Wilde, J.
On the facts agreed, several questions of law have been submitted to the determination of the court, in the discussion of which other facts have been assumed by counsel, which are not stated in the statement of facts, and which cannot be ascertained by the records of the town of Ipswich, and the deeds and documents which are referred to and made a part of the case. Whether, if these facts could be ascertained, they would materially affect the rights of the parties, is very doubtful. But, however this may be, we understand the parties do not wish the case to be further delayed for the purpose of ascertaining these doubtful facts. It must, therefore, now be decided on the facts agreed.
The first question to be considered is, whether the plaintiffs have made out a good title to the land, for the occupation of which, by the defendant, rent is claimed. And this depends on the construction to be given to the grant of the town of Ipswich to Robert Payne and others, in the year 1650, and the [592]*592statute of 1765 in relation to that grant. The plaintiffs’ counsel contend that, as the grant contained no words of limitation a life estate only passed to the grantees. And if this had been a more recent conveyance, such would have been its construction But in construing conveyances made early after the settlement of the country, when conveyancing was little understood, the intention of the parties is to govern, without regarding the rigid rules of construction which would be applicable to recent conveyances, and which might defeat the intention of the parties, however clearly that might be made to appear. So it was decided in Adams v. Frothingham, 3 Mass. 352. And the same rule of construction was adopted in Springfield v. Miller, 12 Mass. 415, and has been recognized in other cases. This rule of construing ancient conveyances was adopted to uphold the titles derived therefrom, which otherwise might be subverted in very many instances, and would be attended with manifest injustice, so extensively as to require, for the public good, the adoption of a rule adapted to the transactions which took place soon after the first settlement of the country. Conforming to this rule of construction, we can have no doubt that, by the grant in question, an estate in fee passed to the grantees. That a fee was intended to be conveyed, will not admit of a doubt. The grantees, immediately after the grant, leased the premises for one thousand years, and, undoubtedly, without objection of the town. In 1683, Robert Payne, having alone survived the other grantees, undertook to perpetuate the trust, and did convey in fee the whole premises, which he held in trust, to certain persons, being a committee for the management of the school, three of whom were nominated and chosen by the town, and two by the said Robert Payne. In this conveyance, provision is made for the choice of successors, whenever any of the trustees should die, or in any other way be removed, so as to be incapable to act in and about the premises. These latter trustees, or their successors, continued to act in the performance of their trust, without objection from the town or any inhabitant, so far as appears by the records of the town, until 1720, when some difficulties arose, and the town, for the first time, laid claim [593]*593to the land, as having reverted to them after the death of the original feoffees ; and a suit was instituted, by the town, against one of the tenants under the lease to Cogswell, to recover possession of a part of the premises. In the court of common pleas, the tenant recovered judgment, and the town appealed to the superior court, and, having afterwards failed to enter their appeal, they petitioned the general court to enter their appeal; but how the case terminated does not appear.
Against these proceedings of the town, the reverend John Rogers and the reverend Jabez Fitch presented a memorial which was allowed to be entered in the records of the town. In this memorial, the town are requested to reconsider a former vote, and to stop the suit, “ lest,” as it is said, “ by going on in the town’s name, it should bring a general odium and guilt of public injustice, and consequently that wrath which is revealed against all injustice and unrighteousness of men, more particularly the judgments threatened and executed on the violating and breaking in upon any ancient contracts and covenants with any people or persons, a famous instance whereof is recorded, for our warning, in 2 Samuel, xxi. 1.” “ That the gentlemen, to whom the farm was granted, had the consent of the town to lease the premises,” the memorialists say, “ is evident. 1st, in that the said farm was granted for the use of a school.” “ Now, it was usual,” they say, “ in ancient grants of the town, to say no more than 1 we grant such a parcel of land to such a man,’ designing thereby, not a temporary grant, but that was granted to them forever. 2d. Those gentlemen that made the lease (who were men of undoubted veracity) said that the grant was for the use of the school forever. 3d. They have been assured, by living witnesses, that the town were pleased with the doings of the feoffees.”
Taking into consideration these proceedings of the town, and of the feoffees and their successors, we think there can be no doubt that the town intended to convey the land granted in fee simple, and that their grant is to be construed accordingly.
But, if there were any doubt of the constructs of the grant, that doubt is removed, and the plaintiffs’ title is confirmed, by [594]*594the statute of 1765. That act passed on the application of all parties interested. It is therefore perfectly clear that the plaintiffs have a good title to the reversion in the premises, after the expiration of the lease for one thousand years, and in the mean time they are entitled to the rents reserved, unless that lease has been surrendered ; and if it has, then they are entitled to a present estate in fee, and may recover on the count for uso and occupation.
