Bailey v. Kilburn
51 Mass. 176
Mass.
1845
Check Treatment
Wilde, J.

The first question discussed in this case is, whether the school district, under whose title the defendant justifies the alleged trespass, took or derived any legal estate under or from the deed of Zachariah Harvey.. The objection is, that no title passed by that deed, as no grantee is named to take the estate ; it being a mere dedication to public uses. It was argued by the defendant’s counsel, that although this deed cannot operate by way of grant, it may by way of estoppel. But the answer is, that there is no party, in this case, that can take advantage of any estoppel; and that it is as necessary that there should be parties to a deed, in order to create an estate ty estoppel, as to pass an estate by grant.

*179But although it must be admitted that no legal estate passed by this deed, yet we think a trust was created, which this court, as a court of chancery, would be authorized and bound to protect; and that the court would, if necessary, appoint a trustee to take the legal estate from the heirs of Harvey, who would be bound to convey to him the legal title to the premises. Bartlett v. Nye, 4 Met. 378. This trust was created, according to the terms of the deed, for the use and benefit of the neighboring inhabitants of that part of the lot which was appropriated for the use of a school house; and the defendant offered to prove that the inhabitants in the vicinity had associated as a school district, and had assumed the ownership and management of the lot, including the locus in quo. The defendant also offered to prove that Samuel Brown, the agent of the school distric t, in the spring of 1831, leased the said lot to the plaintiff for the term of ten years. This evidence was rejected, on the ground that the agency of Brown could be proved only by the record of the proceedings of the school district, and that the books offered as such were not admissible in evidence, as it did not appear that the said school district had been duly organized. We are, however of opinion, that the lease should have been allowed to be proved, and that the plaintiff would have been estopped to deny that Brown was duly appointed agent by the school district, and that the said district had a good title to the premises demised. No principle is more clearly established, than that a lessee, after enjoyment, cannot be permitted to deny the lessor’s title. And if he afterwards purchases another title, he cannot set it up against his lessor, before he restores the possession at the expiration of his lease. Driver v. Lawrence, 2 W. Bl. 1259. Cooke v. Loxley, 5 T. R. 4. Cobb v. Arnold, 8 Met. 398. Nor is it necessary to prove that the agent was duly appointed; for the plaintiff is estopped to deny it, for the same reason by which he is estopped to deny the title of his lessors.

New trial granted.