Town of New Market v. Smart

Bellows, J.

The locus in quo was conveyed by personshaving title, May 30th, 1803, to the inhabitants of New Market, to have and to hold the same granted premises, Avith the buildings thereon, to the said inhabitants of NeAv Market as a body politic and corporate, and to their successors forever, “to and for the use of the minister uoav settled in said tOAvn, for and during the term of his ministry in said toAvn, or as long as he shall continue to be the settled Congregational minister of said town, and then to be and remain as a parsonage for the use of the minister of the Congregational persuasion that shall be settled there.”

It is objected that this is a conveyance to the inhabitants of New Market, and not to the toAvn as a corporation; and therefore that this action must fail for want of title. But we think the objection is not AAell founded, as the grant was to the inhabitants in their collective capacity as a permanent body and having successors, and with the poAver to hold the land forever, and this is not an unusual mode of describing a municipal corporation; Chapin & Wife v. School District, 35 N. H. 450, where the conveyance was to that part of the inhabitants of Winchester that now does, or may hereafter, inhabit within the second School District in said Winchester forever, for the sole purpose of supporting a *96 school in said district, habendum to the inhabitants of said School District and tbeir successors forever, and it was held that this took effect as a conveyance to the District.

See also, Foster v. Lane & al., 30 N. H. 305; Mayor, &c., Lynne Regis, 10 Co. R. 123, a. note; Master &c., of Sussex and Sidney College v. Davenport, 1 Wils. 184; Angell & Ames on Corp. 206, and cases cited; 4 Greenl. Cruise Dig. 264.

The question then arises, whether the title acquired by this grant vested in the town in its municipal, or in its parochial, character, and if in the latter, whether the town still retained such title after the incorporation. of a parish, and after the town had ceased to have parochial rights and duties.

It is quite clear that such rights and duties belonged to towns before the law of 1819, known as the toleration act, and continued after that act in respect to contracts then existing with settled ministers; and that in the discharge of those duties the action was in the name of the towns, and through the instrumentality of town meetings, although members of dissenting religious sects neither acted in such meetings, nor were subject to be taxed for such purposes, as appears to have been the fact in the case before us. Such also was the fact in Massachusetts. Dillingham v. Snow & al., 3 Mass. 282 ; Same v. Same, 5 Mass. 547 ; Jewett v. Burroughs, 15 Mass. 464 ; Milford v. Godfrey, 1 Pick. 91 .

And it is equally clear that these parochial rights and duties were ■ largely exercised by parishes, distinct from municipal organizations ; and for that purpose, towns were often divided into two parishes, to which by law were committed these parochial duties. In other instances, such parishes were composed of parts of two or more towns.

If no other provision for the performance of such parochial duties was made, it was by a general law imposed upon the towns.

■ In Massachusetts every town is considered to be a parish until a separate parish be formed within it. First Parish in Brunswick v. Dunning & al., 7 Mass. 447 ; Ludlow v. Sikes, 19 Pick. 323 .

The grant, then, being for the use of the Congregational minister then settled in town, during his ministry, and then to be and remain for the use of his successors in that office, the title must be regarded as vested in the town in its parochial character, and not in its municipal capacity.

In Massachusetts this distinction is fully recognized in numerous judicial decisions growing out of the grants in the original charters of towns, of a share or right of land, for the first settled minister, and another for the use of the ministry; it being held there, that those lands were granted for pious uses, to be held in trust as a permanent fund for the support of religious worship, and accordingly by an early provincial statute, re-enacted under their State constitution, ministers of protestant churches were made sole corporations capable of taking in succession any parsonage lands granted to the minister and his successor, or granted to the use of the ministry.

This idea was evidently borrowed from the common law, by which the parson of a church, as a sole corporation, was deemed to be seized in right of the church, jure ecclesioe, of all the church lands.

