Per Curiam.
We think that in a suit of this kind, a deficiency in the parish records is not to be supplied by the testimony of the inhabitants. Taylor v. Henry, 2 Pick. 402. If a vote is omitted, the application should be for process to [16]*16compel me clerk to amend Ms records.1 Tills is our present op™0115 but we can revise it, should it become necessary.
April term 1828.
An argument was then had upon the case as it stood without these depositions.
Wilde J.
delivered the opinion of the Court. This case, although incumbered with many facts, depends principally on the covenant or agreement set out in the bill, and the proceedings of the defendants in relation to that agreement.
It is alleged in the bill, that in the year 1802 an agreemen was entered into between the defendants and divers inhabitants of Sandy Bay, who were then members of a society called the Independent Society of Gloucester, for the purpose of erecting a house for public worship, to be held and used by them as tenants in common, for their mutual convenience and benefit, according to the terms of the agreement, which are particularly set forth in the bill. The defendants deny that they ever became a party to this agreement; and it appears, that at a legal meeting of the inhabitants of the parish on the 18th day of February, 1805, the same was rejected by a vote of the parish. But the plaintiffs contend, that the parish was .bound by their previous acts and votes, and consequently that the vote of February 1805 was inoperative.*
The agreement bears date the 20th of August, 1802, and was probably signed about that time. At a previous parish meeting, held on the 25th of May, 1802, it was voted, that the Independent Society build the new meetinghouse according to their town valuation, with the other society called the Fifth Parish of Gloucester. It was also voted to build and improve the house according to the town valuation. The meetinghouse was accordingly built and completed in the year following, and the pews were disposed of, in pursuance of a vote of the parish, among the subscribers of the agreement, and the other members of the two societies. Committees also were appointed by those societies to apportion the time in which each should use and occupy the meetinghouse, according to the stipulations contained in the agreement. And for two years [17]*17the house was occupied according to the apportionment made by the committees.
The plaintiffs contend, that these votes and proceedings of the parish amount in law to an acceptance of the agreement.
So far as the terms of the agreement and the votes of the parish coincide, the parish is certainly bound, and thus far the plaintiffs are entitled to relief, provided the Court has jurisdiction of the case, and the present parties are the parties to the original contract, or their legal representatives.
The plaintiffs claim in behalf of themselves and the other members of the Universalist Benevolent Society, so called, but it does not appear that they are the successors or legal representatives of .the Independent Society for whose benefit the contract was made. The bill therefore cannot be sustained for the benefit of the Universalist Benevolent Society. Nor car; the plaintiffs maintain their suit as subscribers to the agreement, because some of them are not subscribers, and have no interest in the contract. But as these objections may be removed by amending the bill, or by filing a new one, it seems proper that we should decide the question of jurisdiction, so as to prevent, as far as may be, further controversy.
If we consider the agreement as an executory contract not involving a trust, it is clear that we have no authority to decree a specific performance. The statute of 1817, c. 87, expressly limits the jurisdiction of the Court to contracts made subsequently to the passing of the act. And if the agreement might be considered as involving a trust to be performed by the defendants, still it was a trust arising under a paroi contract, and not under a deed, and so is not within the equity jurisdiction of the Court.f† 1 The vote of the parish is neither a deed nor equivalent to a deed ; nor does it appear that the grant from [18]*18the commoners of Gloucester was by deed. If however it were by a deed of trust, the trust could not be enforced against the defendants, who are not the trustees, and do not hold the estate under that grant. It is true that all persons coming into possession of a trust estate, with notice of the trust, are bound to perform the trust.2 But as this bill is framed, no such question can be raised. The trust, as set forth in the bill, is alleged to spring from the agreement between the subscribers and the parish. If any trust had been created by the grant of the commoners of Gloucester, the trust should be set out in the bill, with suitable averments ; and then the questions might arise, whether the grant were by deed, within the meaning of the statute of 1817 ; whether the parish had notice of the trust; and other questions which it is unnecessary to particularize. At present, nothing appears in the facts stated which can give us jurisdiction under the statute of 1817.
