58 Me. 479 | Me. | 1870
The piece of land demanded in the writ is part of a parcel which was conveyed July 13, 1802, by John Church, with warranty of title, and release of dower by Church’s wife, to “ David Moors, treasurer of the First Meeting-house Society in the center of Farmington, and his successors in said office, for the use of said society so long as it shall be improved for public use,” habendum, “ to the said David Moors and his successors in said office, to the use of said society to their use and benefit forever.” The deed appears to have been made in consideration of $100, the receipt of which is acknowledged, and the property to have been thus conveyed to Moors, as treasurer of a voluntary, unincorporated association, composed of about fifty persons, who, on or about “ ye 3d May, 1802,” at Farmington, subscribed a paper declaring that they are “ desirous to unite and add to the respectability of this town, and are sensible that this end can be attained in no way so well as by building a meeting-house, for public and social worship, near the center of said town,” and, accordingly, “ do agree to form ourselves into a body politic with a determined resolution to effect the building of said house, and we do severally pledge our honor to abide by the regulations hereunto subjoined to the completion of said meeting-house.” The first of these regulations is as follows :
“ 1st. Said meeting-house is to be the exclusive property of said society.” Their determined resolution seems to have been crowned with success; a large parcel of land was purchased and conveyed to their treasurer, as above recited, a meeting-house erected, the*484 pews sold, and the house occupied for public worship more or less by various denominations for quite a long series of years.
After the business connected with the erection of the meetinghouse and the sale of the pews was adjusted, the meetings of the association seem to have been very infrequent. But we find a record dated March 1, 1813, of a meeting at which a new treasurer was chosen, and a committee to confer with the town respecting the compensation to be allowed by the town to the proprietors for the use of the house to hold town meetings in. This meeting was twice adjourned for the purpose of petitioning for an act of incorporation, but nothing appears to have been done about it at that time, and no record is found of any meeting of the association from that time until September, 1821. But in 1822 (prior to which time it is agreed that David Moors, who held the legal title to the land in trust for the proprietors, was deceased), an act of incorporation was procured apparently in pursuance of action taken at the meeting of the association in September, 1821, and certain gentlemen, including a considerable number of the original proprietors, “their associates and assigns,” were “incorporated into a body politic by the name of The Proprietors of the Center Meetinghouse in Farmington.” By the second section of the act of incorporation, it was “ further enacted that the land heretofore conveyed to David Moors, treasurer of said proprietors, and now deceased, and his successors in that office, on which the meeting-house aforesaid stands, be and hereby is confirmed to such treasurer as said proprietors shall hereafter choose, for the use and benefit of said proprietors, agreeably to the intention of the original grant; and the treasurer, so hereafter to be chosen, shall be to all intents and purposes the successor of said Moors.” By the third section, the proprietors were empowered to raise money for the purpose of repairing the meeting-house and a proper improvement of the land, and for other incidental expenses to be assessed “ on the several proprietors of pews in said meeting-house, according to the relative value of the respective pews they may own therein as established by said proprietors,” and the private property of each proprietor*485 was charged with the payment of such assessments, “ in the same manner as it would be holden to pay State, county, and other taxes.”
The proprietors seem to have promptly organized under the act of incorporation, and to have held their first meeting April 24, 1822, when, among other officers,.they chose John Church, the son of the original grantor of the lot, their treasurer, and appointed a committee to form a code of by-laws and regulations, and report at a future meeting, and a committee to see what repairs are necessary, and receive proposals for making them and report. At an adjournment, May 4, 1822, they voted to accept the code of bylaws reported by the committee, acted on the report of the committee on repairs, and voted that the assessors should “ ascertain, as far as possible, the owners of pews,” and sell the pews, then to be erected in the gallery, to the highest bidder. At a further adjournment, on June 15, 1822, they “ voted that all votes of said proprietors, prior to their incorporation, be valid,” accepted a plan of forty-five pews to be erected in the gallery, and postponed the sale of them at auction previously voted, but authorized the sale by the assessors of one pew on the ground floor held in common, and of the gallery pews at private or public sale, the treasurer to give quitclaim deeds of them. On the 28th of December, in the same year, among other things, they voted to dismiss the second article in the warrant, which was, “ to see what method shall be taken to sell the pews in the gallery,” but passed a vote to build them, agreeably to the plan before accepted, and Have them completed in eighteen months.