The plaintiffs’ counsel contend that the lease has been surrendered, as the defendant, or those under whom he claims, have taken a new lease or leases of the same land for a shorter time, which would operate as a surrender by implication. But no such lease has been proved, nor can it be inferred, from the records of the town, that any lease was ever given to the person under whom the defendant claims, or to any one of the tenants. It is true that the town, from time to time, chose committees to lease the lands and to collect the rents; but whether any leases were given does not appear. But if the tenants had received leases from the town, while the title was in dispute, this would not operate as a surrender of the former lease, without the consent of the feoffees. And all such liabilities to pay rents to the town, if any there were, would cease, when the plaintiffs’ title was established by the statute of 1765.
The only remaining question is, whether, by the facts agreed, the plaintiffs have a title to the rent demanded under the lease to John Cogswell. The defendant’s counsel contend that nothing is due, because it is provided in the lease that John Cogswell should have the right to deduct from the yearly rents any such town taxes as may be assessed on the lands leased ; and therefore, if the defendant is liable for rent, he is entitled to the benefit of the deduction of the town taxes assessed on the land held by him under the lease.
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Wilde, J.
On the facts agreed, several questions of law have been submitted to the determination of the court, in the discussion of which other facts have been assumed by counsel, which are not stated in the statement of facts, and which cannot be ascertained by the records of the town of Ipswich, and the deeds and documents which are referred to and made a part of the case. Whether, if these facts could be ascertained, they would materially affect the rights of the parties, is very doubtful. But, however this may be, we understand the parties do not wish the case to be further delayed for the purpose of ascertaining these doubtful facts. It must, therefore, now be decided on the facts agreed.
The first question to be considered is, whether the plaintiffs have made out a good title to the land, for the occupation of which, by the defendant, rent is claimed. And this depends on the construction to be given to the grant of the town of Ipswich to Robert Payne and others, in the year 1650, and the [592]*592statute of 1765 in relation to that grant. The plaintiffs’ counsel contend that, as the grant contained no words of limitation a life estate only passed to the grantees. And if this had been a more recent conveyance, such would have been its construction But in construing conveyances made early after the settlement of the country, when conveyancing was little understood, the intention of the parties is to govern, without regarding the rigid rules of construction which would be applicable to recent conveyances, and which might defeat the intention of the parties, however clearly that might be made to appear. So it was decided in Adams v. Frothingham, 3 Mass. 352. And the same rule of construction was adopted in Springfield v. Miller, 12 Mass. 415, and has been recognized in other cases. This rule of construing ancient conveyances was adopted to uphold the titles derived therefrom, which otherwise might be subverted in very many instances, and would be attended with manifest injustice, so extensively as to require, for the public good, the adoption of a rule adapted to the transactions which took place soon after the first settlement of the country. Conforming to this rule of construction, we can have no doubt that, by the grant in question, an estate in fee passed to the grantees. That a fee was intended to be conveyed, will not admit of a doubt. The grantees, immediately after the grant, leased the premises for one thousand years, and, undoubtedly, without objection of the town. In 1683, Robert Payne, having alone survived the other grantees, undertook to perpetuate the trust, and did convey in fee the whole premises, which he held in trust, to certain persons, being a committee for the management of the school, three of whom were nominated and chosen by the town, and two by the said Robert Payne. In this conveyance, provision is made for the choice of successors, whenever any of the trustees should die, or in any other way be removed, so as to be incapable to act in and about the premises. These latter trustees, or their successors, continued to act in the performance of their trust, without objection from the town or any inhabitant, so far as appears by the records of the town, until 1720, when some difficulties arose, and the town, for the first time, laid claim [593]*593to the land, as having reverted to them after the death of the original feoffees ; and a suit was instituted, by the town, against one of the tenants under the lease to Cogswell, to recover possession of a part of the premises. In the court of common pleas, the tenant recovered judgment, and the town appealed to the superior court, and, having afterwards failed to enter their appeal, they petitioned the general court to enter their appeal; but how the case terminated does not appear.
Against these proceedings of the town, the reverend John Rogers and the reverend Jabez Fitch presented a memorial which was allowed to be entered in the records of the town. In this memorial, the town are requested to reconsider a former vote, and to stop the suit, “ lest,” as it is said, “ by going on in the town’s name, it should bring a general odium and guilt of public injustice, and consequently that wrath which is revealed against all injustice and unrighteousness of men, more particularly the judgments threatened and executed on the violating and breaking in upon any ancient contracts and covenants with any people or persons, a famous instance whereof is recorded, for our warning, in 2 Samuel, xxi. 1.” “ That the gentlemen, to whom the farm was granted, had the consent of the town to lease the premises,” the memorialists say, “ is evident. 1st, in that the said farm was granted for the use of a school.” “ Now, it was usual,” they say, “ in ancient grants of the town, to say no more than 1 we grant such a parcel of land to such a man,’ designing thereby, not a temporary grant, but that was granted to them forever. 2d. Those gentlemen that made the lease (who were men of undoubted veracity) said that the grant was for the use of the school forever. 3d. They have been assured, by living witnesses, that the town were pleased with the doings of the feoffees.”
