The opinion of the court was delivered by
Joi-inston, J.:
Two principal reasons are urged against the sufficiency of the petition, the first of which is that the cause of action attempted to be set forth is based on an agreement to arbitrate a dispute concerning real estate; and it is argued that such a dispute is not. the subject of arbitration. This position cannot be maintained. It seems that in an early day there was some doubt whether controversies concerning land could .be submitted to arbitration, but this doubt can hardly be said to exist now. In discussing what may be the subject-matter for submission, Mr. Morse, in his work on Arbitration and Award, says:
“ In England, in old times, the right to submit to arbitration disputes concerning real estate, especially where the actual title was'in dispute, was regarded with great-jealousy, but any doubt concerning the validity of such submissions has been long since entirely dissipated.' In the United States few traces of the ancient doctrine are to be found, and there is no- question that any dispute whatsoever relating to realty may be submitted to arbitration.”
[673]*673And he cites numerous authorities to sustain the conclusion which he has reached. (Morse on Arb. and Award, 54.) Mr. Caldwell, in his treatise on Arbitration, page 3, after speaking of the doubt which formerly existed upon the question, concludes as follows:
“Indeed, at the present day it is quite clear that any disputes concerning land may be referred to arbitration, and that one party may be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the right and the possession.”
1. Disputes-which may be arbiThe only case cited to sustain the objection is that of Stigers v. Stigers, which is noted in the appendix of 5 Has. at page 652. No opinion was written in the case, and the grounds upon which the decision was based cannot now be definitely ascertained. It appears to have been an action to recover real estate, and the plaintiff offered in evidence an arbitration bond executed by the parties, and an award of the arbitrator, which were excluded by the court for reasons not stated. It is true the syllabus of the case as it is reported, sustains the view contended for by the defendant; but whether the syllabus was prepared by the justice who pronounced the decision in the case, or by the reporter, is not known. At the time the decision was made, there was no statute, as there is now, providing that the justice delivering the opinion shall prepare and file a syllabus of the points decided in the case. The syllabus of the case, by whomsoever prepared, states a doctrine which is in conflict with well-settled law that we cannot approve or follow. If there was ever any doubt in this state of the right to submit such controversies to arbitration, it has been settled by recent legislation. In 1876 it was enacted, “That all persons who shall have any controversy or eon- . . , , troversies may submit such controversy or controversies to the arbitration of any person or. persons to be mutually agreed upon by the parties.” (Laws 1876, ch. 102, §1.) The language of this provision is broad and inclusive, and covers disputes concerning real estate equally with disputes relating to personal property.
[674]*674The other objection to the petition is, that it fails to show that the plaintiff ever had any interest in the strip of land for which he demands payment, or that he relinquished any right thereto to the defendant, or that the defendant received anything at his hands that he was. not already entitled to, and therefore that there was no consideration for defendant’s agreement to pay for the disputed strip of land. From the petition it appears that the plaintiff and the defendant were the owners of adjoining tracts of land, the plaintiff owning the southeast quarter of section 26, and the defendant the southwest quarter of the same section. For many years a dispute existed between them relating to the true location of the boundary line dividing these tracts. Finley claimed that the true line of division was one lying equidistant from the east and west lines of the section, while Funk claimed that his land extended to a line three rods east of the middle boundary as claimed by Finley, which would make Funk’s quarter-section six rods longer on its south line than Finley’s quarter-section. On the 12th of June, 1884, they undertook to have the boundary line established by the county surveyor, as provided by statute, but a dispute arising as to the procedure, they agreed to dispense with the services of the county surveyor in establishing the corner, and they fixed upon a boundary line by an agreement between themselves. The agreement was in writing, and by it the boundary was established on the line contended for by Funk, and upon which a hedge was standing. As a part of the agreement, it was stipulated that—
“Said Funk shall pay to said Finley the value of the strip of land lying west of the hedge between the land of Funk and Finley, and east of the line extended northerly from the point this day ascertained to be equidistant from the southeast and southwest corners of said section 26, toward the quarter-section corner on the north line of said section.”
It was stipulated that the county surveyor should compute the quantity of land in the strip described, and its value was to be determined by three arbitrators, one to be chosen by Finley and the other by Funk, and the two so chosen to select [675]*675a third, and the parties agreed to abide by the decision of these arbitrators, and that Funk should pay the'amount of the award within ten days from the time it was made; and that unless the award was paid in the time stated, Finley was at liberty to declare_the contract void so far as it affected him, or he might enforce it by any proéeeding necessary to collect the same. It is alleged that the county surveyor computed -the quantity of land in the strip, and found that it amounts to two and one-half acres; that the plaintiff has complied in every respect with the provisions of the agreement, but that the defendant has refused to select an arbitrator, and has notified the plaintiff that he will not pay for said land nor submit the question as to the value thereof to arbitration as agreed; and that the value of the land included in the strip was $300. This agreement is somewhat ambiguous in its terms, but the majority of the court are of the opinion that it is valid, and that the petition states a cause of action. The view taken by the court is that all the provisions of the agreement must be taken together, and if by any reasonable construction it can be upheld, it should be done. By this agreement the parties sought to settle a perplexing question of boundaries, and avoid what might be a protracted and expensive litigation. The agreement is one they had a right to make, and its purpose is looked upon by the courts with favor. It has been said in a case where disputed boundary lines were involved, that—
“ It is the policy of the law to allow parties to settle and adjust doubtful and disputed fects between themselves, and when such a matter which before was uncertain, has been established by agreement between the parties upon good consideration passing between them, they are not permitted afterward to deny it.” (Vossburgh v. Teator, 32 N. Y. 567.)