This matter of the sale of the gallery pews seems to have been the subject of much discussion and frequent action, as also was the use of the lower floor by the town for town meetings in consideration of stipulated payments.
The forty-five gallery pews were completed at last, and, June 19, 1824, by vote of the corporation, they were offered for sale for a gross sum of two hundred and fifty dollars, and sold in ten shares for that price ($ 10 on each share in cash, and the balance the fol
By an additional act of incorporation, the provisions of the original act as to liability for assessments were “ so far altered and amended as that the pews of the proprietors only shall be liable for the payment of moneys assessed,” . . . “ and shall be considered and taken to be personal property; ” and the proprietors were authorized to raise moneys for defraying the expenses of such alterations, additions, or improvements to the house as they might think proper to make, and for such improvement of the land on which it stands, “ as is designated and intended in the grant thereof,” “ provided the proprietors shall accept this additional act within one year, at a legal meeting to be by them called for the purpose.” And the proprietors did so accept it at a meeting held for the purpose Jan. 10, 1829. In 1836, it is apparent from the records that the necessity of assessments for repairs had become urgent; a committee was raised to confer with the town or some denomination to see if
The testimony is, that for some years, about this time, the house was not occupied for religious •worship, and doubts were suggested whether the proprietors had not forfeited their rights under the Church deed. But no entry for a breach of the condition appears to have been made. In 1888, the project of making a conveyance to the county began to be agitated, and in June of that year, upon notice of a meeting to hear the report of the committee chosen to confer "with the county commissioners, and determine whether such conveyance should be made, the proprietors met and voted “ to instruct their treasurer to make and execute a deed of all the claims which they have to the Center Meeting-house and site, together with the common (reserving the ground now fenced out for a burying-ground), to the county of Franklin as a site for the court-house and other county buildings so long as it shall be occupied for that purpose, provided the said buildings shall be erected of brick, and within two years from the date of the deed.” A vote somewhat significant of the condition of the property at that time was also passed, authorizing the treasurer “to prosecute any person that shall make depredations on said meeting-house.”
The report of the committee chosen to confer with the county commissioners shows that the proposition of the county commissioners was “ to locate the court-house on the spot where said meetinghouse now stands, provided the proprietors of said house convey their claim to said housejmd land to said county for the purpose of building a court-house on said site, and to be held by said county so long as it shall be occupied for that purpose, and provided, also, that a site suitable for the erection of a jail should be given to said county.” It seems that the county commissioners’ proposition contemplated neither payment nor the performance of any act for the benefit of the proprietors, except taking the old meeting-house and
Prior to this, on the seventh of February, 1838, John Church, the original grantor, had made a deed of quitclaim to the proprietors of the lot originally granted to David Moors, “ containing two acres by estimation, being the land called the common, and including the site of the old meeting-house, but excluding what is now fenced as a burying-ground, which is to remain as such; and the said common is always to be used as such; and the site of the meeting-house shall always be used for some public building, courthouse, town-house, or meeting-house.” This deed purports to be in consideration of $200, and a memorandum by the grantor upon the margin directs that it shall be placed in the hands of his son-in-law as an escrow, to be delivered when the consideration should be paid. It was not placed on record until July 18, 1839.
May 18,1839, the vote which was passed the preceding year to cpnvey to the county was reconsidered, and at an adjournment of the same meeting, the corporation voted, “ that the treasurer of this society be authorized and directed to convey to the county of Franklin all the right, title, and interest which this society has to ” (the premises demanded in the present suit), “for the purpose of a site for a court-house for the use of said county, provided the same shall be accepted by the county commissioners of said county as a full equivalent and discharge of all claims of said county on any individuals thereof for furnishing a court-house for ten years, the deed of conveyance to reserve to said society the use of said meeting-house for town meetings and meetings of worship in the lower story, so long as the same shall remain standing, but with liberty to the county to alter, repair, or fit up the same in a proper manner for holding the courts of said county, and also conditioned that said deed to be void whenever a court-house for the use of said county be erected on any other site.”