*97 Hence, in Massachusetts, as in most, if not all the towns, lands were set apart for the minister, or the ministry, numerous questions arose as to the application of the funds accruing from such lands, and the state of the titles, which were settled by their courts.

In New Hampshire, on the contrary, as the courts have decided, in accordance with long usage, that the lands or shares so set apart for the first settled minister, and for the use of the ministry, vested absolutely,in the one case, in the first settled minister, and in the other, in the town, and were not held in trust for pious uses; see Baptist Society in Wilton v. Town of Wilton, 2 N. H. 508; Candia v. French, 8 N. H. 133. Questions of this sort have rarely been the subject of judicial investigation.

But, still, wherever there are grants to pious uses, as in this case, they are to be interpreted by the principles of the common law as modified by statute or usage.

By the common law, as the church was not a body corporate capable of holding an estate in lands, the rector was deemed to represent it; to take upon himself the person of the church, personam gerit, and as such when inducted into office became seized of the church property, including the glebe, the church edifice, tithes and oblations; but he was seized only in right of the church, andhadnopower of alienation beyond the time of his ministry; and, therefore, on his resignation, death, or deprivation, the freehold was said to be in abeyance until his successor was inducted into office. Com. Dig. Tit. Ecclesiastical Persons, C. 9, and also, Tit, Abeyance, A. 1 to 3; Co. L. 341, a.; Co. L. 300, a.; Com. Dig., Esglise G., 1; Town of Pawlet v. Clark, 9 Cranch, 292 , where is a learned opinion of Story, J.

It is obvious that the estate of the parson is peculiar. It is not a fee simple, for he cannot lease the land beyond the term of his office, nor is it strictly an absolute estate for life, because it terminates by his resignation or deprivation; but the freehold is so far in him, that he may maintain a real action to recover it. The fee simple, however, by the early authorities, is held to be in abeyance, even although there be a parson in office; the church having no capacity to take it. Co. L. 341, a.; Com. Dig., Abeyance, A. 1 to 3.

But, however this may be, and whether the fee simple may be regarded as in abeyance during the life of the parson, or not, the glebe is the dowry of the church, and in its right is it held by the parson. Pawlet v. Clark, 9 Cranch, 329 , and cases cited.

In Massachusetts, where the minister is by statute made a sole corporation, capable of taking in succession the parsonage lands, it is held that his rights are clearly defined at common law; that he holds the lands in right of the parish or church; that, on his resignation, deprivation, or death, the fee is in abeyance, until there be a successor; and that during the vacancy, the parish or church have the custody, and are entitled to the profits of the parsonage. Weston v. Hunt, 2 Mass. 500 ; First Parish of Brunswick v. Dunning & al., 7 Mass. 445 .

. So it is held in Massachusetts, that lands granted to a town for the *98 use of the ministry, vest in the town in its parochial capacity, and that upon the erection or incorporation of the first parish in said town, the lands vest in the parish, which succeeds to the parochial rights and duties before belonging to the town; Milton v. The First Parish in Milton, 10 Pick. 447 . This was a writ of entry by the town of Milton against the First Congregational Parish in Milton. This parish was duly incorporated in 1818, and consisted of all the Congregational inhabitants, not belonging to any religious Society out of town; and provided that the parish should be deemed to be the successor to the town, as far as relates to parochial proceedings,rights,immunities, duties, contracts, and undertakings ; and also, that nothing in the act contained should be construed to divert the use of the ministerial lands from the intention of the donors ; or as altering or affecting the title to any such real estate. Upon the principles before stated, the plaintiff was nonsuited.

