8 Vt. 492 | Vt. | 1836
The opinion of the court was delivered by
It is only necessary to consider the first covenant declared on. In this the defendant covenants — “that he is well seised of an indefensable estate in fee simple.” The terms of this covenant necessarily import that he had an absolute estate in fee; and to make good his defence, he was therefore required to establish-such a title in himself. — Gorfield vs. Williams, 2 Vt. R. 327.— Catlin vs. Hurlburt,3 Vt. R. 403. He was the first minister of the Gospel ever permanently settled in Concrd, and no objection is made to the validity of his settlement. The proceedings of the inhabitants of the town sufficiently indicate their intention, that he should receive the right of land in question as an absolute estate in fee. There was indeed a stipulation on his part to re-convey a portion of it in a certain event, but that has no effect upon this case. The whole question must therefore turn on the manner in which this right is granted or reserved in the Town Charter. If it could vest absolutely in the defendant on his being settled, it certainly did so, and his covenant is satisfied: and if it could not so vest, the covenant was at once broken.
There is a diversity in these grants or reservations. In some charters the right is simply reserve d for the first settled minister in the town. In others it is reserved for the first settled minister, to be disposed of for that purpose as the inhabitants of the town shall direct. Thus far the land is evidently destined, upon a legal and sufficient settlement of a minister, to vest absolutely in such minister as private property. And whether in each class of reserva
In this view of the case, the members of the court now present are well agreed. But as the court, consisting in part of other members, differed in opinion on a former argument, and as the case of Williams (the present plaintiff) vs. Hardy and Barker, determined in A. D. 1821, may have involved a contrary decision, some further attention to the subject is required. The record of the case referred to, shows it to have been an action of trespass,In which the plaintiff recovered for trespasses committed on the land in question. It is to be inferred that he had no actual possession of the land, but relied on constructive possession arising from title; and it appears that he made title through the deed of this defendant. The charter of Concord and the defendant’s settlement were brought into consideration. The question now discussed might therefore have been determined in that case. But the de-
But it is urged, that the course pursued in this instance has been extensively practiced in the state, and ought on principles of policy to be sanctioned. We are not aware of the extent of the practice, but have reason to believe it has not been uniform. The legal construction should therefore prevail. |
Judgment of county court affirmed.