Mellen C. J.
now delivered the opinion of the Court, as follows.
In those cases respecting grants or donations of lands to the use of the ministry, to which we have been referred in the argument, or to which our researches have extended, the question has been between persons or corporations claiming under such grant or donation, and third persons, strangers thereto. In no instance have we found the action brought by the original grantors with a view of reclaiming the estate, or regaining and holding the possession of it, on the ground that the fee did not pass by the grant or instrument intended to convey it.
In the case at bar, the original grantors are seeking to reclaim and repossess the estate granted by them ; proceeding on the idea that they are lawfully entitled to take the custody and income, until the event contemplated in the grant shall have taken place,—viz. the existence of a congregational minister and parish, or at least a parish, in the east part of the town of Shapleigh, now the east parish. It is admitted that such a parish does not exist, and never has existed there. The question, therefore, which the facts in this case present, does not appear to have been expressly decided ; though we apprehend that we are furnished with principles in many decided cases, relative to ministerial or glebe lands, which will lead us to correct and legal conclusions.
It seems to be agreed that the demanded premises were once the undisputed property of the demandants; and it appears by the report of the Judge that the tenant has no title to them other than possession.
On these facts it is contended by the counsel for the demand-ants, in the first place, that the grant by the proprietors in the year 1780 of the demanded premises is void, because there was at that time no person or corporation capable in law of taking the estate granted ; and that of course the allotment in 1784 is also void as to the lots of land in question :—and in the second place, that if the grant and allotment be good and valid, still, in the circumstances of this case the demandants have a right to the custody and possession of the lands so granted and allotted, until they shall be appropriated and possessed in the manner and for the purposes mentioned or intended in the grant; and [281]*281of course that they may rightfully maintain this action against a stranger who has intruded himself into the lands, to the prejudice of all who have any legal interest therein.
With respect to the first point we apprehend that the objections urged by One of the demandants’ counsel are not so substantial as he seems to have considered them. We are not disposed to doubt the correctness of the principles on which the numerous cases he has cited are founded ; but we do not consider them as applicable to the present case, or to grants or donations of land to the use of the ministry. It is not necessary therefore particularly to discuss them. We are not aware that such grants or donations were ever considered void and inoperative, either before or since the revolution, on the principle that no person or corporation, capable of taking, existed at the time of the grant. Should such a principle be considered as sufficient to defeat such grants, it would in numberless instances frustrate the benevolent intentions of the legislature, or of generous individuals, in the bestowment of their bounty. But we are not Without authorities on this point. In Rice v. Osgood, 9 Mass. 38. the Court speak of the manner in which estates granted for ministerial purposes vest, w’hen the corporation for whose use and benefit they are intended is not in esse at the time of the grant; and in the case of Brown v. Porter, 10 Mass. 93. the nature of such grants and donations is particularly considered and explained by the late Chief Justice Sewall, in delivering the opinion of the Court. To the same point also is the case of Pawlet v. Clark, 9 Cranch 292. But we need not any farther consider the validity of the grant made by the proprietors, because if the second ground on which the demandants proceed can be maintained, the validity or invalidity of the grant is of no importance. If it be void, then the demandants are entitled to judgment: or if the grant be valid, and yet the demandants are in law authorized to hold the possession and custody of the demanded premises till a grantee shall exist capable of taking according to the grant,: the same consequence will follow’, and judgment must be entered on the verdict.
The demandants contend that the fee of the lands granted still remains in them, because neither the person nor the corporation for whose use the grant was made is yet in esse. For the [282]*282tenant it is contended that at the time of the grant the lee passed from the proprietors, and has ever since remained, and now remains, in abeyance; that consequently the demandants cannot now reclaim the estate, or recover the possession and retain the custody of it; and that they have no controling power over the lands granted, or interest in, or right to possess them.
It becomes necessary to examine this doctrine of abeyance with some attention, in order to ascertain the merits of the de-fence as founded on the principle that the fee of the demanded premises passed out of the proprietors at the time of the grant, and has ever since remained and now remains in abeyance.
Abeyance is said to be “ a fiction in law-allowed only “ where necessary, and to avoid an absurdity or inconvenience,, ⅛ and for the benefit of a stranger, to preserve his right.” “ The “ law does not allow it but where the original creation of estates “ or where the consequence of estates and cases do in congruity “ require it.” Vin. Abr. Abeyance A. 2. 3.
