| N.H. | Aug 11, 1876
Lead Opinion
FROM GRAFTON CIRCUIT COURT. Both parties claim through the same grantor. In 1848, Tilton and wife conveyed the premises in dispute to Davis and four others, as directors of the Wentworth Academy Association, and to their assigns and successors, in trust for the sole use and benefit of the said Academy Association forever. The grant of the estate was absolute, although held in trust for another. In the event of a failure to execute the trust the grant does not fail, nor does the property revert to the grantor. Tilton by his deed in 1848, conveyed his whole interest in the premises, and since its execution has had no title whatever in the premises. At the date of his deed to the plaintiff, having neither the possession nor the right of possession, he could convey nothing to the plaintiff.
On the other hand, John Currier succeeded in 1870-72, in buying up all the shares in the corporation and received a transfer of the same, with one or two exceptions, the owner of which could not be found. He thus became the principal person interested in the Wentworth Academy Association, which corporation is the cestui que trust of the premises. Having a very large beneficial interest in the premises, he conveyed the same to Colby just prior to June, 1872, who went into the possession, and soon after conveyed to the defendant, who took possession and still retains the possession of said premises. The defendant, then, is in under color of title. The plaintiff must rely upon his own seizin, and not upon the weakness of the defendant's title. The defendant being in possession, his title is good enough until the plaintiff shows a better one, — which he fails to do. He has never been in possession of the premises, and his grantor had had no possession for a period of twenty-eight years, when he conveyed away all his interest by deed of warranty. It is not necessary, therefore, to inquire whether the defendant has acquired a legal title to this land by his deed, nor whether the trust is being neglected or improperly administered. A specific performance of the trust will be compelled, if necessary, upon proper proceedings.
My conclusion is, that this action upon these facts cannot be maintained. *491
Concurrence Opinion
The plaintiff shows no right or title upon which he can maintain this suit. So far as regards this case, it is quite immaterial whether the property has been diverted from the purposes of the trust declared or not.
CUSHING, C. J., concurred.
Case discharged.