Inhabitants of the First Parish v. Cole

20 Mass. 232

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1825
• Status: Published

Opinion

The opinion of the Court was read as drawn up by

Parker C. J.

The legal existence of the demandants as a corporation by the name under which they have sued, does not appear to be denied, and no objection has been made, in the course of the able argument by the counsel for the tenant, to the denomination of the parish in the devise, though no parish existed with the legal name therein given. The authorities are all clear and consistent, to show that the intention of the testator in a devise or bequest will not be frustrate i by a mistake in the name or description of the object of his bounty. Thus a devise to a college by a name which it bears in common parlance, though not the true corporate name, is good. Case of Chancellor &c. of Oxford, 10 Co. 57; Counden v. Clerke, Hob. 32. So a devise to the Mayor, Chamberlain and Governors is valid to a corporation whose true name is Mayor, Citizens and Commonalty. Owen, 35. So to the Master and Wardens of the Mystery of Cordwainers, incorporated by the name of Warden, Masters and Commonalty. Foster v. Walter, Cro. Eliz. 106. So a devise to Edward Williamson was held good to Edward Anderson. Godb. 17. These cases are sufficient to show that the devise in question to the Inhabitants of the South Parish, may be enjoyed by the Inhabitants of the First Parish, it being agreed that they are the same corporation.¹

We come then to the only two questions which the case seems to admit of, in respect to which the written arguments of counsel have furnished us with all the light necessary to a decision.

It is objected first, that a parish is not such a corporation as can take a devise for the purposes intended by the testatoi to be secured by his gift. And the argument is, that parishes are corporations with limited powers relating only to parochial objects, such as providing for public worship, and have no authority to hold property for themselves or other persons to any other trust or purpose, or at least not for maintaining schools, which is not a duty required of them by law, so that this devise, having for its object what cannot be legally effected by a parish, is void, and the heir at law is to inherit the estate devised.

The argument does not require a decision of the general question, whether by the common law corporations may be seised in trust for the benefit of any other person, but seems to rest principally upon the nature of this particular corporation in relation to such a trust as is attempted to be created by this will; for it seems to be admitted, that if parishes were under legal obligation to maintain schools, as towns are, they might, as well as towns, receive donations in trust for that purpose. And indeed no reasonable distinction can be suggested between these two corporations, in relation to their powers in this particular, other than that which grows out of the different character of the two in this respect. Our towns are all liable by law to support schools, and are vested with power to assess the property of the inhabitants therefor. Parishes are under no such obligation, and therefore it may be well that the former may receive and hold property devised to them in ease of this burden, and that the latter may not. But we think legal liability alone does not settle the question ; for if a parish may legally establish and maintain schools within their parochial jurisdiction, and may raise taxes upon the inhabitants therefor, although not required so to do under a penalty for neglect, as towns are, they may nevertheless receive donations in aid of that cause, and may with such donations and such taxes as may be necessary, establish such schools as to the inhabitants of the parish may seem proper. In such cases the gift or devise is not strictly in trust, for no other body or person is to receive the benefit. There seems to be no reason why such corporations may not be the objects of public or private bounty. Donations to them stand upon the same footing as donations to religious corporations to aid them in building and keeping in repair meeting-houses, supporting a minister, &c., and there are too many funds of this nature throughout the commonwealth to make it safe or proper to call in question their power to hold ; indeed the legislature have by many public and private acts recognised the power of towns, parishes and religious societies to take and hold property for such purposes. The circumstances of the country not having been thought to require any restraint upon the holding of property by such bodies, as m England, where the statutes of mortmain were necessary to prevent the whole property of the kingdom from being swallowed up in monasteries.

If a devise or legacy to the inhabitants of a town to be applied to the purpose of maintaining schools be valid, of which we think there is no question, then a similar devise to a parish, if vested with-power to carry into effect the views of the donor, must likewise be valid. And by St. 1789, c. 19, § 8, it is expressly enacted, that all parishes may vote and raise money for the support of schools for their children.

