Foster v. Lane

30 N.H. 305

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Bell, J.

No law existed providing for the union of school districts situate in different towns, nor for districts consisting of inhabitants of different towns, until after the passage of the Revised Statutes, in 1842.

From the facts alleged in the deed, recited in the third plea (of the case,) we infer that in the year 1830 a district was in fact formed by the inhabitants of a part of the town of Loudon and of a part of the town of Chichester. And that the inhabitants of those parts of the two towns were constituted a district or districts by votes of those towns, so far as they had power to do it.

School districts are now quasi corporations, capable of acquiring and holding real estate, for school houses. Perhaps they might properly be so regarded for some very limited purposes so early as 1830, or earlier. But no law of the State contemplated a district extending into two towns.

“ The inhabitants of that portion of the territory of Chi-Chester and Loudon, known as the Chichester and Loudon Union School District,” as in the first plea; “ The said inhabitants of said Chichester and Loudon Union School District, in their united capacity as said district,” as in the second and third pleas, (of the case,) are not a corporation known to the law.

If the deed of Mr. Lane was effectual to convey anything, it must have vested the interest in those who for the time being were the persons inhabiting the district, and the title must be set up in them by name. It is not seen that there is any objection to give the deed this effect, nor to a plea alleging title in the inhabitants who came within that description at the date of the deed, or perhaps in the survivors.

There probably was in each of the towns of Chichester and Loudon a legal district, duly constituted by vote of the town, and each bearing the name of the Chichester and Loudon Union School District, and each capable of taking land by that name. Perhaps, if so, title might be alleged in these districts jointly, and the repairs justified under both. There are not before us, however, sufficient facts, nor is it necessary to decide any question of this kind.

It is enough, for the present, to say that the district named is not alleged to be a corporation known to the law, and the description of the inhabitants, regarded as individuals, is entirely insufficient.

The case cited by the counsel from 14 N. H. Rep. 328, only shows that in equity a devise for charitable purposes will not be defeated because the beneficiaries are not a corporation.

The demurrer as to these pleas must be sustained.

The three last pleas of the case are clearly bad at common law, because they amount to the general issue,-being a denial of a part of the facts alleged by the plaintiffs in their declaration, and which they are consequently bound to prove. But as the statute provides that V when any action of trespass shall be brought before a justice, and the defendant shall plead the general issue, he shall not be allowed to offer any evidence that may bring the title to real estate in question,” (Rev. Stat. ch. 175, § 2,) and “ if in any such action the defendant shall plead any special plea, by which the title of real estate may be drawn in question,” &c., sec. 3, we have heretofore held that the defendant from necessity, and within the evident intention of the law, may plead specially, denying the plaintiff’s title, if he thinks proper.

Such pleas by analogy to the pleas of property in the defendant, or property in a stranger, in replevin, may allege the property in a school district, with a traverse of the plaintiff’s property. In that ease the issue must be upon the traverse.

The objection, that the names of the inhabitants of the school district are not given, applies to the fourth and fifth pleas, by reason of the word said, which refers to the former pleas. But the allegations are hardly sufficient to show the district named a corporation. It may be questionable whether this defect is very material, since the issue, if any, must be on the plaintiffs’ title.

The last plea is a general denial of any property or interest in the plaintiff, in the premises in question, without anything more ; which leaves the burden upon the plaintiff to prove his title, before he can recover, as he would be bound to do upon the general issue. This plea seems to us free from any valid objection, and this opinion is sustained by the case of Janvrin v. Scammon, 6 Foster’s Rep. 362, where the same question arose, and by the eases there eited. Wheeler v. Rowell, 7 N. H. Rep. 515; 6 Pick. 419; 17 Pick. 217.

The other pleadings may be 'amended, if desired, on the usual terms.