MATHEW HOBSON, APPELLANT,
v.
THE HEIRS OF DUNCAN M`ARTHUR, DECEASED, APPELLEE.

*183 Mr. Stanbery, for the appellant.

Mr. Mason, for the appellees.

*188 Mr. Justice THOMPSON delivered the opinion of the Court.

This case comes up from the Circuit Court of the United States for the district of Ohio. The bill filed in the Court below is founded upon, and seeks a specific execution of the following agreement, bearing date the 10th of November, 1810.

"It is hereby agreed upon between Duncan M`Arthur, of Ross county, and state of Ohio, of the one part, and John Hobson, of Jackson county, and state of Georgia, and Mathew Hobson, of Oglethorpe county, and state of Georgia, aforesaid, on the other part, witnesseth, that, whereas, eleven thousand six hundred and sixty-six and two-third acres were sent to Col. Richard C. Anderson's office, on or about the first instant, by Col. Elias Langham, in the name and for the use of said John and Mathew Hobson, with entries for the same. Now be it known, that it is hereby understood and agreed upon by the contracting parties, that said M`Arthur is to withdraw ten thousand acres of the eleven thousand six hundred and sixty-six and two-third acres, and to relocate the said ten thousand acres elsewhere, in the name of the said John and Mathew; and it is further agreed upon by the contracting parties, that the land from which the said ten thousand acres is to be withdrawn, as located by Elias Langham, and also the land to be re-entered by said M`Arthur, is to be valued by two disinterested men, one to be chosen by each of the contracting parties, and if the said two men cannot agree on the price of said lands, or any part thereof, the said two men are to choose a third man, who, together with the other two, shall agree on the price of said land, and the said Hobsons are to have so much of said land, so to be relocated by said M`Arthur, as will amount to the value of the land from which said warrants shall have been removed, and also land to the amount and value of two thousand dollars, in addition to the value of the ten thousand, and where the same was entered by Elias Langham; and the said John and Mathew Hobson doth hereby obligate themselves, their heirs, executors, and administrators, separately and jointly, to convey unto the said M`Arthur, his heirs, &c., all and singular the balance of said ten thousand acres, after deducting therefrom such quantity as by valuation as aforesaid will amount to the value of the said ten thousand acres, where the same was first located by said Langham, and also land to the value of two thousand dollars, as *189 aforesaid; and it is further understood and agreed upon, that if the lands located by the said M`Arthur, should not be valued to the amount of the lands so located by said Langham, and also two thousand dollars, then, and in that case, said M`Arthur is to convey unto the said John and Mathew, their heirs, &c., other lands to the amount of said valuation, with the value of two thousand dollars in land as aforesaid, said Hobson to pay all office fees and surveying expenses. Said valuation to take place on or before the expiration of three and a half years from the date hereof; said Hobson to pay the taxes on said lands until divided; and then the said M`Arthur to pay to the said Hobson his proportionable part of said taxes.

In witness whereof, we, the contracting parties, do hereunto set our hands and seals, this 10th day of November, A.D. 1810.

Be it remembered before signing, that the division of said lands shall take place forthwith, after the titles are considered secure, and that the lands located by Langham, are to be picked as he upon his honour intended.

The bill, after having set out substantially this contract, states, that John Hobson, on the 24th of November, 1818, sold and assigned to the complainant all his right and title to one-half (five thousand acres) of the land warrants located by him. That in pursuance of said agreement, he withdrew ten thousand acres of Langham's entries, and located them elsewhere. That on the 30th of July, 1830, he appointed his son, Thomas J. M`Arthur, his attorney, to transact the business under the said contract; who, in pursuance of said power, appointed, on his part, William Vance, to proceed in the valuation of the said lands. And that for the same purpose Mathew Hobson appointed Mathew Bonner, who proceeded to view the land; and finding that they could not agree on the value, they selected Lyne Starling, as a third man, to make the appraisement, pursuant to the terms of the agreement, who, together with Vance and Bonner, agreed upon the valuation of the lands located by Langham. The complainant *190 further states, that, afterwards, his agent proposed to the said Mathew Hobson, to select and point out to the appraisers for valuation, such parts of the entries made by M`Arthur as would amount to a sufficient quantity to satisfy the said Hobson, which proposition he declined, and insisted that it was his right to have the whole of the lands entered by the complainant valued. That he was entitled to an interest in the whole of the entries made by the complainant, proportional to the valuation of the Langham entries. The bill states that afterwards the three appraisers proceeded to examine the lands relocated by M`Arthur, and that two only of the appraisers, Bonner and Starling, agreed on the valuation. And the bill then charges that the said valuation has not been made in conformity to the said agreement; in this, that the said three appraisers have not all agreed as to the value of the lands relocated by the complainant, but that only two agreed thereto. Several other charges are made against the validity of this appraisement, which it is unnecessary to notice. The bill then sets out several proposals made by the complainant for the settlement of the controversy, which he declined accepting, and refused making any conveyance or assignment of his interest in the land located by the complainant. The bill, then, for the purpose of obtaining an injunction, refers to an act of Congress, of the 26th of May, 1830, for the settlement of the conflicting claims of the complainant and the United States, to the land in question; and charges that the defendant Hobson threatens to apply to the government for the appraised value and interest of five thousand acres of the land, entered in the name of the said Mathew Hobson; and prays that he may be enjoined from claiming and receiving from the treasury of the United States any part of the money appropriated by the act of Congress, until the same is heard and adjudicated upon by the Court. And further, praying that the said Hobson may be decreed to accept some one of the terms proposed by him, in fulfilment of the contract, according to its true intent and understanding. And that he may be compelled to perform the said agreement specifically, on his part, as the complainant has proposed and tendered to do on his part; and such other and further relief as may seem meet and just.