Devise to A. for life, and if A. have issue male, then to such issue male and his heirs forever; and if A. leave no issue male, then to B. in fee. It was held by Ld. Ch. J. Parker that since construing the fee to be in abeyance would tend to destroy it, and since nothing; but necessity m any case should occasion a fee simple to be in abeyance, he should abide by the opinion which had been given, that where the remainder was devised in contingency, the reversion in fee descended to the heirs at law in the mean time. Vin. Abr. Abeyance B. 15. 1 P. Wms. 505. 511. 515.
In the case of Vick v. Edwards, 3 P. Wms. 372. lands were devised to B. and C. and the survivor of them, and the heirs of such survivor, in trust to sell. Ld. Chancellor Talbot held that the fee was in abeyance. But it is laid down in note 78. to Co, Lit. 191. a. Title. “Tenants in common,” that notwithstanding the case of Vick v. Edwards it seems now to be the prevailing opinion that in these cases the fee is not in abeyance, but remains pending and subject to the contingency, in the grantor and his heirs ;—that there is something undisposed of, viz. the intermediate estate, until, by the death of one of the parties the remainder vests ; and that therefore this intermediate estate continues in the grantor, the law never supposing the estate to be in [283]*283abeyance, unless where it is necessary to recur to this construction for preserving some estate or right. The case of Purefoy v. Rogers, 2 Saund. 380. and others, are mentioned as strongly favouring this later opinion. “ In case of a devise to the effect in question, the reversion in fee descends to the heirs of the devis- or, during the suspension of the contingency.” Co. Lit. 191. a. [note 78.]
Mr. Fearne, in his learned treatise on Contingent Remainders, &c. ch. 6. has entered fully into an examination of the doctrine of abeyance, and with much force of reasoning has laboured to shew that in those instances where the estate has been supposed to be in abeyance, the fee does in fact remain in the grantor or devisor or their heirs ; and the prevailing opinion is in favour of the conclusions which he has drawn from the adjudged cases. In support of the principle he is establishing he cites Sir Edward Clere’s case, 6 Rep. 17. b. Leonard Lovie's case, 10 Rep. 78. 85. b. Beck's case, Lit. Rep. 159. 253. 285. 315. 344. Cro. Car. 363. Carth. 262. in which it was said by Holt that in case of feoffment to the use of A. in tail, remainder to the right heirs of J. S, then living, the fee simple is not in abeyance, nor in the feoffees, but results to the grantor and remains in him, until the contingency happens by the death of J. S. Also Plunket v. Holmes, Raym. 28. and 1 Rep. 68. Archer’s case, both of which settle the same principle. Also Purefoy v. Rogers, 2 Saund. 380. where there was a devise to wife for her life, with contingent remainder to son ; and Hale C. J. said it was clear that the reversion was in the heir of the testator by descent, and not in abeyance, The case of Carter v. Barnardiston, 1 P. Wms. 505. was a devise to C. for life, and in case C. should have issue male, then to such issue male and his heirs forever; and after the death of C., in case he should leave no issue male, then to D. in fee. The master of the Rolls considered the fee in abeyance ; but on appeal, Ld. Chan. Parker made a point of repro-bating and exploding that notion, and held that nothing but necessity could, in any case, support the admission of it; and he overruled the opinion of the master of the Rolls.” The case of Loddington v. Kime, 1 Salk. 224. 1 Ld. Raym. 209. supports his decision.