Ordinarily, upon the creation of a parish composed of a part of a town divided geographically, or consisting of such inhabitants as are attached to a particular religious sect, which is termed a poll parish, what is left is by statute in Massachusetts, deemed to be the first parish; and the minister of that parish holds all the lands to him and his successor, which he held as minister of the town before the separation. First Parish of Brunswick v. Dunning & al., 7 Mass. 445 , decided in 1811. In this case, which was trespass for breaking and entering the plaintiffs’ close, being a lot of land laid out by the Pejepscut Proprietors for the use of the ministry, it appeared that the last settled minister was dismissed in the year 1800 ; and it was decided that the parish was entitled to the rents and profits of the land, and to the custody of the same, during the vacancy in the pastoral office, and was therefore entitled to recover. See also, Minot v. Curtis & al., 7 Mass. 441 , which is the case of a poll parish: Sutton v. Cole, 8 Mass. 96 ; First Parish in Medford v. Medford, 21 Pick. 199 . So in Ludlow v. Sikes, 19 Pick. 317 , where the town sold the land granted for the use of the ministry', and ajoplied the income derived from the price to that use, held that the town took the property in its parochial capacity, and that upon the separate organization of the first parish the fund became the property of that parish; and also held that whether the town act in its parochial capacity, or otherwise, is often determined merely by the nature of the act done. See also, Shrewsbury v. Smith, 14 Pick. 297 .

The case of grants and dedications to public and religious uses, forms an exception to the general rule applicable to private grants, which requires a grantee capable of taking the estate ; whereas, in the former, the grant may take effect, although there be no grantee hi esse.

Upon this ground it was decided in Pawlet v. Clark, 9 Cranch, 292 , before cited, that a grant by the crown of a township in sixty-eight shares, one of which was appropriated “for a glebe for the church of England, as by law established,” would take, effect as a grant of that share to the parson of the church of England in that town, whenever such church was there established, and a parson inducted into office, although at the time of the grant no such church existed, nor any grantee capable *99 of taking the fee; that the parson when so inducted, would take the land as an endowment, to be held in right of the church, jure ecclesice; and that in the mean time the fee would be in abeyance without any power in the crown to resume or recall the grant.

Upon a similar principle is the case of Beatty v. Kurtz, 2 Peters 566 , where a lot of land was marked off “for the Lutheran church,” upon a recorded plan and survey, for a burying ground, but no grant made, nor was such an incorporated Society in existence; but the land was used for interments for many years. 'The court consider the dedication of property to public or religious uses as an exception to the general rule requiring a particular grantee, and like the dedication of a highway to the public.

So in Cincinnati v. White’s Lessees, 6 Peters U. S. Rep. 431, it was held that an owner may dedicate land to the use of the public as an open square, without the legal title passing from him; and yet the public acquire a Tested interest in it, so that the owner cannot maintain ejectment to recover possession of it; and the court put it upon the same ground as dedications for charitable and religious purposes, and for public highways, where there is no grantee in esse to take the fee; and it is said that these cases are exceptions to the rule applicable to private grants, and from necessity. See also Second Cong. Soc. in Hopkinton v. First Cong. Soc. in Hopkinton & al., 14 N. H. 314.

Upon similar views, has been the course of the legislation in New Hampshire, it having been provided by ch. 144, sec. 7 of the Revised Statutes, that in the case of grants to unincorporated religious societies, such societies shall have the like power to manage, use and employ the same, as incorporated societies now have or hereafter may have by law; and also, empowering them to sue and be sued in respect to such grants; and generally making them a corporation so far as necessary to effect the purposes of those provisions.

So, also, by sec. 8 of the same chapter, the trustees, deacons, church wardens, or other similar officers, of all churches and religious societies, are made bodies corporate for the purposes of taking and holding in succession, all grants or donations, whether of real or personal estate, made either to them and their successors, or to their respective churches, orto the poor of their churches.

Sec. 10 provides that the minister of every church or religious society of whatever denomination, shall be capable of taking in succession, any parsonage land granted to the minister and his successors, or to the use of the ministry: or granted by any words of Wee import; and may prosecute and defend in all actions touching the same.

