Farrar v. Perley , 7 Me. 404 ( 1831 )

The opinion of the Court was read at the ensuing November term in Cumberland, as drawn up by

Weston J.

It sufficiently appears that the title to the locus in quo was in Robert Moor, and that it passed from Moor to the plaintiff in June 1819, unless his seisin had been previously divested. The defendants trace back their title to a period long anterior, derived however from the same source ; and depending originally upon two sales of Moor’s right, for delinquency in the payment of sums voted to be raised by the propriety, of which he was a member. If both or either of these sales can be supported, the plaintiff has failed in his proof of title. And this will depend principally upon the provincial statute, under which the sales were made. If that of 1738, 2 LL Mass. 1016, was not repealed by that of 1753, 2 LL. Mass. 1035, both the sales may be understood to have been made'under the authority of the first act. There is no repealing clause in the act of 1753, and if the previous act was thereby repealed, it was by implication. And it is insisted that the second act ought to be regarded as having this effect, because its provisions are general, affording an effectual remedy in all cases of delinquency in the payment of assessments, and indicating the last determination of the provincial legislature as to the extent and limitations of that remedy. In looking however at the two statutes, the former will be found applicable to a class of cases of a special character. The latter is general enough in its terms to embrace the former; but it may have a very extensive operation, without regarding the former as abrogated. The act of 1753 is entitled an act, in addition to an act, directing how meetings of proprietors of lands lying in common may be called; but it authorises the raising of money for the common service, and the sale of the land of delinquent proprietors. From the preamble, it would seem to have been designed for cases, for which no effectual provision had before been made by law. The first act referred to grants, made or to be made by the general court; and it made effectual provision to enforce payment of monies raised. The second, to all lands owned by a considerable number of proprietors, not lying within the bounds of any town or plantation, from whatever source the title might be derived. The first is confined to sums raised on lands granted upon conditions not fulfilled. The second has no such limitation. The remedy by sale under the former act might be more speedily enforced; and the legislature might well think that the exigency was more pressing in regard to lands so circumstanced. A very common condition imposed by the general court upon the grantees was, that they should locate upon the tract granted a certain number of settlers within a limited period. It was one of the conditions of the grant under consideration. The fulfilment of this and other, conditions might require the raising of funds as speedily as possible, to be expended in causing surveys, making roads, and providing other facilities for bringing forward the settlement of the land. And we are not satisfied that the act of 1738 was intended tobe abrogated by that of 1753. The several committees, under whose su-perintendance the editions of the Massachusetts laws in 1801 and in 1807 were published, were of opinion that the former act was not repealed by the latter; for in the margin of the former, it is stated to have been revised in 1784. Upon the first committee was the Hon. Nathan Dane, deservedly eminent for the accuracy of his knowledge, and for his great industry.

One, if not both these sales, was manifestly made under the act of 1738. The original proprietor acquiesced for thirty-eight years. This acquiescence is not to be accounted for by the minority of his heirs for a portion of the time, or their ignorance of his title ; but ho himself survived during that whole period, and when he conveyed to the plaintiff, he did it by release, without covenants, and without any valuable consideration expressed in the deed. Whether other sales under the act of 1738, subsequent to 1753, have been made is not within our knowledge. It has been insisted in argument that there have been, and that many titles will be affected, by holding the former repealed by implication. A contemporaneous construction, in a doubtful case, has very properly great weight in determining the effect of ancient statutes. This is to be sure but a single case, and could have little influence in settling the construction ; but so far as it goes, it is in accordance with the conclusion to which we have arrived, that the act of 1738 was not repealed by that of 1753, by fair or necessary implication.

It appears that the grant to Noah Johnson and others, in which Moor was interested, was made by the General Court upon conditions, and at the time of the assessments and sales, upon which the defendants rely, the conditions had not been fulfilled.

An objection is made by the counsel for the plaintiff to the vote of three dollars to each share to defray the charges of the proprietors, for the nonpayment of which the first sale was made ; and to the vote of four dollars on each share, for the nonpayment of which the second sale was made. There had been a previous assessment of one hundred dollars in paper money, then greatly depreciated ; the first made at an original meeting, and die second and (bird at successive adjournments of the same meeting, ft is insisted that the sum first raised exhausted the efficacy of the article, by which it was au-thorised ; and that there remained no authority whatever for the sums subsequently voted. Whenever a vote of a propriety or other corporation is evidence of a contract with others, or of a grant to third persons, it is no longer revocable, or subject to be changed or modified at the will of such corporation. It is otherwise with respect to transactions, affecting their interest only. So long as the subject is before them at a regular meeting, they may dispose of it at pleasure. Unless the rights of third persons are affected, whatever they might have done on the first day of the meeting, they might do on the days of adjournment. The warrant was before i them, and it was competent for them to reconsider or to modify any vote already passed, or to pass any further vote, falling within the scope of any of its articles. The warrant, and the various matters brought before the meeting by it, were subject to their disposition, until the final adjournment. The sums successively voted under the fourth article, made in the aggregate the sum they thought proper to raise under its authority.

This is an ancient transaction, which remained without question for nearly forty years; and every reasonable presumption is to be made to uphold it. A verdict was returned, by the direction of the Judge whq presided at the trial, for the plaintiff, subject to the opinion of the court, upon the evidence reported. And upon that evidence as reported, the opinion of the court is, that the plaintiff has not entitled himself to judgment thereon. The verdict is accordingly get aside, and a new trial granted.