The opinion of the court was delivered by
Williams, Ch. J.
The plaintiff sues as President of Moor’s Charity School and successor of John Wheeloek ; as a corporation sole.
As his corporate capacity is denied and is expressly put in issue by the pleadings, it was incumbent on him to make proof of this allegation. It is not important to enquire whether the pleas were good or not. There is no doubt that when a corporation commence an action in their corporate name, they must make proof of the fact if required.
In the supreme court of U. S., it has been decided, that if a defendant means to insist upon the want of a corporate character in the plaintiff, it must be insisted on by the plea in abatement or in bar. The court in this state has been inclined to adopt that doctrine, and it was on this ground, that the case of the Boston Type and Stereotype Foundary vs. Spooner, was decided. If [459]*459these decisions were correct, the plaintiff was bound to show his corporate character under the special pleas. If the special pleas were not good and the plaintiff would have been safe in demurring, it must have been on the ground that he was bound to show this fact under she general issue.
In New York, it is decided, that in an action in favor of a corporation, they must show their character under the general issue, and there is an authority in Lord Ray to this effect. If they are thus required under that issue, the plea that there is no such incorporation would be bad ; as any special plea which denies what the plaintiff must show under the general issue, is bad. Hence the court in that state, has decided that such plea is bad. The doctrine adopted in this state is conformable to the latter decision in England and in the supreme court of U. S.
It is however immaterial in this case, as under one plea or the other, the plaintiff was bound to make proof of his corporate character. For this purpose he introduces parol testimony, and the act ot the legislature of this state, passed in 1808. The act of 1808, is in the following words:—
“ Whereas, a grant has heretofore been made under the author- “ ity of the State of Vermont, and a charter regularly issued un- “ der seal of said State, bearing date the 14th of June A. D. “ 1785, to John Wheelock, President of Moor’s Charity School “ and the trustees of Dartmouth College, of a township of land “ by the name oí Wheelock, the one moiety thereof to the said “ President, and his successors in office for the sole use and bene- “ fit of said school, and the other moiety thereof to the said trus- “ tees, for the use and benefit of said college, forever; and where- “ as doubts are entertained, whether said school had a legal capac- “ ity to take said grant, and disputes have thereon arisen ; and “ whereas, also, the said John Wheelock, in behalf of said school “ and college, has by memorial, petitioned this legislature to pass “ an act declaring that the president of said school, for the time “being, with the advice and consent of the trustees of said col- “ lege, may and shall expend all the avails accruing to said school “ from the said granted premises, agreeably to the true intent of “ said grant. — Therefore,
“ Sec. 1. It is hereby enacted by the General Assembly of the “ State of Vermont, and declared, That the said school, whether “ known and called by the name of Moor’s Charity School, or “Moor’s Indian Charity School, and the president thereof, of “ right had and has a legal capacity of taking, holding, and enjoy- “ ing said granted premises, according to the tenor, true intent and “ meaning of said grant, and the said grant of the township of “Wheelock is hereby ratified and confirmed to the said school, and “ the said president thereof, and his successors, and to the trustees^- [460]*460“ 0f said Dartmouth College, with all the uses therein contained “ according to the tenor, true intent and meaning thereof.
“ And it is hereby further enacted, That the president of said “ school,for the time being, with the advice and consent of the trustees of Dartmouth College, and who are hereby declared to “ be trustees of said school and not otherwise, may and shall ex- “ pend all the avails accruing to said school from the said granted “ premises agreeable to the true intent of said grant.
The act itself without the recital in the preamble, and with it, undoubtedly, gives a corporate character and capacity to sue to the president of Moor’s Charity School and his successors in office, and whoever js now, or shall be hereafter president of that school, have a legal capacity to take hold and convey whatever is granted to them and maintain any actions necessary to protect the property granted. It is insisted that the statute should not have been admitted in evidence, without producing the grant and charter of 1785. As it respects those parties, the preamble or recital was evidence of the grant or charter therein mentioned. No principle is better established than that the recital of a deed in a subsequent deed is evidence of the former against a party to the latter, though it may not be against a stranger or against one who derives title from the grantor, before the deed which contains the recital. A charter from the government reciting that a former charter has been surrendered, is evidence of that fact. The confirmation grants', from the governor of New York, reciting the surrender of the New Hampshire grants, have always been considered as sufficient evidence of the surrender. The legislature of the state of Vermont, the sovereign power, in 1808, passed a declaratory and confirming statute, in which they recognize and declare that on the 14 June 1785, a grant was made under the authority of the state, and a charter issued to John Wheelock, President of Moor’s Charity School, and to the trustees of Dartmouth College, of a township of land, one moiety thereof to the said president and his [successors in office. This is sufficient evidence of that fact as against the state of Vermont and all persons who claim under the president of that school.
A further objection is then raised to this statute, that it was void for want of a [competent grantee to take, and a variety of cases have been referred to, which have all been before the court in another case arising on the will of Mr. Burr.
