Barnard v. Whipple, 29 Vt. 401

Barnard v. Whipple

29 Vt. 401 | Vt. | 1857

The opinion of the court was delivered by

Isham, J.

As the plaintiff and defendants claim title under Luke Williams, they are not permitted to deny his title to the pew mentioned in the declaration. As between these parties the title of Luke Williams need not be shown; and the party will prevail in this action who has the better right from him; Brooks v. Chaplin, 3 Vt. 281. The doctrine seems now well settled that the right to a pew in a meetinghouse is to be regarded as real estate. At common law such a right is an incorporeal hereditament. The freehold of the church is in the parson for the time being. In this country the title generally depends on statutes enacted to regulate this kind of property. In some instances the right is declared to be an interest in real estate, and in others an interest in personal property. In 1 Greenleaf’s Cruise on Real Property, 44, it is observed that, “ It follows, in the absence of any statute provisions, that this kind of property is to be considered as real estate in all cases arising under the statutes of frauds, or of conveyances, or of descents and distributions. The right is held subject to that of the proprietors to repair and alter the edifice for the purpose of more convenient worship.” The same doctrine is sustained in 3 Kent’s Com. 489; Bates v. Sparrell, 10 Mass. 323; Baptist Church of Ithica v. Bigelow, 16 Wend. 28. In the case of Kellogg v. Dickerson, 18 Vt. 266, it was observed that “the right to a pew was unquestioned in this state, and that the property therein is considered as partaking of the character of real estate.” The same doctrine was held in Hodges v. Green, 28 Vt. 358. In all these cases it was held that while the house remains, the pew holder may maintain ejectment, case or trespass, according to the circumstances, if he be disturbed in his right.

*404The assignment of the certificate by Williams to Whipple of his right to the pew transferred no legal title. That right could be transferred only in the manner provided for the transfer of real estate. It possibly might be regarded as a contract of purchase, which a court of equity would decree to be specifically performed by the execution of a valid conveyance, not only as against Williams, but his attaching creditors having notice of that contract. The fact that the defendant was in actual possession of the premises, is a circumstance which has been frequently held to be sufficient notice to third persons of the contract and claim under which the possession is held. But the claim is merely equitable, and which courts of equity alone can protect. The plaintiff, by the levy of his execution, has acquired the legal title, and at law the legal title must prevail over the equitable interest.

The judgment of the county court is affirmed.