The answer of Hobson admits the contract of the 10th of November, 1810, set out in the bill; and that he is willing to abide *191 by the same, according to the just interpretation thereof. He admits the appointment of appraisers, and their proceeding to the valuation of the land, as stated in the bill; and that thereupon he informed the complainant of his willingness to settle all matters under the contract; and that after taking and retaining such proportion of the lands entered by the complainant, and valued as set out in the bill and answer, as would cover and include the claims of him, the defendant, under the contract and agreeable to such valuation, he was willing, and then offered to assign and relinquish to the complainant, the rest and residue of the lands so valued, and also all the other entries and surveys made by the complainant; which he wholly refused to do. The defendant admits that he rejected all the demands and requisitions of the complainant made at the time alluded to, and all the demands which had for their object and design a disregard in part or in whole of the doings of the appraisers. The defendant admits the passage of an act of Congress mentioned in the bill, and that he means to avail himself of its provisions, if he can obtain a settlement of the matter with the complainant; but he is prevented by the complainant from relinquishing his interest in the lands to the United States. And he denies the right of the complainant to confine him to any particular part of either of the surveys, valued by the appraisers; but that when it is ascertained what number of acres he is entitled to under the contract and valuation, then he will hold the same undivided and in common with the complainant, until by partition it shall be divided. And he denies the right of the complainant to pay off and settle with him in a given sum of money. That he is perfectly willing to abide by the valuation made by the appraisers, and relinquish his claim as before offered.

An interlocutory decree was thereupon entered, declaring that the appraisement made by only two of the appraisers of the relocated entries and surveys made by M`Arthur was void, and ordered the same to be set aside and annulled; and then proceeds to give directions for another appraisement, which the defendant Hobson refused to comply with; and thereupon a final decree was entered, declaring that the complainant, M`Arthur, had complied on his part with the interlocutory decree, and that the respondent Hobson had altogether neglected to comply with *192 the same on his part; and alleging that the sum of nine thousand two hundred and fifty dollars had been paid by M`Arthur to Hobson, as appeared by his receipt annexed to the agreement of the 25th of September, 1830. It was thereupon ordered, adjudged, and decreed, that the said Hobson should within sixty days after the rising of the Court, by a good and sufficient deed, transfer and assign to Duncan M`Arthur, his heirs and assigns, all his right, title, and interest in the ten thousand acres of land relocated and surveyed by the said Duncan M`Arthur; and that in case he should fail to comply with this decree, within the time thereby limited, then that the decree should operate as such conveyance. And from this decree the present appeal is taken.

The first and principal question in the case is, whether the appraisement or valuation of the land was made pursuant to the provisions of the contract of the 10th of November, 1810. If it was, then the decree in this respect is erroneous. And it was the fault of the complainant that the contract was not carried into execution; and he cannot come now to ask for a specific execution of it.

The agreement was, that the land located by Langham, from which the ten thousand acres were to be withdrawn, and also the land to be re-entered by M`Arthur, should be valued by two disinterested men, one to be chosen by each of the contracting parties; and in case the two men thus chosen could not agree on the price of said lands, then they were to choose a third man, who, together with the other two, shall agree on the price of the said lands. The parties in pursuance of the agreement, each chose a man to make the valuation, and upon their disagreement with respect to the same, they chose a third man, and the whole three thereupon agreed as to the valuation of the Langham location, but disagreed in the valuation of the M`Arthur location; and the valuation was made by Starling and Bonner, two of the appraisers: and it is contended that this valuation was void, because made by two only.

