of the failure, we see no reason why that should vitiate the award. If he had failed to file his objections at the first term, because he did not in fact have notice of the existence of the award, or if he had obtained the notice during the term, and at so late a period, that he could not make out his objections, we do not say that the Court should have refused to allow him further time to make his objections.

2. An award, that the plaintiff in ejectment do recover the portion of land named, possessed by Mayo at his death, except the ten acres of land deeded to Henry Anderson, the land so awarded amounting to three hundred and ninety-five acres, when the amount claimed in the action of ejectment is four hundred and five acres, is not void for uncertainty. We think the maxim, id certum est quod certum reddi potest, applies. Suit was brought against Mayo for four hundred and five acres of land, described in the declaration; and it seems he died in possession, pending the action. The case was referred to arbitration, and the award was for plaintiff for the land named, possessed by Mayo at the time of his death, except the ten acres deeded to Anderson, adding the amount of land so awarded.

It would seem that the sheriff could have no difficulty in locating the land by this description. It is said, however, it

*For meaning of "By the Court," see note, 40th Georgia Reports, 670.

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