Cassoday, O. J.
It is admitted that one of tbe arbitrators was at tbe time of bis appointment an attorney for Franlcfurth and Maschauer, and another was attorney for Steinmeyer and Ott. There is evidence tending to prove that during tbe pendency of tbe matter before tbe arbitrators each of tbe arbitrators mentioned consulted with tbe clients who so appointed him in relation to some of tbe matters so to be determined by tbe arbitrators. Tbe general rule undoubtedly is “that whomsoever tbe parties see fit to select . . . may be chosen as arbitrators.” 2 Am. & Eng. Ency. of Law (2d ed.), 633-637. But, “if an arbitrator has any personal interest in tbe subject-matter of tbe dispute, which is unknown to tbe parties, be is incompetent to act, and bis award will be void. But if such' interest is known to them, and they do not object, bis award will be binding.” Id. So, if it appears that an arbitrator exhibited bias — strong prejudice or hostile feeling — toward either party, the award [201]*201■will be set aside, even if “another arbitrator, who has joined in the award, has acted impartially.” Id. The intention •of arbitrators may be “perfectly honest, yet, if their acts .are plainly partial, an award will be set aside.” Id. So it has been held in Illinois that:
“What will be miscondnct on the part of a juror, will, as .a general rule, be such on the part of an arbitrator. Neither has a right to learn facts, except as brought to his attention -on the trial. It is gross misconduct -for either to seek evidence or the opinions of others in regard to the case, or anything material to its decision, in another mode. If a party, his agent or attorney, converses with an arbitrator, after his .selection, about the facts or merits of the case, an award in .such party’s favor should be set aside on the presumption it was obtained by improper influence.” Moshier v. Shear, 102 Ill. 169.
So it is said by Mr. Morse that arbitrators are the “agents ■of both parties alike, and not of one party only. . . . Under no circumstances can an arbitrator become an advocate. He is always bound to exercise the highest degree of judicial impartiality, without the slightest regard to the manner in which the charge has been placed upon him.” Morse, Arbitrators, 106.
“If the parties to an arbitration,” however, “know of any 'circumstance disqualifying the arbitrator, but yet go on with the hearing, they thereby waive such objections as may ■exist to his appointment. In order to malee an objection to :an arbitrator effective, it must be made as soon as the fact >of his incompetency became known to the party objecting.” .2 Am. & Eng. Ency. of Law (2nd ed.), 631.
In the case at bar the respective parties appear to have •■acted with full knowledge of the circumstances tending to dis■qualify one or more of the arbitrators, and hence have waived ■any objection to the award on that ground.
- 2. It is conceded that the controversies of the parties respecting the partition of the Garvin Lake Olub property between them as tenants in common was rightfully submitted [202]*202to arbitrators, as authorized by statute. Sec. 3545, Stats-1898; McCord v. Flynn, 111 Wis. 78.
Counsel for the appellants contend that the award should have been set aside upon two grounds. One is that the arbitrators exceeded the powers conferred upon them by the articles of submission; and the other is that it appears upon, the face of the award that the arbitrators so imperfectly executed their powers that a mutual, final, and definite award on the subject matter submitted was not made. If either of the grounds so stated is well founded, then the award must be set aside, since it is expressly so prescribed by statute; Subd. 4, sec. 3552, Stats. 1898; McCord v. Flynn, supra.
After careful c.onsideration we are forced to the conclusion that such objections to the award are both well taken. In the-fourth subdivision of the award it is, in effect, prescribed that Steinmeyer and Ott were to deed to Frcmlcfurth and Masch-auer a piece of land, designated on the map mentioned as-“E,” for barn purposes, with land sufficient to malte a proper approach to the same, and for which Franlcfurth and Masch-auer were to pay Steinmeyer and Ott $25 ; and by the twelfth-subdivision it is provided that, if Franlcfurth and Maschauer abandon such barn site, or use the same for any other purpose, then the title to the same was to revert to Steinmeyer and Ott, and the deed of conveyance was to contain such a provision. The roadway awarded was -to include such ap>-proach to the barn site. It is enough to say that the piece of' land so designated as “IT” is situated entirely outside of the club property. The arbitrators had no more authority to make such award in respect to that piece of land than they had in respect to any other piece of land owned by Steinmeyer and Ott entirely outside of their jurisdiction. The only-answer suggested by counsel is that Franlcfurth and Masch-auer were not obliged to accept a deed of the bam site, H, with such approach, nor to pay the $25; and that the barn site did' not enter into the consideration of the arbitrators in -making; [203]*203the division of the club property. This is a frank confession of the want of power in the arbitrators to make such award. And yet the location of the roadway may have been very objectionable to Franlcfurth and Maschauer, because not connected with a barn site and approaches to which they should have had the absolute title. Certainly, the arbitrators had no power to force Franlcfurth and Maschauer into such a position merely because they might, if they saw fit, refuse to accept a deed of the barn site, BE, and its approach. Besides, the dimensions of such approach were left indefinite and uncertain.