It is further provided by sec. 12, that no conveyance by any minister, of lands by him held, shall be valid any longer than he shall continue to be such minister, unless the conveyance be made with consent of the town, parish, or religious society, of which he is minister, or unless he be a minister of an Episcopal church, and shall make the conveyance with the consent of the vestry. And sec. 11 -requires that in conveyances by the trustees or deacons of any church, the consent of the church, or vestry shall be had.

*100 It is obvious that these provisions -in respect to the granting, holding and disposition of lands designed for the use of the ministry, are in substantial accordance with the common law, and with the course of the courts in Massachusetts, under the provisions of their statutes; and although they were enacted some years after the formation of the South Congregational Society in New Market, as an incorporated body, they afford a strong argument in favor of adopting the provisions of the common law, and the decisions in Massachusetts and elsewhere under it, and give to those decisions, a weight which they might not otherwise be entitled to.

Indeed, the provision in sec. 10, before cited, empowering ministers to take in succession lands granted to them, or to the use of the ministry, or granted by any words of like import, looks much like placing ministerial lands in New Hampshire upon the same footing as in Massachusetts. '

A similar principle seems to have been applied to the transfer of the rights acquired under such grants, as well as to the grants themselves, by the courts; by which in the case of land granted for the use of the ministry, the freehold has been deemed to be in the town or parish, according as the parochial rights and duties were found to be in the one or the other, and shifting as those rights and duties by law pass from the one to the other.

Indeed, considering the nature of such grants, and that no grantee in esse capable of taking the fee is necessary, there can be no objection, as we can see, to holding that the person or corporate body having the duty of making application of the fund to its legitimate uses, is so far seized of the property as to be able to hold it against the original grantor, and also to maintain a suit to recover possession of it.

In the Dublin Case, 38 N. H. 484, a bequest was made to a town in trust for the support of the Christian religion in a religious society in that town, the interest to be paid to its minister. This was then a voluntary society, but after the testator’s death, it became a corporation under the statute ; and it was held that the beneficial interest in this fund vested in the corporation, although formally not the same body as the other.

• In New Hampshire, the minister was not, until the Revised Statutes, understood to be a sole corporation capable of holding ministerial lands in succession; but the same object was often sought to be accomplished by a conveyance to the town, to hold in trust, for the use of the ministry, especially where no incorporated religious society, capable of taking the title, existed. But upon the incorporation of the parish entitled to the use of the property,, so as to render it capable of taking the title, and in fact, mailing it the successor of the town in respect to its parochial rights and duties, such title, though but the legal estate, would, upon the principles adverted to, become vested at once in the parish, and to this we can see no objection.

It is true, the grant may be in such terms as to show an intent to make the town a perpetual trustee — and in such case the law would carry it *101 into effect; but when the grant is to the town for the use of the ministry, or the settled minister, as in this case, it may well be regarded, as in .Massachusetts, as set apart for the support of public worship, and as vesting the title in the town in its parochial character, and in such legal body as may afterwards succeed to such parochial rights and duties.

To hold that the property in this case vested in the town in its municipal character, would be manifestly unjust and contrary to the plain purposes of the grant, which was to aid in the support of a minister, in that place, of the Congregational persuasion; and especially as the taxes from which the price was paid were assessed not upon the inhabitants of the town generally, but as the jury might have found, upon that portion only who belonged to the Congregational Society, or at least who did not belong to any other religious sect, as such only, under our Bill of Bights, could have been lawfully taxed. Besides, the money was actually raised at a meeting called, not of the inhabitants generally, but only of those qualified to vote in Congregational ministerial affairs, although acting in the name of the town ; thus furnishing an example of the distinction alluded to between the parochial and municipal character with which the towns were invested.

At the time of this grant, there appears to have been a Congregational Society in the town with a settled minister, and there is evidence from which a jury might have found, that, in 1829, the individuals composing it were organized under the statute of July 1827, and became a body corporate and politic, capable of taking and holding real and personal estate for the use of the Society; that from this time this Society managed the parsonage without interruption from the town until December, 1861, occupying or leasing it and receiving the income during all that period, and maintaining, every year, religious worship of the Congregational order at the old house until 1840, when they procured a new one, which they have ever since occupied.