The remaining question to be considered is, whether we have jurisdiction under the statute of 1823, c. 140, which provides that this Court may hear and determine in equity all disputes between co-partners, joint-tenants, and tenants in common.* The plaintiffs’ counsel contend that the parties are tenants in common of the meetinghouse, but from the facts admitted the title to the land on which it was erected appears to be in the parish. It is agreed that for more than forty years the parish has been in the open, exclusive, and undisturbed possession of the lot in question, which possession alone is a sufficient title.
But if we look into the original title, we find it equally clear that the parties are not tenants in common. The grant of the commoners of Gloucester in 1724, was to' “ John Pool, John Tan', Jabez Barker, and the rest of the neighbourhood at the head of the cape, for the use of a school for ever.”
If under this grant the persons named took an estate m trust for the use of the neighbourhood, as the plaintiffs’ counsel [19]*19have argued, then the parish in its corporate capacity has no title under the grant, either legal or equitable. The trustees took the legal estate, and the other inhabitants of the neighbourhood were the cestui que trusts. And if the persons named in the grant took jointly or in common with the inhabitants not named, the parties do not hold the estate in common, for the plaintiffs have shown no title under the grantees; and if they had, they would hold in common with other individuals, and not with the parish.
But the plaintiffs’ counsel contend, that the parties are tenants in common of the meetinghouse, if not of the land, because it was built at their joint expense, and for their common benefit. But in determining the question, whether the parties are tenants in common, we must look at the legal title, which is clearly in the parish. The portion of the expenses contributed by the subscribers of the agreement and the Independent Society, towards the building of the meetinghouse, gave them no legal title in the property.
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Per Curiam.
We think that in a suit of this kind, a deficiency in the parish records is not to be supplied by the testimony of the inhabitants. Taylor v. Henry, 2 Pick. 402. If a vote is omitted, the application should be for process to [16]*16compel me clerk to amend Ms records.1 Tills is our present op™0115 but we can revise it, should it become necessary.
April term 1828.
An argument was then had upon the case as it stood without these depositions.
Wilde J.
delivered the opinion of the Court. This case, although incumbered with many facts, depends principally on the covenant or agreement set out in the bill, and the proceedings of the defendants in relation to that agreement.
It is alleged in the bill, that in the year 1802 an agreemen was entered into between the defendants and divers inhabitants of Sandy Bay, who were then members of a society called the Independent Society of Gloucester, for the purpose of erecting a house for public worship, to be held and used by them as tenants in common, for their mutual convenience and benefit, according to the terms of the agreement, which are particularly set forth in the bill. The defendants deny that they ever became a party to this agreement; and it appears, that at a legal meeting of the inhabitants of the parish on the 18th day of February, 1805, the same was rejected by a vote of the parish. But the plaintiffs contend, that the parish was .bound by their previous acts and votes, and consequently that the vote of February 1805 was inoperative.*
The agreement bears date the 20th of August, 1802, and was probably signed about that time. At a previous parish meeting, held on the 25th of May, 1802, it was voted, that the Independent Society build the new meetinghouse according to their town valuation, with the other society called the Fifth Parish of Gloucester. It was also voted to build and improve the house according to the town valuation. The meetinghouse was accordingly built and completed in the year following, and the pews were disposed of, in pursuance of a vote of the parish, among the subscribers of the agreement, and the other members of the two societies. Committees also were appointed by those societies to apportion the time in which each should use and occupy the meetinghouse, according to the stipulations contained in the agreement. And for two years [17]*17the house was occupied according to the apportionment made by the committees.
The plaintiffs contend, that these votes and proceedings of the parish amount in law to an acceptance of the agreement.
So far as the terms of the agreement and the votes of the parish coincide, the parish is certainly bound, and thus far the plaintiffs are entitled to relief, provided the Court has jurisdiction of the case, and the present parties are the parties to the original contract, or their legal representatives.
The plaintiffs claim in behalf of themselves and the other members of the Universalist Benevolent Society, so called, but it does not appear that they are the successors or legal representatives of .the Independent Society for whose benefit the contract was made. The bill therefore cannot be sustained for the benefit of the Universalist Benevolent Society. Nor car; the plaintiffs maintain their suit as subscribers to the agreement, because some of them are not subscribers, and have no interest in the contract. But as these objections may be removed by amending the bill, or by filing a new one, it seems proper that we should decide the question of jurisdiction, so as to prevent, as far as may be, further controversy.