3. The character and situation of ihe property was peculiar. The parties had “been unable to agree upon a division between” themselves. The propriety of an arbitration was manifest. By the articles of submission it was expressly agreed that there should be “an absolute division” of the “real estate and all rights, privileges, interests, and easements therein and improvements thereon, so that when” such division should be “completed” each party would “have an independent roadway from the right of way, lying on the east line of the said club property, to the portion allotted to” them, “respectively, if in the judgment of the arbitrators” it could “possibly be done; and that neither party” should “have any right of way, easement, burden, or charge of any kind or nature upon or across the portion allotted to the other.” It does not appear that in the judgment of the arbitrators it was impossible to make a division which would have given to each party such “independent roadway.” Instead of awarding to Franlcfurth and Maschauer such independent roadway, the strip of land so awarded to them by the fourth subdivision was “to be used by them as a right of way or driveway only”; and by the seventh subdivision the deed to the same was to “contain a provision that no building or obstruction of any kind” was “to be erected thereon,” and Stein-meyer and Ott were “to have the perpetual right to cross” [204]
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Cassoday, O. J.
It is admitted that one of tbe arbitrators was at tbe time of bis appointment an attorney for Franlcfurth and Maschauer, and another was attorney for Steinmeyer and Ott. There is evidence tending to prove that during tbe pendency of tbe matter before tbe arbitrators each of tbe arbitrators mentioned consulted with tbe clients who so appointed him in relation to some of tbe matters so to be determined by tbe arbitrators. Tbe general rule undoubtedly is “that whomsoever tbe parties see fit to select . . . may be chosen as arbitrators.” 2 Am. & Eng. Ency. of Law (2d ed.), 633-637. But, “if an arbitrator has any personal interest in tbe subject-matter of tbe dispute, which is unknown to tbe parties, be is incompetent to act, and bis award will be void. But if such' interest is known to them, and they do not object, bis award will be binding.” Id. So, if it appears that an arbitrator exhibited bias — strong prejudice or hostile feeling — toward either party, the award [201]*201■will be set aside, even if “another arbitrator, who has joined in the award, has acted impartially.” Id. The intention •of arbitrators may be “perfectly honest, yet, if their acts .are plainly partial, an award will be set aside.” Id. So it has been held in Illinois that:
“What will be miscondnct on the part of a juror, will, as .a general rule, be such on the part of an arbitrator. Neither has a right to learn facts, except as brought to his attention -on the trial. It is gross misconduct -for either to seek evidence or the opinions of others in regard to the case, or anything material to its decision, in another mode. If a party, his agent or attorney, converses with an arbitrator, after his .selection, about the facts or merits of the case, an award in .such party’s favor should be set aside on the presumption it was obtained by improper influence.” Moshier v. Shear, 102 Ill. 169.
So it is said by Mr. Morse that arbitrators are the “agents ■of both parties alike, and not of one party only. . . . Under no circumstances can an arbitrator become an advocate. He is always bound to exercise the highest degree of judicial impartiality, without the slightest regard to the manner in which the charge has been placed upon him.” Morse, Arbitrators, 106.
“If the parties to an arbitration,” however, “know of any 'circumstance disqualifying the arbitrator, but yet go on with the hearing, they thereby waive such objections as may ■exist to his appointment. In order to malee an objection to :an arbitrator effective, it must be made as soon as the fact >of his incompetency became known to the party objecting.” .2 Am. & Eng. Ency. of Law (2nd ed.), 631.
In the case at bar the respective parties appear to have •■acted with full knowledge of the circumstances tending to dis■qualify one or more of the arbitrators, and hence have waived ■any objection to the award on that ground.
- 2. It is conceded that the controversies of the parties respecting the partition of the Garvin Lake Olub property between them as tenants in common was rightfully submitted [202]*202to arbitrators, as authorized by statute. Sec. 3545, Stats-1898; McCord v. Flynn, 111 Wis. 78.