[676]*676
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The opinion of the court was delivered by
Joi-inston, J.:
Two principal reasons are urged against the sufficiency of the petition, the first of which is that the cause of action attempted to be set forth is based on an agreement to arbitrate a dispute concerning real estate; and it is argued that such a dispute is not. the subject of arbitration. This position cannot be maintained. It seems that in an early day there was some doubt whether controversies concerning land could .be submitted to arbitration, but this doubt can hardly be said to exist now. In discussing what may be the subject-matter for submission, Mr. Morse, in his work on Arbitration and Award, says:
“ In England, in old times, the right to submit to arbitration disputes concerning real estate, especially where the actual title was'in dispute, was regarded with great-jealousy, but any doubt concerning the validity of such submissions has been long since entirely dissipated.' In the United States few traces of the ancient doctrine are to be found, and there is no- question that any dispute whatsoever relating to realty may be submitted to arbitration.”
[673]*673And he cites numerous authorities to sustain the conclusion which he has reached. (Morse on Arb. and Award, 54.) Mr. Caldwell, in his treatise on Arbitration, page 3, after speaking of the doubt which formerly existed upon the question, concludes as follows:
“Indeed, at the present day it is quite clear that any disputes concerning land may be referred to arbitration, and that one party may be directed to execute all the necessary conveyances to the other, and to perform all such acts as may be requisite to confer the right and the possession.”
1. Disputes-which may be arbiThe only case cited to sustain the objection is that of Stigers v. Stigers, which is noted in the appendix of 5 Has. at page 652. No opinion was written in the case, and the grounds upon which the decision was based cannot now be definitely ascertained. It appears to have been an action to recover real estate, and the plaintiff offered in evidence an arbitration bond executed by the parties, and an award of the arbitrator, which were excluded by the court for reasons not stated. It is true the syllabus of the case as it is reported, sustains the view contended for by the defendant; but whether the syllabus was prepared by the justice who pronounced the decision in the case, or by the reporter, is not known. At the time the decision was made, there was no statute, as there is now, providing that the justice delivering the opinion shall prepare and file a syllabus of the points decided in the case. The syllabus of the case, by whomsoever prepared, states a doctrine which is in conflict with well-settled law that we cannot approve or follow. If there was ever any doubt in this state of the right to submit such controversies to arbitration, it has been settled by recent legislation. In 1876 it was enacted, “That all persons who shall have any controversy or eon- . . , , troversies may submit such controversy or controversies to the arbitration of any person or. persons to be mutually agreed upon by the parties.” (Laws 1876, ch. 102, §1.) The language of this provision is broad and inclusive, and covers disputes concerning real estate equally with disputes relating to personal property.
[674]*674The other objection to the petition is, that it fails to show that the plaintiff ever had any interest in the strip of land for which he demands payment, or that he relinquished any right thereto to the defendant, or that the defendant received anything at his hands that he was. not already entitled to, and therefore that there was no consideration for defendant’s agreement to pay for the disputed strip of land. From the petition it appears that the plaintiff and the defendant were the owners of adjoining tracts of land, the plaintiff owning the southeast quarter of section 26, and the defendant the southwest quarter of the same section. For many years a dispute existed between them relating to the true location of the boundary line dividing these tracts. Finley claimed that the true line of division was one lying equidistant from the east and west lines of the section, while Funk claimed that his land extended to a line three rods east of the middle boundary as claimed by Finley, which would make Funk’s quarter-section six rods longer on its south line than Finley’s quarter-section. On the 12th of June, 1884, they undertook to have the boundary line established by the county surveyor, as provided by statute, but a dispute arising as to the procedure, they agreed to dispense with the services of the county surveyor in establishing the corner, and they fixed upon a boundary line by an agreement between themselves. The agreement was in writing, and by it the boundary was established on the line contended for by Funk, and upon which a hedge was standing. As a part of the agreement, it was stipulated that—
“Said Funk shall pay to said Finley the value of the strip of land lying west of the hedge between the land of Funk and Finley, and east of the line extended northerly from the point this day ascertained to be equidistant from the southeast and southwest corners of said section 26, toward the quarter-section corner on the north line of said section.”