If it be thought strange that the legislature should have made this provision, seeing that the duty of maintaining schools is exacted under penalties from the inhabitants of towns, it may be answered, that it was probably contemplated that some parishes might be desirous of maintaining schools of a different description from those required to be supported by towns, and that it was expedient to grant the power of so doing, though it was not exacted as a duty. Singing schools, for instance, and what are now so common under the name of Sunday schools, are of a parochial, rather than a municipal character. It is sufficient to know however that parishes have the right, to authorize us to determine that property given for that purpose may be held by them. Certainly they cannot apply the property so given to any other use ; and if they fail to appropriate it according to the will of the donor, they will either be compelled to execute the trust confided to them, or will forfeit their right to the property. By the common law it was the right ol corporations to take and hold property, both real and personal, to their own use, unless restricted by the terms of their charter, or by immemorial usage in such corporations as exist by prescription. This common law right has been taken awsy in England by the statutes of mortmain, so that now corporations can take and hold real estate only by license from the king, or by act of parliament if they derive their power from that source. 1 Bl. Com. 475, Christian’s note; Co. Lit. 2. These statutes of mortmain seem never to have been reenacted, adopted ot practised upon in this country,¹ but still it may be inferred from the special power given to various corporations, by acts of the legislature, to hold real estate to a certain limited extent, that corporations created for specific objects would not have the nower to take and hold real estate for purposes wholly foreign to those objects. But with respect to our municipal corporations, though vested with no special power by their acts of incorporation, the usage has been to purchase and hold, and to take by gift and devise, estate real and personal, for the general use of the inhabitants ; and it must be well known, that there is scarcely a town in the commonwealth which does not hold property to a greater or less amount acquired from some of these sources ; and with respect to religious corporations we have a general statute, which establishes the mode in which their corporate power may be exercised over all property coming to them by gift or devise, without any limitation as to the amount.

We may consider it therefore as the settled law of this commonwealth, founded on immemorial usage as well as the implied assent of the legislative power, that towns and parishes may acquire and hold property for the use of the objects and purposes of those institutions ; and that as parishes have the right by the statute above cited, to raise and collect taxes for the maintenance and support of schools, so they may enjoy all such property as may be devised to them in furtherance of that object. In the case of Trustees of Phillips Academy v. King, there is nothing contradictory to this doctrine ; on the contrary, it is strongly intimated that such bodies are capable of taking and holding in trust for others, and such was the effect of the judgment in that case, the theological institution, which was the cestui que trust, being engrafted upon the corporation subsisting under the name of The Trustees of Phillips Academy. It was considered, that as the trust created was consistent with the purposes of the original institution, the corporation might be trustees of property so bestowed.¹

The demandants in this case then having a capacity to take and hold the estate devised for the purpose declared in the will, it only remains to be considered, whether they have becwne seised under the devise, so as to be able to maintain this action ; and this depends upon the'question, whether they have made a lawful entry into the estate, it being very clear by the authorities cited, that without such entry the action cannot be sustained.

It was proved, that after the probate of the will, Amasa Roberts, claiming to act for and on behalf of the demandants^ did in fact enter upon the estate devised and claim possession thereof for the said inhabitants. The validity of this act is questioned, on the ground that Roberts had no legal authority therefor derived from the demandants in their corporate capacity. He acted under votes of the parish passed on the 2d of May 1808, one of which was, “ that the parish will take measures to obtain possession of the donation of the late Mr. John Cole, as expressed in the 2d article of the warrant,” — and the other, “ that the parish will choose an agent or agents according to the 4th article,” — “that there shall be two agents,” and that Estes Howe and Amasa Roberts be the agents. The duty of the agents, as described in the 4th article of the warrant, was “ to institute or defend any suit or suits that may be commenced for or against them, and act any thing relative thereto.” The warrant for this meeting was issued by three persons calling themselves the prudential committee of the parish, and it appears by the records in March preceding, that the persons who issued the warrant were “ chosen to manage the prudential affairs of said society.” This last mentioned meeting was held under a warrant from a magistrate of the county, which was issued on the application of certain persons under the statute which provides for such meetings in case no persons authorized to call such meetings should exist.

So far as the record goes it shows a regular meeting in March 1808, at which the parish was organized by the choice of proper officers, and if that meeting was legally called, Kie subsequent doings which resulted in the choice of the agents mentioned were regular and valid.

But the whole of these proceedings are objected to, on the ground that the original meeting was not legally called or held, it being offered to be proved at the trial that the 'application to the magistrate, on which the warrant was issued, was not signed by ten qualified voters of the parish, and that at that and all subsequent meetings certain persons not members of the parish acted and voted. This evidence thus offered having been rejected by the judge, we must consider, for the purpose of this motion, the facts as actually proved, to wit, that the application for the warrant was not signed by ten qualified voters of the parish, and that persons not belonging to the parish did in fact attend the meeting and vote on the subjects which were acted upon at that meeting.

The St. 1786, c. 10. § 2, [Revised 8tat. c. 20, § 17,] provides, that in case the assessors shall unreasonably refuse to call a meeting, or a parish or precinct shall have no assessors within it to call one, or not a major part of the assessors or committee which any parish may agree upon to be chosen, any justice of the peace for the same county, upon the application of ten or more of the voters in the parish or precinct, may call a meeting.