It has been argued, that this being a delegation of power to the three, for a mere private purpose, all must agree, or the authority has not been pursued. This may be admitted to be the rule, where the original delegation of the power is to the three, without any other provision on the subject. But in construing *193 this agreement, we must look at what was the obvious intention of the parties. The parties clearly intended, that the valuation should at all events be made. A third man was not to be called in unless the two disagreed; and it is an unreasonable construction of this agreement that it was so framed that it not only might fail to accomplish the very object intended, but that in all probability it must fail and become entirely nugatory, as the third man was not to be called until the two had disagreed. Upon the construction of the agreement, that the three must unite in the valuation, the office to be performed by the third man was to persuade the other two to agree with him. This could never have been the understanding of the parties. It is a more reasonable construction to consider the third man in the character of an umpire, to decide between the two that should disagree. This would insure the accomplishment of the object the parties had in view. But a contrary construction would most likely defeat that object.

Upon this view of the agreement, the valuation by two of the appraisers was within the submission.

It has also been made a question whether the whole of the land re-entered by M`Arthur was to be valued, or only so much as was to be retained by Hobson. The terms of the submission would seem to settle this question. It expressly provides that the land from which the ten thousand acres, located by Langham, was to be withdrawn, and also the land to be re-entered by M`Arthur, were to be valued, &c., and this must have been the understanding of the parties in order to make a just partition between them.

There is no provision made for the selection of any particular part to be appraised. By whom, then, was such part to be designated? But when the whole of each tract is valued, the proportion which Hobson is to have in the M`Arthur location is easily ascertained; and they would become tenants in common, subject to partition, according to their respective rights. Such is the clear construction of this agreement. It does not contemplate the sale of the land or the division of any proceeds therefrom. A reference in the bill to the act of Congress of the 26th of May, 1830, (4 Story's Laws, 2197,) appears to be for the purpose of obtaining an injunction to restrain Hobson from receiving any money from the treasury of the United States, appropriated *194 that act. But the bill is not framed with a view to enforcing any rights growing out of that act, but prays that Hobson may be compelled to perform the agreement of the 10th of November, 1810, twenty years before that act was passed. It is true that there appears upon the record, an agreement entered into between these parties, bearing date the 25th of September, 1830, relative to a division of the money to be paid by the government under this act. But this was an agreement made after the commencement of this suit, and which we cannot notice for several reasons. If any relief is to be given on the basis of that agreement, it should have been brought before the Court below, by a supplemental bill. But another insuperable objection is, that by an express stipulation in the agreement, it is not to be made use of in this case. This stipulation is as follows: "The said parties mutually agree and covenant, that this contract and agreement shall not be used by either of them, nor at any time held or interpreted in the suit aforesaid, or in any other suit, or in any other Court, or in any proceedings, whether in Court or out of Court, under the aforesaid contract, (the contract of the 10th of November, 1810,) as affecting, changing, or in anywise disturbing the rights of either in the matters aforesaid; but the suit aforesaid shall be conducted, and any other suit which either of them may think proper to bring, founded on the contract aforesaid, may and shall be conducted, in all respects, as though this contract had not been entered into."

In addition to this, the counsel on both sides declined, upon the argument, making any use whatever of this agreement. It must, therefore, be dismissed, as having no bearing upon the case. And if so, there is no proof whatever that Hobson had received any money on account of his land. The defendant, Hobson, was under no obligations to accept either of the propositions of the complainant, as stated in the bill. There is nothing in the contract of 1810 that called upon him to do this; and especially after he had, on his part, complied with the provisions of that contract. And if the agreement of 1830 is laid out of view, there is no proof to show that Hobson had received nine thousand two hundred and fifty dollars, as is assumed in the decree, and made the ground upon which he is ordered to transfer and assign to M`Arthur, all his right, title, and interest in the whole ten thousand *195 acres of land, relocated and surveyed by M`Arthur. This could not have been done under the prayer for general relief. The Court, under this prayer, will grant such relief only as the case stated in the bill, and sustained by the proofs will justify. The frame and structure of the bill in this case is for a specific execution of the contract of the 10th of November, 1810, which provides only for the valuation of the lands, and makes no provision for the sale of the land or the payment of any money. And if the facts would justify a prayer for any such relief, the bill should have been framed with a double aspect; so that if the Court should decide against the complainant in one view of the case, it might afford him relief in another. But this bill is not so framed.

The decree of the Circuit Court, must, therefore, be reversed. But, as the rights of the heirs of M`Arthur may depend, in some measure, upon the contract of the 10th of November, 1810, connected with what has since taken place, under the act of Congress, we think the bill ought to be dismissed, without prejudice.

It is accordingly adjudged and ordered, that the decree of the Court below be reversed; and the cause remanded to the Circuit Court, with directions to dismiss the bill, without prejudice.