Taking into consideration these proceedings of the town, and of the feoffees and their successors, we think there can be no doubt that the town intended to convey the land granted in fee simple, and that their grant is to be construed accordingly.
But, if there were any doubt of the constructs of the grant, that doubt is removed, and the plaintiffs’ title is confirmed, by [594]*594the statute of 1765. That act passed on the application of all parties interested. It is therefore perfectly clear that the plaintiffs have a good title to the reversion in the premises, after the expiration of the lease for one thousand years, and in the mean time they are entitled to the rents reserved, unless that lease has been surrendered ; and if it has, then they are entitled to a present estate in fee, and may recover on the count for uso and occupation.
The plaintiffs’ counsel contend that the lease has been surrendered, as the defendant, or those under whom he claims, have taken a new lease or leases of the same land for a shorter time, which would operate as a surrender by implication. But no such lease has been proved, nor can it be inferred, from the records of the town, that any lease was ever given to the person under whom the defendant claims, or to any one of the tenants. It is true that the town, from time to time, chose committees to lease the lands and to collect the rents; but whether any leases were given does not appear. But if the tenants had received leases from the town, while the title was in dispute, this would not operate as a surrender of the former lease, without the consent of the feoffees. And all such liabilities to pay rents to the town, if any there were, would cease, when the plaintiffs’ title was established by the statute of 1765.
The only remaining question is, whether, by the facts agreed, the plaintiffs have a title to the rent demanded under the lease to John Cogswell. The defendant’s counsel contend that nothing is due, because it is provided in the lease that John Cogswell should have the right to deduct from the yearly rents any such town taxes as may be assessed on the lands leased ; and therefore, if the defendant is liable for rent, he is entitled to the benefit of the deduction of the town taxes assessed on the land held by him under the lease. The plaintiffs’ counsel contend that this privilege of deduction did not extend to his assigns, and that he had no right to deduct from the yearly rent any tax on the land, except such as might be assessed by the town of Ipswich. However this may be, we think the defendant is bound to pay his portion of the rent, without any aeduc[595]*595tion for taxes; because he has not traced his title so as to show himself entitled to any such deduction. And there are strong reasons to presume that this right of deducting taxes has been relinquished by the tenants. In the year 1710, there was an express relinquishment of this right, as follows : “ We, whose names are subscribed, the tenants upon the lands granted for support of the free school in Ipswich, and thereupon were freed from town rates, and being now entered to have rights in the three fifths of the dividable lands, with others now admitted, provided we will oblige ourselves respectively, and our respec tive heirs and successors, to pay all town rates proportionably as other inhabitants are by law obliged, which thing we hereby oblige ourselves, heirs and successors, for the future, to attend and discharge.” This agreement is signed by John Cogswell, for himself and his two sons, (to whom he had given lands,) by Gifford Cogswell and four other tenants. It cannot be presumed that any of these tenants would afterwards convey any part of their lands, with the privilege of deducting the taxes of the grantee; and the only deed produced by the defendant has a clause obligating him to pay a yearly rent, without mentioning any right of deduction for taxes, contrary to the terms of their agreement. If the defendant would maintain his right to deduct his taxes from his yearly rent, he must prove that he derives his title from some one of the tenants, who had not relinquished this right. This he has failed to show. On the contrary, the only title deed produced by him has a clause obligating him to pay a yearly rent, without mentioning any right to deduct his taxes. And he has paid his rent to the plaintiffs up to the year 1838; and for many years before that time, he was the plaintiffs’ agent, to collect and pay over the rents due from the other tenants of the premises. We are of opinion, therefore, if the tenant derives his title from John Cogswell, he is liable on his covenant in the lease. A covenant to pay rent, runs with the land, and where the land is assigned in severa portions, the rent is to be apportioned.
It does not appear, by the statement of facts, whether the defendant does derive his title from John Cogswell, the original [596]*596lessee, or not; but in the argument, the affirmative was assumed by the counsel for both parties. This question, however, is not material; for if the defendant does not hold under a title derived from the original lessee, the plaintiffs are entitled to recover on the count for use and occupation. By the payment of rent previously to 1838, and up to that time, the relation of landlord and tenant was admitted, and the defendant continued responsible for rent, not having given notice that he intended to hold under another title.
Judgment for the plaintiffs.