That a meeting called by- a warrant which issued on the application of less then ten persons, or, if by that number, any of the applicants not being voters, might be excepted to as irregular by the inhabitants when assembled, and if excepted to, that all proceedings under it would be void, perhaps cannot be questioned ; but that other persons not members of the parish may at any time afterwards question the legality of the meeting jpon that ground, we are not prepared to say. It is not so strong a case as that of insufficient notice to the inhabitants, of the time and place of their meeting, for in such case injury is done to every inhabitant not notified, he having a right to attend and state his objections to, and vote against the measures proposed. It does not appear that any exception was taken to the meeting at the time, and we think that if there were regular notice appearing of record, and the inhabitants proceeded to transact the business for which they were called together, no defect of authority in the magistrate appearing of record, the legality of the meeting cannot afterwards be called in question ; . , ’ , , ,, certainly not by any but the inhabitants themselves, who alone can be prejudiced by the form in which the application was made. In this respect the case is like that of Thayer v. Stearns, 1 Pick. 109, in which it was determined, that where it appeared by the records that notice had been given, this fact should not be contradicted by parol evidence. The affairs of towns and other bodies politic would be in great jeopardy, if it were competent to persons, not corporators, years after their transactions at public meetings had taken place, to go behind the record and prove some defec.t of authority antecedent to the meeting, in order to avoid their acts. The inhabitants themselves are alone interested in the manner in which they are assembled ; if all have notice of the meeting and choose to proceed without inquiring into the qualifications of those who applied for the meeting, there seems to be no reason why others should find fault.¹

The other branch of this objection stands upon the same footing. The tenant proposed to prove that persons not qualified to vote in parish affairs did in fact attend and vote, without stating how many persons of such character attended, so that it might be ascertained whether their agency bad any effect on their proceedings. It was the duly and the right of the inhabitants assembled to challenge any person not qualified who offered to vote. Not having done so, we think it wholly unsafe, in regard to the interests of corporations, to allow of proof, after the meeting, of such a fact, with a view to vacate the proceedings. It is believed that a precedent to that effect would be extensively mischievous, as there can be no doubt that instances frequently occur in town, as well as parish meetings, of persons being present who have not a right to vote, and the question whether they did vote or not would be liable to such uncertainty in the proof, that the very nature of the subject shows that the evil should be corrected at the time, instead of being left to remote periods afterwards.

Another answer to the first branch of the objection is furnished by the argument of the counsel for the defendants, which is, that the agents were chosen at a meeting called by persons acting as a committee of the parish ; and we think it clear that the actual exercise of that office under color at least of a regular election, is sufficient to render legal any meeting called by such a body, if no exception is taken at the meeting.

Still however it is objected, that admitting the agents to have been duly chosen, or that their choice cannot now be inquired into, yet the votes of the parish before recited did not give them authority to enter upon the land under the devise ; and it is true that such authority is not expressly contained in the votes.

The first vote is, “ to take measures to obtain possession of the donation of the late Mr. John Cole and the next, “ to choose agents to institute or defend any suit or suits that may be commenced for or against them, and act any thing relative thereto.” These latter words, coupled with the expression of an intention to take measures to obtain possession, and the choice of agents expressly to institute suits, we think maj fairly, and indeed must be construed to be an authority to do what was essential to the maintenance of a suit for the recovery of the land.¹

There is however an objection, which though not insisted on by the counsel for the tenant we are bound to take notice of, and which, though merely technical, the tenant has a right to avail himself of.

It appears that the parish being called upon by the warrant to see if they would choose one or more agents or attorneys, voted to choose two, and did in fact elect Howe and Roberts. According to the testimony Roberts alone made the entry. Now it seems to be a settled principle of law, that where a bare authority is given to two persons, one alone cannot exercise it, nor if one dies, does the authority survive to the other. The cases put by Coke in his Commentary, 181 b, are decisive upon this point. He says, “ if a man make a letter of attorney to two, to do any act, if one of them die, the survivor shall not do it.” If a charter of feoffment be made, and a letter of attorney to four or three jointly or severally to deliver seisin, two of them cannot make liveries. So a bare power to executors to sell, must be executed by all jointly. Co. Lit. 112 b.2 The only cases in which the rule of law may have been thought to be relaxed, is where committees of public bodies have been allowed to act by a majority, though the authority may seem to be joint;¹ but this is from reasons of policy and public good, which do not apply in the case before us.

The objection is therefore fatal, unless the ground taken by the demandants’ counsel in relation to the other objections is sufficient to remove it. They allege that admitting Roberts had no authority precedent to his entry, yet as he claimed to act for the demandants, and did actually enter under color of authority, his entry shall avail to their benefit, if they afterwards assented to and ratified bis act ;² and that the institution of this suit is conclusive evidence of such assent and ratification.

