Inhabitants of Porter v. Griswold , 6 Me. 430 ( 1830 )

Mellen C. J.

delivered the opinion of the Court at the adjournment oí May term in Cumberland, in August following.

It is a well known fact, that for a long series of years, when the legislatures of Massachusetts, with the most commendable motives, made grants of tracts of land to one or more purchasers, either by special resolves, or by deeds, executed by certain constituted agents for the Commonwealth, a clause was inserted in the grant or deed, whereby certain proportions of the tract were reserved, as it was generally expressed, for the use of the ministry — for the first settled minister — for Harvard College, and for the use of schools. Though such language, so used, does not in strictness constitute a legal reservation, yet we believeiit has been generally understood by all concerned to amount to a condition subsequent, imposing on the grantees the obligation to cause the specified proportions to be impartially set apart and assigned for the specified purposes; and when so appropriated in severalty, as the general usage has been, the fee in such parcels, so appropriated, has been considered as vesting in the intended grantees, if in esse at the time ; if not, then as soon as they come in esse and are capable of taking the estate. This is believed to be the practical understanding of the language in which these reservations are secured, for the benefit of those for whom the bounty is intended. The vote of the purchasers or proprietors, whereby the lands reserved are set apart and designated, operates to pass the fee to the respective owners, in the manner above mentioned. In the case of Rice v. Osgood & al. 9 Mass. 38, it appeared that a grant of a township was made to one Brown, on condition that he should give bond to the treasurer of the then Province of the Massachusetts Bay, conditioned among other things, that he should grant out of the premises certain proportions, and for certain purposes, similar to those expressed in the deed in the present case. The court considered the fee of the township as having passed to Brown, and that it was his duty to grant and appropriate the specified proportions for the objects mentioned; and by neglecting so to do, he had violated the condition of the grant, and that the remedy was with the Commonwealth to enforce the fulfilment of the condition. Though the language of the grant to Brown was more explicit than that which has usually been employed for similar purposes j yet we apprehend the same principles may be equally applicable to both, for the purpose of-effecting the object in view. See also Brown v. Porter, 10 Mass. 93; Harrison v. Bridgton, 16 Mass. 16; 3 Dane’s Abr. ch. 76, art. 10, sec. 20.

The law as to parsonage lands is familiar. Until a parish is formed, capable of taking and holding the assigned property or lots, the fee remains in the grantees or proprietors, and they have a right to the custody and profits. Propr’s of Shapleigh v. Pilsbury, 1 Greenl. 271. When a parish or a town, acting as a parish, is formed, capable of taking, such parish is entitled to the custody and profits, and also during a vacancy, after there has been a settled minister. When there is such a minister, then he is seised of such lot or lots in jure parochice, and entitled to the profits. Weston v. Hunt, 2 Mass. 500; First Parish in Brunswick v. Dunlap, 7 Mass. 445; Brown v. Porter, before cited; Shapleigh v. Gilman, 13 Mass. 190 ; Austin v. Thomas; 14 Mass. 333. But as to such lot or lots as are set apart and assigned to the first settled minister, the principles above stated are not applicable. The parish have no control over them or interest in them. They have nothing to do with them. Such lands are in the nature of a premium ; and the first settled minister immediately becomes the owner of them in fee simple. Until a minister is settled, the fee remains in the grantees, as appears also by the case of Propr’s of Shapleigh v. Pilsbury, in the same manner as the fee of parsonage lands does till a parish comes into existence, capable of taking them ; but as soon as such minister is settled, the absolute fee vests in him, as before stated. The act incorporating the town of Porter, and the act annexing-to Brownfield that part of the plantation of Porterfield, in which the lot demanded is situate, are both of them perfectly silent on the subject of the lands intended for the ministry — the first settled minister — Harvard College, schools and future appropriation. In this case the demandants count on their own seisin in fee simple ; and now, what is the proof of this alleged seisin ? They sue as the inhabitants of the town of Porter, in their corporate capacity ; but the township was not granted to them, but ío a few individuals, from whom they have not deduced any title whatever. It does not appear that the purchasers were ever incorporated. If on legal principles the Rev. Mr. Rice was, in respect to the lot in question, the first settled minister, then the fee vested in him, and from him has been conveyed to the defendant who is in possession ; and on this ground the demandants must fail. If on legal principles Mr. Rice was not the first settled minister, in respect to the lot demanded, then no person has as yet existed capable of taking the same, inasmuch as there has never been any settled minister in Porter j of course the fee remains in the original grantees or their heirs, and on this ground also the action must fail. We may go one step further and say, that if the title to the reserved proportions for the uses specified, remains in the Commonwealth, until grantees appear capable of taking, as some have supposed to be the law, the consequence would also be equally a decisive bar to this action.

We are not able to perceive any title in the demandants, or any privity whatever between them and the original purchasers of the township 5 and if they or their heirs or assigns are not desirous of having the custody and profits of the demanded premises, there seems no occasion or reason for the interposition of strangers, to disturb the possession of the tenant. We are all of opinion that the action cannot be maintained ; accordingly the verdict is to be set aside, and a aonsuit entered.