The opinion of the Court was by

The defendant conveyed his real and personal estate to bis daughter, the wife of the plaintiff, and at the same time took from the plaintiffs a bond with a condition for the support of himself and wife during their lives, and a mortgage of the samo real estate to secure performance. Before these conveyances were made, the defendant had conveyed his real estate in mortgage to John M. Bailey, one of the referees, to secure a debt, which remained unpaid. As usual, difficulties arose between them, which they were desirous of adjusting, and of dissolving the contract.For this purpose, they entered into a reference of all demands under the statute. The referees thinking, that their award might not be conclusive upon these claims or titles to the estate, caused a bond to be executed by the defendant, which recites, that they have submitted all their demands to the referees, and obliges him to perform the award. The referees made their aw'ard in writing, directing the plaintiffs to release to the defendant their title to certain portions of the real estate described ; ami the defendant to release to them all his interest in the remaining portion. If the award had been performed by the execution of these releases, their respective rights in the real estate would have been finally determined, and the rights of the defendant as mortgagee would have been annihilated. The bond providing for the maintenance was? *254not named in the award ; nor the debt or mortgage to John M. Bailey; nor the respective claims for non-performance by one party and for improvements by the other. Nor is there any thing in it, which indicates, that the releases of the real estate were to be made in satisfaction of all or any of these claims, or that it was a decision of all matters of difference, or that it was upon or respecting the premises. Unless parol evidence can be admitted to explain or vary the award, some, if not all of these matters may be the subjects of future litigation. But such evidence cannot be received to vary a written submission or award. Barlow v. Todd, 3 Johns. R. 387; De Long v. Stanton, 9 Johns. R. 38; Efner v. Shaw, 2 Wend. 567. An award may be good, when it does not embrace all the matters submitted by the parties. It will be presumed, that the matters not named in the award were not made known to the arbitrators. When it does appear, that other existing causes of action submitted and not named or acted upon by the award were made known to them, the general rule is, that the award is bad for the whole. And parol evidence may be received to show, that such other causes of action were made known to them. Barnes v. Greenwel, Cro. Eliz. 858; Risden v. Inglet, ib. 838; Middleton v. Weeks, Cro. Jac. 200; Bradford v. Bryan, Willes, 268; Hawkins v. Calclough, 1 Burr. 277; Randall v. Randall, 7 East, 81; Mitchell v. Stanley, 16 East, 58. Where there is no clause in the submission providing, that the award shall be made on all the matters in difference or points submitted, if the matters omitted are not connected with those decided, so that injustice will be done, the award may be sustained. Simmonds v. Swaine, 1 Taunt. 549. In this submission, if the bond may be so regarded, there is no such clause. But the matters before named as omitted, are so connected with the title to the estate, that it is very apparent, that injustice will be' done by permitting them to remain unadjusted, if the award be sustained. It is contended, that the bond has reference to the submission under the statute, that it was intended only to enforce the award, that might be made by virtue of it, and that it does not therefore authorize the referees to decide upon the title to real estate. It has been the settled construction of the statute, that submissions under it cannot authorize a decision upon the title to real estate. Fowler *255v. Bigelow, 8 Mass. R. 1. The argument is not without force derived from the language of the bond, that it was intended only to enforce a performance of the award upon the submission under the statute, and that it was not designed to be a new and distinct submission. If it may be so regarded, all demands having been submitted, it would authorize a decision upon the title. Marks v. Marriot, 1 Ld. Raym. 114; Sellick v. Addams, 15 Johns. R. 197; Byers v. Van Deusen, 5 Wend. 268. And when the submission authorizes a decision upon the title, equity will decree a specific performance of the award. Bouck v. Wilber, 4 Johns. Ch. R. 405; McNeil v. Magee, 5 Mason, 245. It is not however necessary to decide upon the effect of the bond, for in whatever light it may be regarded the award cannot be sustained for the reasons already stated.

Nonsuit confirmed.