There is no doubt that in every private grant there must be a person competent to take; a sufficient grantee, or the grant will be inoperative and void,
[461]*461But in a public grant emanating from the same power, who C{m create a corporation, the" very grant or charter creates and gives the competency to take.
Thus the original charter, and beyond all doubt, the statute of 1808 made the president of the Charity School and his successors in office, a corporation capable of taking and enjoying the benefit of the grant. The objection that this was a foreign corporation, is of no avail; whether it was expedient to make this grant to a foreign corporation, was a question addressed to the legislature. They undoubtedly could give legal existence to a body of men living without their territorial limits or to a corporation existing in a foreign government. In this view of the case it is not material to determine whether the evidence of M. Olcott was admissible to prove the existence of a corporation.
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The opinion of the court was delivered by
Williams, Ch. J.
The plaintiff sues as President of Moor’s Charity School and successor of John Wheeloek ; as a corporation sole.
As his corporate capacity is denied and is expressly put in issue by the pleadings, it was incumbent on him to make proof of this allegation. It is not important to enquire whether the pleas were good or not. There is no doubt that when a corporation commence an action in their corporate name, they must make proof of the fact if required.
In the supreme court of U. S., it has been decided, that if a defendant means to insist upon the want of a corporate character in the plaintiff, it must be insisted on by the plea in abatement or in bar. The court in this state has been inclined to adopt that doctrine, and it was on this ground, that the case of the Boston Type and Stereotype Foundary vs. Spooner, was decided. If [459]*459these decisions were correct, the plaintiff was bound to show his corporate character under the special pleas. If the special pleas were not good and the plaintiff would have been safe in demurring, it must have been on the ground that he was bound to show this fact under she general issue.
In New York, it is decided, that in an action in favor of a corporation, they must show their character under the general issue, and there is an authority in Lord Ray to this effect. If they are thus required under that issue, the plea that there is no such incorporation would be bad ; as any special plea which denies what the plaintiff must show under the general issue, is bad. Hence the court in that state, has decided that such plea is bad. The doctrine adopted in this state is conformable to the latter decision in England and in the supreme court of U. S.
It is however immaterial in this case, as under one plea or the other, the plaintiff was bound to make proof of his corporate character. For this purpose he introduces parol testimony, and the act ot the legislature of this state, passed in 1808. The act of 1808, is in the following words:—
“ Whereas, a grant has heretofore been made under the author- “ ity of the State of Vermont, and a charter regularly issued un- “ der seal of said State, bearing date the 14th of June A. D. “ 1785, to John Wheelock, President of Moor’s Charity School “ and the trustees of Dartmouth College, of a township of land “ by the name oí Wheelock, the one moiety thereof to the said “ President, and his successors in office for the sole use and bene- “ fit of said school, and the other moiety thereof to the said trus- “ tees, for the use and benefit of said college, forever; and where- “ as doubts are entertained, whether said school had a legal capac- “ ity to take said grant, and disputes have thereon arisen ; and “ whereas, also, the said John Wheelock, in behalf of said school “ and college, has by memorial, petitioned this legislature to pass “ an act declaring that the president of said school, for the time “being, with the advice and consent of the trustees of said col- “ lege, may and shall expend all the avails accruing to said school “ from the said granted premises, agreeably to the true intent of “ said grant. — Therefore,
“ Sec. 1. It is hereby enacted by the General Assembly of the “ State of Vermont, and declared, That the said school, whether “ known and called by the name of Moor’s Charity School, or “Moor’s Indian Charity School, and the president thereof, of “ right had and has a legal capacity of taking, holding, and enjoy- “ ing said granted premises, according to the tenor, true intent and “ meaning of said grant, and the said grant of the township of “Wheelock is hereby ratified and confirmed to the said school, and “ the said president thereof, and his successors, and to the trustees^- [460]*460“ 0f said Dartmouth College, with all the uses therein contained “ according to the tenor, true intent and meaning thereof.
“ And it is hereby further enacted, That the president of said “ school,for the time being, with the advice and consent of the trustees of Dartmouth College, and who are hereby declared to “ be trustees of said school and not otherwise, may and shall ex- “ pend all the avails accruing to said school from the said granted “ premises agreeable to the true intent of said grant.