If we consider the agreement as an executory contract not involving a trust, it is clear that we have no authority to decree a specific performance. The statute of 1817, c. 87, expressly limits the jurisdiction of the Court to contracts made subsequently to the passing of the act. And if the agreement might be considered as involving a trust to be performed by the defendants, still it was a trust arising under a paroi contract, and not under a deed, and so is not within the equity jurisdiction of the Court.f† 1 The vote of the parish is neither a deed nor equivalent to a deed ; nor does it appear that the grant from [18]*18the commoners of Gloucester was by deed. If however it were by a deed of trust, the trust could not be enforced against the defendants, who are not the trustees, and do not hold the estate under that grant. It is true that all persons coming into possession of a trust estate, with notice of the trust, are bound to perform the trust.2 But as this bill is framed, no such question can be raised. The trust, as set forth in the bill, is alleged to spring from the agreement between the subscribers and the parish. If any trust had been created by the grant of the commoners of Gloucester, the trust should be set out in the bill, with suitable averments ; and then the questions might arise, whether the grant were by deed, within the meaning of the statute of 1817 ; whether the parish had notice of the trust; and other questions which it is unnecessary to particularize. At present, nothing appears in the facts stated which can give us jurisdiction under the statute of 1817.
The remaining question to be considered is, whether we have jurisdiction under the statute of 1823, c. 140, which provides that this Court may hear and determine in equity all disputes between co-partners, joint-tenants, and tenants in common.* The plaintiffs’ counsel contend that the parties are tenants in common of the meetinghouse, but from the facts admitted the title to the land on which it was erected appears to be in the parish. It is agreed that for more than forty years the parish has been in the open, exclusive, and undisturbed possession of the lot in question, which possession alone is a sufficient title.
But if we look into the original title, we find it equally clear that the parties are not tenants in common. The grant of the commoners of Gloucester in 1724, was to' “ John Pool, John Tan', Jabez Barker, and the rest of the neighbourhood at the head of the cape, for the use of a school for ever.”
If under this grant the persons named took an estate m trust for the use of the neighbourhood, as the plaintiffs’ counsel [19]*19have argued, then the parish in its corporate capacity has no title under the grant, either legal or equitable. The trustees took the legal estate, and the other inhabitants of the neighbourhood were the cestui que trusts. And if the persons named in the grant took jointly or in common with the inhabitants not named, the parties do not hold the estate in common, for the plaintiffs have shown no title under the grantees; and if they had, they would hold in common with other individuals, and not with the parish.
But the plaintiffs’ counsel contend, that the parties are tenants in common of the meetinghouse, if not of the land, because it was built at their joint expense, and for their common benefit. But in determining the question, whether the parties are tenants in common, we must look at the legal title, which is clearly in the parish. The portion of the expenses contributed by the subscribers of the agreement and the Independent Society, towards the building of the meetinghouse, gave them no legal title in the property. These expenses were advanced in pursuance of an agreement made, or supposed to be made, with the parish, which however cannot be construed into a grant of any right or title in the building. Nor have the plaintiffs acquired any title by occupation, for this was under a vote of the parish for a limited time, which has long since expired.
The only remedy the plaintiffs have is at law on the contract, or an implied assumpsit for the expenses ; and this remedy is still open for them, if not lost by lapse of time.* It may be an inadequate remedy, and no doubt this is a proper case for a court of equity ; but without more ample jurisdic•ion, it is impossible for us to grant relief in equity.1
Bill dismissed with costs.
To show that the plaintiffs were proper parties, their counsel cited Lloyd v. Loaring, 6 Ves. jun. 773; Cockbum v. Thompson, 16 Ves. jun. 321; Scots Char. Soc. v. Shaw, 8 Mass. R. 532.—For the defendants was cited Baptist Association v. Hart’s Executors, 4 Wheat. 1. Reporter.