Mr. Fearne contends that the inheritance continues i¡i the, [284]*284grantor when a remainder of inheritance is created, in conveyances at common law, as well as in conveyances byway of use, and dispositions by will. In support of this principle he cites 2 Rol. Abr. 418. Co. Lit. 216. a. 217. 218. a. relating to the enlargement of estates upon condition, and the cases there cited, to shew that “ there was no such universally allowed absurdity “ in the texture of the common law, as to prevent the inheritance “ from continuing in the grantor, where there was no passage for “ its transition open at the time of the livery.” See also Hale’s opinion in Colthirst v. Bejushin, Plowden 31. a, Gilbert, speaking of a lease for life, remainder to the right heirs of J. S', then living, and adopting the principle of abeyance, says, “ all remain- “ dei’s must pass out of the donor at the time of the limitation”. And then considering a case where the remainder could never vest, he observes, “ as to the feoffor, he or his heirs were still in “ esse; and since the grantee could not take the remainder, and “ no other person had a right to claim it, it must return back “ again and settle in the feoffor, as if no disposition had been madef Upon this Fearne observes, “ Now what does such an answer to “ the objection plainly amount to, more or less than that the “ feoffor and his heirs still continued tenants to the lord ; be- “ cause neither the grantee, nor any other person in the world, “ having any right under the limitation of the remainder, it W'as “ as much out of the case, and the feoffor and his heirs as fully “ entitled, as if it had never been made. To whom then could “ it ever have passed out of the grantor 9 and from whom could “ it ever return to him ? Where is the sense in saying that a “remainder must pass out of the grantor, in a case where you “ deny it ever passed at all to the grantee, or any body else ? “Would there not be better sense in considering the disposition “ itself, in all these cases, as put in suspense till the event or con-; “ tingency referred to decides its effect ? What is there to move “ the subsisting estate in the lands from the grantor, before the “ alienation takes effect ? That alienation may indeed vest in “ abeyance, or expectation, till the contingency or future event “ gives it operation ; and it is that, rather than the respited in- “ heritance, to which, during its mere potential, undecided opera- “ tion, the allusion of caput inter nubila condtt seems most applica- “ ble. In short, to bring this doctrine to the test of reason, we [285]*285“ may state it thus: A man makes a disposition of a remainder, “or future interest, which is to take no effect at all until a future “ event or contingency happens. It is admitted that no interest “ passes by such a disposition to any body before the event “ referred to takes place. The question is, what becomes of the “intermediate reversionary interest, from the time of the making of such future disposition, until it takes effect? It was in “ the grantor or testator at the time of making such disposition : “ It is confessedly not included in it: The natural conclusion “seems to he, that it remains where it was, in the grantor or •“ testator, or his heirs, for want of being departed with to any “ body else. Who can derive a title to an estate under a prospective disposition, which confessedly never takes any effect?”
Before examining any of the decisions of the Courts in our own country, it may be proper here to observe that in the numerous cases cited, a portion only of the estate, viz. a remainder, was to vest on a contingency, which contingency was clearly expressed in the conveyance or devise. But in the case at bar no contingency is expressed in terms; and the whole estate was granted and was to vest at the same time, and in the same grantee, whenever such grantee should come into existence to take the estate granted. Still, we apprehend, there is no difference between the cases cited and the case before us, in regard to the application of the doctrine of abeyance, or rather of the principles opposed to that doctrine. The grant of the demanded premises was not expected or intended to take complete effect till, and so soon as, such a grantee should be in esse as the grant contemplated, and such an one might never exist; certainly none such is yet in being. The event on which the estate granted was to take effect was known to be distant and contingent; and thus far the present case resembles those which we have examined : and as to the other point of supposed difference, it seems plain that if the fee of a remainder continues in the grantor till the contingency happens, because that only depends on the contingency ; for the same reason the fee of the whole estate must remain in the grantor, till the event or contingency happens, when such contingency relates to and is designed to affect the whole estate.
In the case of Rice v. Osgood, 9 Mass. 38. Sewall, C. J. in delivering the opinion of thp Court, says, “ When a patentee ac- [286]*286“ cording to the condition of the grant to him, makes a grant or assignment, the estate vests where the appropriation is to a “ person or corporation in esse, and is accepted by him or them; “ and where contingent and to a person or corporation not in “ esse, the estate remains in the patentee until the contingency “ happens, and then vests, if accepted.” In that case a township had been granted by the General Court to one Brown, on condition, among other things, that he should give bond to the treasurer to assign one sixty-fourth part io the use of the ministry, and Rice, the settled minister, claimed the sixty-fourth part in right of the town, for the use of the ministry.
In Weston v. Hunt, 2 Mass. 500, the Court say, “ the minister “ holding parsonage lands in fee simple, holds them in right of “ his parish or church ; and therefore, on his resignation, depri- ^ vation or death, the fee is in abeyance.” And again—“ If “ there be a minister, the fee is in him ; and if there be a va- “ caney, the fee is in abeyance.”