The keys seem to have been in the possession of the successive clerks of the courts. The courts have been held there regularly
His positions briefly seated are, that David Moors took an estate in trust for those who might become pew-holders in the house; that by. virtue of the act of incorporation, the same estate was transferred to such treasurer as the corporation might choose, and so came to John Church, jr.; that nothing passed to the county by virtue of John Church, jr.’s, deed, because it purports to be tbe conveyance of the proprietors who were merely the cestuis que trust, and not the holders of the legal title; that the legal title still remained in John Church, jr., as treasurer and trustee, and so came to this plaintiff upon his election as treasurer; that whatever had been the form of that conveyance, nothing could have passed by it, because neither the act of incorporation, nor any other statute, authorized the sale of the property, but only the holding of it in trust for the uses specified in the original conveyance from John Church, sr., to David Moors; that the vote of the corporation to sell, and the conveyance made' in pursuance of it, could not deprive the individual pew-holders of their rights; that this is a public charity, or, at all events, a trust, and that, therefore, the coimty could acquire no title by adverse possession; that the county claim under their deed, which is hut a conditional one, and that this is incompatible with the acquisition of a title by disseisin; that the county took their deed with notice of the trust, and therefore subject to it, and that thus the title of the defendants, both by deed and disseisin, fails altogether.
Llaving referred frequently to the records offered in evidence, it is proper to remark here, that though they are not in hook form, and there is no evidence that the clerk was sworn during many of the years, yet it is clearly proved that they came from a trunk which has been banded down from one clerk to another, and in which these files were carefully labelled and preserved; many of
Both parties in turn resort to these files for evidence upon which they rely, while each objects to the use the other proposes to make Of them for the same purpose, yet neither suggests so much as a doubt of their genuineness as minutes made contemporaneously, designed to serve as a record of actual transactions, or of their general accuracy. Under these circumstances, ancient as most of these records are, and inasmuch as the acts and doings of the unincorporated association were formally adopted and ratified as valid and binding by the corporation, we think neither party can' complain of their admission as competent evidence of the acts and facts therein recited.
We think David Moors took a fee-simple conditional in trust for the use and benefit of the original associates, and those who might afterwards become members of the association by the purchase or inheritance of the pews.
“ When property is conveyed to the use of a party not capable of taking the legal estate, it cannot vest in the cestui que use by the statute of uses; therefore, by a well-known rule of construction early engrafted on the statute of Hen. 8, if constitutes an estate in trust in the first takers.” Attorney-general v. Proprietors of Federal St. Meeting-house, 3 Gray, 44.
Here was no body politic or corporate capable of holding the fee which was to be held for the use and benefit not only of the original proprietors and builders of the house, but of those who might in process of time become associated with them as pew-owners, who, by the acquisition of a title to their pews, would not become tenants in common of the estate on which the house stood, ¡but would be entitled, nevertheless, to a beneficial interest and an exclusive right to occupy the particular portion of the house belonging to them under suitable restrictions, — an interest and right capable of protection under and by law, and entitled to such protection when redress for a wrong inflicted is seasonably sought in •the proper form.
The proprietors of the Center Meeting-house in Farmington, with the utmost deliberation, the subject having been canvassed by them in various aspects more than a year, made a conveyance of all their interest in the property here demanded to the county of Franklin, and warranted the same to the county against all persons claiming by, through, or under them; and this deed was executed in the name of the corporation by the plaintiff’s predecessor. We think the successor of John Church, jr., as treasurer, is estopped by that deed from asserting a title for the benefit of those who have warranted all their interest in the premises to the tenants.
Returning now to the act of incorporation under which the plain tiff claims: if it availed to vest the title in the treasurer for the use and benefit of the corporation, it is riot easy to see why the estate did not vest in the corporation as a use immediately executed by virtue of the statute of uses (27 Hen. 8, c. 10), the legal estate following the equitable use and interest.
Except when the duties of the trustee are active, no good can result from severing the legal estate from the beneficial use, and it was to avoid the embarrassment of titles thence resulting that the statute of uses was enacted.
There is nothing to indicate that the treasurer was to have any active duties to perform in relation to the estate, or that he was to be anything more than a mere depositary of the title for the use and benefit of the corporation. He was liable to change with annual elections, while the corporation, which was the cestui que use, was a permanent organization, capable of holding the legal estate more conveniently for all concerned. If the act of incorporation then operated to transfer the estate from the heirs of the original
What was the effect of the quitclaim deed of John Church, sr., to the corporation in 1838 ? Plainly, we think, for the reasons and upon the principles succinctly and clearly stated by Cutting, J., in Hooper v. Cummings, 45 Maine, 366, the only effect would be to abrogate the conditions annexed to the original grant so far as they attached to the immediate site of the meeting-house. The original grantor, without ever having entered for a broach of the condition, releases his claim to the estate by another deed to a, stranger. What was his claim ? A naked right to enter for a forfeiture whenever the condition should be broken,- — a right that could be exercised only by him or his heirs, — not by a stranger. The original grantor having alienated this, the condition is gone.
