Perrin v. Granger

33 Vt. 101 | Vt. | 1860

Redfield, Ch. J.

-I. This case upon the merits of the -defence, seems to us to-be substantially the same as it was when before this court 'and decided two .years ago; 30 Vt. 595. It was ’then held that upon the constitution and by-laws of the society the tax was not so voted and assessed, as to justify the sale of the pew in question.

This is there put upon many grounds, not attempted to be obviated now. 1. The statute requites the shares to be defined; 2, the assessments to be upon the shares, and 3, the forfeiture or sale as well as the assessment, to be in conformity with the provisions of the constitution and by-laws of the corporation. Nothing of this appears in the present ease. We understand the 16th article in amendment of the 11th, was adopted in 1856, after the vote and assessment of this tax. It could not, therefore affect the rights of these parties. We think, therefore, that the former decision of this court concludes this part of the case.

II. In regard to the objection to the form of the action, we think the doctrine established, upon careful consideration, and elaborate discussion in Bakersfield Congregational Society v. Baxter, 15 Vt. 119, and Kellogg v. Dickinson, 18 Vt. 266, must be considered as settled in this State, that in ordinary cases the pew holders in meeting houses, or churches, built by incorporations under the statute, have only a right of occupancy in their seats, subject to the superior rights of the society owning the fee of the church, and worshiping in it. This is much the same estate which the holder of a pew has in England, in the established church, where the fee of the church is in the rector, and the pew holder has only an easement, or incorporeal hereditament.

In all such eases the appropriate remedy for a disturbance in the enjoyment of the right is trespass on the case. That indeed is the only remedy for the disturbance of the enjoyment of such rights ordinarily. The right to occupy a pew is such that in some cases it is held that trespass or ejectment will lie. But not for a mere disturbance in the use, such as is proved in the present case. In Kellogg v. Dickinson, supra, it is expressly decided that case is the proper remedy for the owner of a pew in a meeting house against one who disturbed him in the possession of his pew unlawfully.

We think both defendants must be regarded as jointly liable for the disturbance, one being accessory to the act of the other ; both are principals and liable to the action.

We think the plaintiff may well maintain the action. As is said in this case, in the 30th Vt. 598, it would seem as if he is the only person who could sue, unless it be the heirs. And so long as the heirs acquiesce in the suit being brought by the administrator, courts presume it rightful, unless it is shown that the property has been distributed to the heirs, or at all events, gone into their actual possession and control; McFarland, Adm’r, v. Stone, 17 Vt. 165. The defendants have no interest in this question, as between the heirs and administrator, except to have the suit in such form as to be a bar to a future action. The administrator until he surrenders the property to the heirs, may occupy a pew himself or lease it. ITe is, therefore, injured, and in his representative capacity, by any disturbance in the possession, which would interfere both with the use and the obtaining rent from others. He may probably bring the suit in his own name without setting forth the capacity in which he holds the possession, or he may declare, as administrator, for an injury since the decease of the intestate, as he has done in the present case. In such case his letters of administration are requisite to be shown as part of his title, while in other cases his representative character is admitted unless denied by special plea, either in bar, or in abatement; Manwell, Adm’r, v. Briggs, 17 Vt. 176; Trask v. Donoghue, 1 Aikens 370; Clapp v. Bradley, 1 Vt. 151; Aldis, Ex. v. Burdick, 8 Vt. 26.

The form of the declaration in some respects is not very appropriate to the specific injury sustained, but we think it sufficient upon the general issue and notice of justification. It sufficiently informs the defendant of the cause of action shown on trial.

Judgment affirmed.