In the case before mentioned of Brown v. Porter, Sewall C.J. in delivering the opinion of the Court, observes—“ Lands thus “ given and appropriated to pious uses are holden by the min- “ ister of the parish or corporation for whose use and benefit “ the gift or appropriation is made, as an estate in fee simple to “ him and his successors, taking the same upon a regular settle- “ ment and ordination as a sole corporation ; and until such ap- “ pointment, and during vacancies in the ministry, the estate be- ^ ing in abeyance,—but in the custody of the parish”—&c.
It will be observed that the Court, in neither of the two last mentioned cases, are explicit as to the situation of the fee between the time of the grant and the creation of the contemplated parish or corporation for whose use the grant is made; or whether during that interval the fee is to be considered in abeyance. Those cases seem to go no further than to show that when a parish has been formed, and had the legal custody of the land, the fee is in abeyance until the appointment of a minister; and so it is after a minister has been seized, and is dead or has resigned, &c.—the fee is in abeyance, and the parish has the custody.
Neither did the facts in Pawlet v. Clark render it necessary to draw the line with precision ; because some years before the [287]*287commencement of the action, a Church existed in the town, of the kind contemplated.
Fictions of law are always designed to answer the purposes of Justice ; but are not permitted to prejudice rights or to work injury to anyone. Their object is to preserve, not to defeat, an estate;—to effectuate, not to thwart, intentions evidently expressed in a conveyance. Hence the fiction respecting the abeyance of the fee is never to be admitted, when its tendency would be to defeat a remainder. Fearne 355. And there is still less reason for viewing the doctrine with favour, in the case before us, where it would not only go to endanger the estate granted, by leaving it without protection and without an owner : and when on the contrary, by considering the fee as remaining in the demandants, they will guard it from destruction and preserve it for its destined uses.
It will be recollected that in the case before us the grant by the proprietors was made in the year 1780 ; and that on their application the legislature of Massachusetts on the thirtieth day of October 1782, confirmed to them the lands contained in the town of Shapleigh on condition “ that the several lots in said “ tract before described already appropriated to public uses be “ truly reserved for those purposes.” So that the lands in question have been granted and secured for the use of the ministry, in effect not only by the proprietors of Shapleigh, but by the Commonwealth of Massachusetts. And taking the grant by the proprietors, and the confirmation by the legislature into view, in connection, the case seems in essence to be like that of Rice v. Osgood, and the grant to be like that to Brown upon condition to assign a certain part of the granted premises to the use of the ministry. And in that case Sewall C. J. has declared the fee to remain in the patentee Brown, till the contemplated parish and minister were in esse to take it.
In the argument the case of Pawlet v. Clark has been cited; and it deserves particular consideration, as it furnishes much useful learning on the subject of ministerial lands, and the principles of law applicable to property of that description. Some passages in the opinion of the Court delivered by Mr. Justice Story may at first view seem to militate against the opinions of the Supreme Judicial Court of Massachu[288]*288setts in the cases before cited ; but on a close examination we apprehend there will be found no essential difference. His words are—1“ From this brief history of the foundation of par- “ sonages and churches it is apparent that there could be no ‘‘ spiritual or other corporation capable of receiving livery of “ seizin of the endowment of a church.—There could be no par- “ son, for he could be inducted into office only as a parson of an “ existing Church, and the endowment must precede the estab- “ lishinent thereof. Nor is it even hinted that the ■ land was “ conveyed in trust; for at this early period trusts were an un' “ known refinement. The land therefore must have passed out “ of the donors, if at all, without a grantee, by way of public “ appropriation and dedication to pious uses. In this respect it “ would form an exception to the generality of the rule, that “ to make a grant valid there must be a person in esse capa- “ ble of taking it: and under such circumstances, until a par“son should be legally inducted to such new Church, the “ fee would remain in abeyance, or be like hmreditas jacens “ of the Roman code, in expectation of an heir.” He goes on afterwards to observe—“ For the reasons, then, which 44 have been given, a donation by the Crown for the use “ of a non-existing parish Church, may well take effect by the “ common law as a dedication to pious uses.-—And after such a “ donation it would not be competent for the Crown to resume it “ at its own will, or alienate the property without the same consent “ which is necessary for the alienation of other church-proper* “ ty.