Counsel for the appellants contend that the award should have been set aside upon two grounds. One is that the arbitrators exceeded the powers conferred upon them by the articles of submission; and the other is that it appears upon, the face of the award that the arbitrators so imperfectly executed their powers that a mutual, final, and definite award on the subject matter submitted was not made. If either of the grounds so stated is well founded, then the award must be set aside, since it is expressly so prescribed by statute; Subd. 4, sec. 3552, Stats. 1898; McCord v. Flynn, supra.
After careful c.onsideration we are forced to the conclusion that such objections to the award are both well taken. In the-fourth subdivision of the award it is, in effect, prescribed that Steinmeyer and Ott were to deed to Frcmlcfurth and Masch-auer a piece of land, designated on the map mentioned as-“E,” for barn purposes, with land sufficient to malte a proper approach to the same, and for which Franlcfurth and Masch-auer were to pay Steinmeyer and Ott $25 ; and by the twelfth-subdivision it is provided that, if Franlcfurth and Maschauer abandon such barn site, or use the same for any other purpose, then the title to the same was to revert to Steinmeyer and Ott, and the deed of conveyance was to contain such a provision. The roadway awarded was -to include such ap>-proach to the barn site. It is enough to say that the piece of' land so designated as “IT” is situated entirely outside of the club property. The arbitrators had no more authority to make such award in respect to that piece of land than they had in respect to any other piece of land owned by Steinmeyer and Ott entirely outside of their jurisdiction. The only-answer suggested by counsel is that Franlcfurth and Masch-auer were not obliged to accept a deed of the bam site, H, with such approach, nor to pay the $25; and that the barn site did' not enter into the consideration of the arbitrators in -making; [203]*203the division of the club property. This is a frank confession of the want of power in the arbitrators to make such award. And yet the location of the roadway may have been very objectionable to Franlcfurth and Maschauer, because not connected with a barn site and approaches to which they should have had the absolute title. Certainly, the arbitrators had no power to force Franlcfurth and Maschauer into such a position merely because they might, if they saw fit, refuse to accept a deed of the barn site, BE, and its approach. Besides, the dimensions of such approach were left indefinite and uncertain.
3. The character and situation of ihe property was peculiar. The parties had “been unable to agree upon a division between” themselves. The propriety of an arbitration was manifest. By the articles of submission it was expressly agreed that there should be “an absolute division” of the “real estate and all rights, privileges, interests, and easements therein and improvements thereon, so that when” such division should be “completed” each party would “have an independent roadway from the right of way, lying on the east line of the said club property, to the portion allotted to” them, “respectively, if in the judgment of the arbitrators” it could “possibly be done; and that neither party” should “have any right of way, easement, burden, or charge of any kind or nature upon or across the portion allotted to the other.” It does not appear that in the judgment of the arbitrators it was impossible to make a division which would have given to each party such “independent roadway.” Instead of awarding to Franlcfurth and Maschauer such independent roadway, the strip of land so awarded to them by the fourth subdivision was “to be used by them as a right of way or driveway only”; and by the seventh subdivision the deed to the same was to “contain a provision that no building or obstruction of any kind” was “to be erected thereon,” and Stein-meyer and Ott were “to have the perpetual right to cross” [204]*204"the same “at any time and at any point thereon, for all'reasonable purposes, but not to use the same for a driveway”; and by the twelfth subdivision it is provided that the conveyance ■of such real estate should contain a provision that, if .the roadway and barn site, H, should be abandoned by Frank-furth and Maschauer, or be used by them for any “other purpose than a roadway or a barn site,” then the title to the .same should “revert to Steinmeyer and Ott." Moreover, it is provided by the fourth and tenth subdivisions of the award that Steinmeyer and Ott were to build a driveway of their own on the land awarded to them south of the one then existing, and that Frankfurth and Maschauer should “pay one half of the actual cost of building” the same. Such provisions of the .award, and other which might be mentioned, if not in excess of the powers conferred upon the arbitrators, were certainly in conflict with the letter and spirit of the articles of submission, wherein it was sought to secure an “absolute division,” .an “independent roadway,” so “that neither party” should “have any right of way, easement, burden, or charge of any kind or nature upon or across the portion allotted to the •other.” In the language of the statute,' we must hold that the “arbitrators exceeded their powers,” and “so imperfectly executed them that a mutual, final, and definite award on the subject-matter submitted” to them “was not made.” Subd. 4, .sec. 3552, Stats. 1898. Such an award, if sought to be executed, would naturally lead to and stimulate new controversies and litigation, instead of securing the object sought to be attained by the arbitration of finally and definitely settling tire old controversy.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded, with direction to grant the motion to vacate and set aside the award, and for further proceedings according to law.