It was stipulated that the county surveyor should compute the quantity of land in the strip described, and its value was to be determined by three arbitrators, one to be chosen by Finley and the other by Funk, and the two so chosen to select [675]*675a third, and the parties agreed to abide by the decision of these arbitrators, and that Funk should pay the'amount of the award within ten days from the time it was made; and that unless the award was paid in the time stated, Finley was at liberty to declare_the contract void so far as it affected him, or he might enforce it by any proéeeding necessary to collect the same. It is alleged that the county surveyor computed -the quantity of land in the strip, and found that it amounts to two and one-half acres; that the plaintiff has complied in every respect with the provisions of the agreement, but that the defendant has refused to select an arbitrator, and has notified the plaintiff that he will not pay for said land nor submit the question as to the value thereof to arbitration as agreed; and that the value of the land included in the strip was $300. This agreement is somewhat ambiguous in its terms, but the majority of the court are of the opinion that it is valid, and that the petition states a cause of action. The view taken by the court is that all the provisions of the agreement must be taken together, and if by any reasonable construction it can be upheld, it should be done. By this agreement the parties sought to settle a perplexing question of boundaries, and avoid what might be a protracted and expensive litigation. The agreement is one they had a right to make, and its purpose is looked upon by the courts with favor. It has been said in a case where disputed boundary lines were involved, that—
“ It is the policy of the law to allow parties to settle and adjust doubtful and disputed fects between themselves, and when such a matter which before was uncertain, has been established by agreement between the parties upon good consideration passing between them, they are not permitted afterward to deny it.” (Vossburgh v. Teator, 32 N. Y. 567.)
[676]*676„ , swerawmi-11' vand contiact. [675]*675The fact that the parties entered into 'an agreement is evidence that.they desired as far as possible to waive and dispense with formalities; and even if the agreement is formally defective, the court should seek to uphold it and carry out the obvious intent of the parties. The defendant claimed that his land extended to the hedge, while the plaintiff insisted that the [676]*676hedge stood three rods over on his land. They employed a surveyor, and testimony was taken in an ineffectual effort to ascertain the true line. The line was fixed, and the defendant, as a settlement of the question, agreed to pay the value of the disputed strip. The consideration for the agreement, as the plaintiff contends,'is the mutual concessions of the parties in fixing the dividing-line, and the aban(jonmeu¿ the plaintiff of any claim to the disputed strip, which is deemed by the court to be sufficient to sustain the defendant’s promise. The other view, and the one entertained by the writer of this opinion, is that the agreement was without consideration, and is invalid. The subject of the controversy between the parties was, where was the true line of division between their farms? It was expressly agreed by them that the boundary is forever established on a line with the hedge, which by another provision of the agreement is said to divide the land of Funk and Finley. ■ It seems to me that the parties did not seek to make a new boundary line, nor to change the old line, but only undertook to find and fix the preexisting line—the true line of division between the two quarter-sections. The land lying west of this line, including the strip in question, was owned by Funk, and in which Finley had no interest. He owned no more than the southeast quarter-section, which extended westwardly to a hedge, and no farther, and he therefore had no interest in the strip west of the hedge, nor in any part of the southwest quarter, to convey. It is true that Funk agreed to pay Finley the value of two and one-half acres of land, and we should, if possible, uphold the agreement, and give effect to the apparent purpose of the parties; but no agreement can be upheld that is not founded upon a valid and sufficient consideration. The stated and only consideration for the promise of Funk is the two and one-half acres of land which, as we have seen, he already owned, and in which the plaintiff had no interest to convey. If the agreement is interpreted as showing that the parties regarded the line three rods east of the hedge -to be the true one, and that the land included in the strip belonged to Fin[677]*677ley, which from the language employed would seem to be a strained interpretation, it would still fail of its purpose. In the opinion of the writer, the agreement is not effective as a conveyance, and would not operate to transfer the title of the disputed strip of land to the defendant. It is not alleged in the petition that any deed or instrument which would operate as a conveyance of any part of plaintiff’s quarter-section had been tendered to the defendant.
Another point presented against the petition by the defendant is, that it contains an allegation that the surveyor proceeded with the survey alleged to have been begun by him, and filed his plat and notes with the register of deeds, showing that the corner was established on-the evidence produced before him instead of upon the agreement of the parties, and it is claimed that that survey is conclusive upon the parties. .This point is answered by the allegation that the services of the surveyor in establishing the corner were dispensed with, and that the line was established by the agreement, which is here held to be valid. The action of the surveyor was taken subsequently to this agreement, and is not binding upon the plaintiff.
From the conclusion reached, it follows that the ruling of the district court, holding the petition to be insufficient, must be held erroneous, and its judgment will therefore be reversed, and the cause remanded for another trial.
All the Justices concurring, except as to the second paragraph of the syllabus, in which Justice Johnston does not concur.