What estate did the proprietors have, then, at the time they made their deed to the county ?
That the deed of John Church, sr., made in 1838, and originally delivered to his son-in-law, Stewart, as an escrow, had been at that time perfected by delivery to the grantee on payment of the stipulated sum, we see no reason to doubt. The testimony of Mrs. Samuel Church, we think, is very far from showing that the payment by the proprietors was not made until some time between 1841-43. She says she does not know by whom the money was paid that Mrs. Church, sr., received at that time. If it had been paid by the proprietors and loaned by the widow, and again repaid at the time mentioned by Mrs. S. Church, it would still be likely to be spoken of in the family as the money she received for the deed to the proprietors. Mrs. S. Church’s testimony cannot be considered as overcoming, or, indeed, as conflicting with the presumption that the holder of the escrow did his duty in the premises.
Still assuming that the act of' 1822 availed to vest the estate in the treasurer for the use and benefit of the corporation as cestui que use, and holding that this use was executed in the corporation
Thus situated, they make a deed of a certain portion of the property to the county, covenanting to warrant the premises conveyed to the grantee against all claims by, through, or under them.
How can the demandant, claiming simply as the depositary of the title for their use, seeking to recover the property only that he may hold it for their benefit, expect to prevail ? Most certainly he is estopped by the deed executed by his predecessor, under the direction of the corporation. By means of this conveyance to the county the proprietors, while they curtailed the dimensions of their place of worship, secured a sound roof over their meeting-house for more than a quarter of a century without expense to themselves. Justice will not permit them as a corporation to repudiate the contract by which they accomplished it.
Who was injured by this arrangement ? Who has lost anything by it who is not estopped to complain ? The corporation had built and sold pews in the gallery; they had confirmed the titles to other pews there, originally granted by the proprietors before their incorporation. To their pew-holders the proprietors stood in the relation of trustees. The pew-holders had a beneficial interest in the property of the corporation and certain rights in their pews. Unless otherwise specially provided by statute, pews are real estate. The owners of them are to have appropriate remedies for any violation of their rights in relation to them. How shall those rights be vindicated ? The pew-holders are not tenants in common of the property. It is but a qualified title and ownership that they have in their pews. We think that their remedy, when their rights are
But in addition to the estoppel by deed which must prove fatal to the demandants’ suit, there is other matter shown in defense, which would effectually bar his recovery.
The county took possession of the premises in 1839, claiming to be the owners thereof, subject only to the condition made in the deed of the proprietors to the county, — a condition which has not yet been broken.
The fact tliat they entered claiming title under the deed, and that they still contend that the deed is valid and operative to give them a good title to the premises, does not preclude them from availing themselves of the limitation bar. They took possession claiming to own the premises, subject only to a liability to forfeit them if ever a court-house for the use of the county should be erected on any other site. They claimed, in all other respects, the absolute ownership. They exercised the lights and did all the acts indicative of ownership. Their possession was open and notorious, exclusive and adverse. They ignored all claims, both of trustees and cestuis que trust, within the limits which they claimed. The case is not within the principle of those in which it has been held, that as between trustee and cestui que trust the limitation bar does not operate, — that no lapse of time is a bar to a direct trust. There was a clear repudiation of the trust. They were not tenants in common with the corporation, but each occupied in severalty according to the terms of the grant. They removed nearly all the gallery pews in 1839. In disregard of the prohibition of the pew-holders in 1852, they removed the remainder. Whenever the
The case exhibits none of the elements of a public charity. As in the case of The Proprietors of the Meeting-house in Federal Street in Boston, 3 Gray, 49, “ it is entirely wanting in the quality of gift, donation, or gratuity from anybody to anybody.”
Purchase, property, settlement of accounts, use by the members, and proprietors who became pew-holders, have been the order of proceeding throughout until the conveyance to the county. The general public had no rights there except by courtesy of the proprietors. There was nothing either in the source or use of the proprietary property to indicate a design on the part of any one to establish a public charity. It is unnecessary to determine whether the acceptance by the corporation of the act of 1828, making the pews personal property, would limit to six years the right of the gallery pew-holders to redress. The county have had such a possession of the premises for a period of twenty-seven years prior to the commencement of this action as must be deemed an effectual bar to its maintenance. Judgment for the tenants.