The act itself without the recital in the preamble, and with it, undoubtedly, gives a corporate character and capacity to sue to the president of Moor’s Charity School and his successors in office, and whoever js now, or shall be hereafter president of that school, have a legal capacity to take hold and convey whatever is granted to them and maintain any actions necessary to protect the property granted. It is insisted that the statute should not have been admitted in evidence, without producing the grant and charter of 1785. As it respects those parties, the preamble or recital was evidence of the grant or charter therein mentioned. No principle is better established than that the recital of a deed in a subsequent deed is evidence of the former against a party to the latter, though it may not be against a stranger or against one who derives title from the grantor, before the deed which contains the recital. A charter from the government reciting that a former charter has been surrendered, is evidence of that fact. The confirmation grants', from the governor of New York, reciting the surrender of the New Hampshire grants, have always been considered as sufficient evidence of the surrender. The legislature of the state of Vermont, the sovereign power, in 1808, passed a declaratory and confirming statute, in which they recognize and declare that on the 14 June 1785, a grant was made under the authority of the state, and a charter issued to John Wheelock, President of Moor’s Charity School, and to the trustees of Dartmouth College, of a township of land, one moiety thereof to the said president and his [successors in office. This is sufficient evidence of that fact as against the state of Vermont and all persons who claim under the president of that school.
A further objection is then raised to this statute, that it was void for want of a [competent grantee to take, and a variety of cases have been referred to, which have all been before the court in another case arising on the will of Mr. Burr.
There is no doubt that in every private grant there must be a person competent to take; a sufficient grantee, or the grant will be inoperative and void,
[461]*461But in a public grant emanating from the same power, who C{m create a corporation, the" very grant or charter creates and gives the competency to take.
Thus the original charter, and beyond all doubt, the statute of 1808 made the president of the Charity School and his successors in office, a corporation capable of taking and enjoying the benefit of the grant. The objection that this was a foreign corporation, is of no avail; whether it was expedient to make this grant to a foreign corporation, was a question addressed to the legislature. They undoubtedly could give legal existence to a body of men living without their territorial limits or to a corporation existing in a foreign government. In this view of the case it is not material to determine whether the evidence of M. Olcott was admissible to prove the existence of a corporation. The broad position assumed by the counsel for the defendant, that the existence of a corporation, can only be proved by the act or charter of incorporation as a certified eopy thereof, cannot be sustained. A corporation may exist by presumption. Several instances are mentioned in the case of Searsbury Turnpike Company vs. Cutler, 6 Vt. R. 315, when the existence of a corporation may be proved by other evidence than the production of the charter.
In further examining this cause, we find that the defendants claimed title by virtue of several mesne conveyances from Samuel Ward, and that Samuel Ward’s title was alease for 998 years from Dr. Wheelock as President of Moor’s Charity School, as well as of Dartmouth College.
A tenant is estopped from denying his landlord’s title. A person executing a deed is estopped from- denying a recital in the deed. And when a party relying on matter of estoppel has no opportunity of pleading it, he may give it in evidence, and it will'have the same effect as if pleaded. An estoppel arising from the fact of tenancy under a landlord, can only be taken advantage of in an action of ejectment by giving it in evidence. A landlord commences an action of ejectment; — the defendant pleads not guilty, and on trial attempts to set up a title adverse to his landlord,; — the landlord has no opportunity of pleading the lease as an estoppel, but must rely upon it as evidence. The effect of this lease from Dr. Wheelock was to estop Mr. Ward and the defendant, who claims under him, from denying the" title of Dr. Wheelock as President of Moore’s Charity School, and his successors in that office, to the land in question, if the corporate character was sufficiently estab[462]*462lished; and we have already considered that the grant of 1783 and the act of 1808 established that character.
On this view of the case, we have no hesitation in saying, that the President of Moore’s Charity School, for the time being, has a capacity to take the one half of the town of Wheelock, granted in the year 1785: — that the defendant is estopped from denying the title of the President of said school thereto, and must pay the rent or yield up the possession of the land, and that an action may be maintained against him therefore by the President of the school.
There is another question remaining in this case, which is attended with more difficulty — that is, whether Dr. Lord, the present plaintiff, is the successor of Dr. Wheelock, as President of that school. That he is successor as President of Dartmouth College, is clear. If the act of the legislature of New-Hampshire, passed in June, 1807, which was given to us among the other papers, but was not in evidence, and is not a part of the case, had been given in evidence on the trial by the jury, the judgment of the county court must have been affirmed.
Parol evidence that the President of Dartmouth College had ever been considered as the President of the school, might have been sufficient; and that such evidence jmight have been procured, is apparent from the act of New-Hampshire, before alluded to. But this act was not in evidence in the present case, and the only pa-rol evidence upon this point was that of Mr. Olcott, who testified that he had no certain knowledge that the several Presidents of Dartmouth College, who have succeeded Dr. Wheelock, exercised the office of President of Moore’s Charity School, but that it has always been understood that the charge and control, of said school has been exercised by the President of Dartmouth College. The court eharged the jury that this evidence, if believed, was sufficient to entitle the plaintiff to recover.
We cannot see, in the testimony detailed, sufficientjevidence that Dr. Lord was successor of Dr. Wheelock as President of the school, or that the President of Dartmouth College is President of that school; and for this reason, the judgment must be reversed, and a new trial granted. It is with some reluctance that we find ourselves compelled to come to this conclusion.; as the act of New-Hampshire, before alluded to, if it had been in evidence, would have been conclusive on this question.