Under these circumstances and with the other evidence adduced, the jury might have found that the Society thus organized as a , body corporate, was substantially the same as the voluntary religious Society in existence at the time of the grant in question, and for the use of whose settled minister the grant was made. See the Dublin Case, 38 N. H. 513.

Upon such a finding, the Society having all the powers of the body politic, known as a parish, and having thus succeeded to the parochial rights and duties, which in respect to religious worship of the Congregational order at this place, had before belonged to the town, and the town being entirely divested of such rights and duties by the law of 1819, there being then no settled minister in that town, there could, as we conceive, be no objection to holding that the title to this land became vested in the Society.

In respect to parishes in Massachusetts, it is, as we have seen, well settled that such is the law, and no difference is perceived between those parishes and such incorporated religious societies.

Indeed, it is expressly decided in First Parish of Sutton v. Cole & al., 8 Mass. 96, that such incorporated society is to every intent a *102 parish; and that in their Bill of Eights, and in their laws, the terms, parish, and religious society, have the same meaning and effect.

By our laws of 1819 and 1827, religious societies formed under them, were declared to be bodies corporate and politic, with perpetual succession, and with all the powers, privileges, and immunities, and subject to all liabilities, incident to corporations of a similar nature; and with power to purchase and hold land for a place of public worship, and for a parsonage house and other buildings connected therewith, and for supporting the ministry in said society; and to improve, sell, convey, and dispose of the same for the sole use of the society; giving such societies powers to choose the necessary officers, make by-laws, and to raise and assess taxes upon the polls and estates of its members; and giving to the assessors and collectors of such societies, the same powers in assessing and collecting taxes, and subjecting them to the same penalties, as similar town officers are liable to.

The powers thus conferred upon these societies are ample, so far as parochial affairs are concerned, and as much so, for aught we can see, as those conferred upon parishes; and we can perceive no objection to holding that where such society is the successor of the town in respect to its parochial duties, it also succeeds to its corresponding parochial rights. In both respects the society is the legitimate successor of the town, which, although it may continue to exist in its municipal capacity, has no longer its parochial functions; they being transferred to the parish which succeeds it, by operation of law.

The objections in the way of taking this view are more formal than real, arising mainly from these separate municipal and parochial functions being exercised under the same corporate name ; but bearing in mind that there were substantially two different corporations, and that the new parish has succeeded to the rights and duties of one, the propriety of holding that it takes the lands held by it for parochial use, becomes apparent; especially when as to such public rights and interest no embarrassment arises from the want of a deed of conveyance.

If, then, the religious Society in New Market, so incorporated in 1829, is found tobe the successor to the voluntary Society existing at the time of this grant, and thus has succeeded to the parochial rights and duties in respect to that parish, which before belonged to the town, we think the Society has such an interest in this parsonage that it cannot be deprrred of its possession by the town.

So far as we have discovered, these views have not been the subject of discussion in our courts.

In Brown v. Concord, 33 N. H. 286, where in 1807 there was a devise to the town of Concord “for the use and support of the Congregational gospel minister, who shall exercise the duties of that office, where the meeting house now stands, forever,” it was held that this was not a devise upon condition that the town should forever support such minister ; nor was tins clause a conditional or contingent limitation of the devise; and that on there ceasing to be such minister, the heirs of the devisor had no interest in the estate; but in such case, the whole would go to the town.

*103 In this case no question was raised between the town and the religious society, nor whether the town took the title in its parochial or municipal character ; but the only question was whether tire heirs had any interest in the property when there ceased to be such minister at that place.

As the verdict is to be set aside, it is unnecessary to examine the question of adverse occupation as raised on the evidence reported.