If it appear that the suit was instituted under their authority and is prosecuted with their consent, the above argument is sound ; for by the authorities cited in the argument the position seems to be well supported, that an entry by a stranger shall avail him for whose use it was made, if adopted by him.³ Whether it ought to be considered, that the mere commencement and pendency of the suit are a ratification, the authority of the attorney of the demandants not having been disputed, has been a matter of some doubt. It was offered to be proved at the trial, that there were no records of any parish meeting after the year 1813, which is nine years before the commencement of the suit. The authority to the agents by the vote of the parish in the year 1808, was to institute any suits, without reference to this particular subject. We think, had the parish been called upon lor their records, and had it appeared that notliing had been done in relation to this land for nine years after the entry of Roberts, and the fact of assent had been left to the iury, the issue might have been doubtful. But it seems to be a well settled principle, that when a suit is brought in the name of a corporation, if it is intended to deny the existence of the corporation, this should be brought in question by a plea in abatement, and that pleading over to the merits admits the capacity of the plaintiffs in the character they have assumed to act under. Monumoi v. Rogers, 1 Mass. R. 159. ⁴

In 1 Wms’s Saund. 319, note 1, the doctrine in relation to entries made by strangers or persons without authority, and the use to be made of such entry by those who have the right, is considered at large ; and the law 'appears to be, that the party, by assenting to such entry and acting upon it, makes it his own, and saves his rights by it. This is in relation to entries made necessary by statute to avoid a fine, and Williams, the annotator, says a slight recognition, and even the bringing an ejectment, is a sufficient ratification. Indeed it is laid down by Lord Coke, that “ if an infant or any man of full age have any right of entry into any lands, any stranger in the name and to the use of the infant or man of full age may enter into the lands, and this regularly shall vest the lands in them without any commandment, precedent, or agreement subsequent.” Co. Lit. 258 a. Probably Lord Coke meant to say such entry would be good without any express command or express subsequent agreement, which is also contended for in this case. The point is of no other importance in the case than as it respects the costs of this suit, for the demandants having the right, and twenty years since their right accrued not having elapsed, they might by entry maintain another action. But we think the case well supported by authority and principle, for entry has been made in the name and to the use of the demandants by a person believing that he acted under authority from tnem They have adopted his act by bringing their action anu relying upon his act as their entry. Thi s is a sufficient ratification .

Judgment on the verdict.

1 Inhabitants v. String, 5 Halsted, 323; Dauphin Turnp. Co. v. Myers, 6 Serg. & Rawle, 12; Porter v. Neckervis. 4 Randolph, 359; t Kyd on Corp 236 to 252; Road Co. v. Creeger, 5 Harr. & Johns. 122; African Society v Varick, 13 Johns. R. 38; Woodwick v. Forest, Pennington, 115

1 2 Kent’s Comm. (2d ed.) 283. But in Pennsylvania the statutes of mort main have been held to be the law of that State, so far as applicable to their political condition. See the Report of the Judges, 3 Binn. Rep. App. 595.

1 A corporation may be seised of land and hold other property in trust for purposes not foreign to its institution. M' Girr v. Aaron, 1 Rawle, Penrose & Watts, 49, Greene v. Dennis, 6 Connect. R. 304; 2 Kent’s Comm. (2d ed.) 283; M‘Cartee v. Orphan Asylum, Soc. 9 Cowen, 452; Amherst Academy v Cowls, 6 Pick. 427.

1 See Gilmore v. Holt, 4 Pick. 258; Pejepscot Proprietors v. Ransom, 14 Mass. R. 145; Mussey v. White, 3 Greenl. 290; Waldron v. Lee, 5 Pick. 326; Blackburn v. Walpole, 9 Pick. 100; Ford v. Clough, 8, Greenl. 334 Willard v. Killingworth, 8 Connect. R. 248.

1 See Damon v. Granby, 2 Pick, (2nd ed.) 345.

2 Paley on Princip. and Agent, 129; Copeland v. Mercantile Ins. Co. 6 Pick. 202, 203; Damon v. Granby, 2 Pick. 253.

1 See Moffitt v. Jaquins, 2 Pick (2nd ed.) 332, note 1.

2 Copeland v. Mercantile Ins. Co. 6 Pick. 203; Paley on Princip. and Agent, 143; Smith v. Cologan, 2 T. R. 189, note; Fenn v. Harrison, 3 T. R 757.

3 Stearns on Real Actions, (2nd ed.) 75; Fitchet v. Adams. 2 Str. 1128.

4 Methodist Episcopal Church of Cincinnati v. Wood, 5 Ohio R. 286.

1 See Fryeburg Canal v. Frye, 5 Greenl. 38.