It is, however, unquestionably true, as a general proposition, that the possession of the cestui que trust will not be deemed to be adverse so long as it conforms to, or is consistent with, the terms of the trust deed; or in other words, so long as the trust is a continuing and subsisting one, and acknowledged and acted upon by the parties; but when it is disavowed by the party in possession, whether it be the trustee or cestui que trust, and he distinctly with the knowledge of the other disclaims to acknowledge the trust, and to hold under it, then the possession from that time becomes adverse.

The act or disclaimer, however, which is thus to change the character of the possession, should be clear, unequivocal, and distinctly brought to the knowledge of the other party.

These views are fully recognized in the case of Tripe v. Marcy, 39 N. H. 445, and cases cited; Willison v. Watkins, 3 Peters, 47, 52 ; Kane v. Bloodgood, 7 Johns. Ch. Rep. 90 , where the cases are ably reviewed and considered; Angell on Lim. 161, 171—4; Boone v. Childs, 10 Peters, 223 ; Livingston v. Pendergast, 34 N. H. 551; see also Zeller v. Eckert, 4 How. U. S. 289; Sherman v. Champlain Trans. Co. 31 Vt. 162 ; and Atty. General v. Prop. of Meeting House in Federal Street, Boston, 3 Gray, 1 .

This doctrine was directly applied to the case of landlord and tenant in Willison v. Watkins; and to that of mortgagor and mortgagee in Tripe v. Marcy; and was recognized by both cases as applicable to the relation of trustee and cestui que trust, and to tenants in common; as it is, also, by Chancellor Kent in Kane v. Bloodgood . Some confusion has aiúsen upon the subject of the statute of limitations in respect to trusts, from the rather loose and inaccurate language of some of the earlier cases; from which it has been laid down in general terms that no length of time bars the claim between the trustee and cestui que trust; as in Bickford v. Wade, 7 Sumner’s Vesey, 87, and note C; but, upon a careful examination, the principle is found to apply only to those technical trusts which are the mere creatures of equity, and not within the cognizance of courts of law, at all, but that wherever the trusts are subject to remedy by action at law, the statute of limitations will be applied in equity the saíne as at law. Kane v. Bloodgood, 7 Johns. Ch. Rep. 90 ; Murray v. Coster, 20 Johns. Rep. 576.

Should the question of adverse possession arise upon another trial, the enquiry would be. whether the Society under whom the tenant claims, has disavowed a holding under the trust, or set up a claim to the property adverse to the title of the town; and this with a distinct knowledge on the part of the town of such disavowal or claim; and if so, whether *104 there has been since that time an uninterrupted occupation by the Society, or its tenant, of the land.

Should it turn out, however, that the right originally vested in the town in its parochial character, has passed to the incorporated Society, this question of adverse possession will not be material."

But it is contended that tbe case does not show that either the defendant or his lessors ever claimed a freehold, and that this possession must be regarded as subordinate to that of the town.

But it seems that tbe Congregational Society so far back as 1824, assumed the control of the parsonage, repaired and leased it from time to time, down to the lease to defendant in 1853 ; called meetings of tbe Society, claiming to own it, and with articles in the warning of such meetings, respecting the sale, or other disposition of it, by the Society; and we are 'not prepared to say there was not evidence from which the jury might have found an occupation, under claim of title, by the Society.

Nor do we understand it to he essential that the possession, to be adverse, should be under a claim of an estate equal to a freehold, but it is enough, we think, if tbe possession was under a claim of title to the land, although the title claimed was merely in trust for the use of the settled minister of that Society forever, and with no claim of a right to dispose of the fee.

It is true that a person who is wrongfully in possession of the land of another, cannot defeat a writ of entry by qualifying his entry, and showing that he claimed less than a freehold; but we think that when there is an actual ouster and the requisite length of possession, it is a good bar to a writ of entry, although the possession was under a claim of title to hold the land in trust for another.

Upon these views, the verdict directed by the Court must be set aside, and there must he A neto trial.