—Before such Church were duly erected and consecrated, “ the fee of the glebe would remain in abeyance, or, at least, “ beyond the powder of the Crown to alien, without the ordinary’s consent.” The argument of the learned Judge is intended to establish the point that a grant to a non-existing parish and minister is not void ; and that the King or the State, after having made such a grant, cannot legally resume the lands, and re-grant them, without consent. In supporting such a grant, in one place he observes that the fee is in abeyance, or at least is beyond the power of the Crown to alien without consent. Undoubtedly this is sound law; and if the effect of a judgment in this action in favour of the demandants would amount to a resumption of the grant, and an authority to convey the premises to any other per[289]*289son or corporation, or for any other uses, then the case of Pawlet v. Clark would be a direct authority in favour of the tenant. But no such authority is claimed in the present instance ; no intention of reclaiming the granted premises for the purpose of future disposal is avowed. A right is asserted only to recover possession and retain the custody of the premises, until the contemplated grantee shall be in esse to take. But if the demandants did claim to recover the premises with the express intention of alienating them to other uses, still such intention could not affect any legal rights ; because, should the de-mandants obtain judgment and enter into possession of the lands demanded, yet they would be obliged to surrender such possession when such a parish and minister shall appear to take as the grant contemplates; and such minister, declaring on his own seisin in right of such parish, could maintain an action against the present demandants, for the premises which they may recover in this action. The verdict in this action would not be evidence in a suit by the future minister.
The object in view when the grant was made will be attained, and its beneficial purposes accomplished, if the estate be delivered up by the grantors to the contemplated grantees, so soon as they shall come into existence, to take and improve it for the uses specified ; and from the very nature of such grants or dedications, it must be presumed that it was the intention of th,e grantors that the estate should remain in their custody and possession, until it should be wanted and improved for the beneficial purposes prescribed. Until such time shall arrive, who else has any authority to interfere with the property ? Who can feel the same disposition to preserve the estate from depre* dation or injury, as the grantor or donor? Who can have less temptation to impair the value of the lands thus granted, than the roan or the proprietors who have made the grant from commendable motives and for wise ends? And why should the Court be called upon to look with a favourable eye to the situation of the tenant, who has no title whatever to the lands demanded, and whose possession may essentially injure the property ? He can have no right to the custody of the lands, nor any claims except those of every wrong-doer.
[290]*290For the purposes, then, of giving full effect to the grant of the proprietors, and preserving the estate granted for the uses intended, we ought to consider the fee as remaining with the grantors ; and there seems as good reason for such construction as in the cases before cited. It is a fiction, if it may be so called, giving effect both to contract and intention, and calculated to produce beneficial effects ; whereas by considering the fee as entirely out of the grantors, and in abeyance, the estate will be left, during the interval between the grant, and the existence of a grantee to take, in a defenceless state, unguarded and exposed ; in the possesion and custody of no one, and liable to depredation by all.
But there is another ground on which the demandants are entitled to judgment. It is either admitted or proved beyond question that at the time of the grant, the general tract, composing what is now the town oí Shapleigh of which tract the demanded premises are a part, was the undisputed property of the proprietors of Shapleigh, the present demandants, whose seisin and possession of the lots in question continued uninterrupted till the entry and occupation by the tenant, which was about five years before the commencement of this suit; and, as before stated, the tenant has no title whatever. On these facts he cannot defend himself. For when the demandants had established their title and seisin within thirty years next before the date of the writ, it was not competent for the tenant to shew that the title was out of them by their conveyance, or by them transferred to any person or corporation, unless he claimed and derived title under such person or corporation by legal conveyance or operation of law. This is a common principle, well known and familiar. We will refer, on this point, to the single case of Wolcott v. Knight, 6 Mass. 418. The general issue is pleaded in this case as it was in that. Therefore, if the tenant, instead of labouring to shew that the demandants, by their grant of the demanded premises to pious uses, had placed the fee in abeyance for want of a proper grantee to talco, had been able to shew a grant to a proper person or corporation then in esse and capable of taking, still such proof would have been improper and unavailing, unless he could have legally connected himself with, and derived a title from, such person or corporation.
[291]*291The result of our investigation is, that the right to the possession and custody of the lands belongs to the grantors, till grantees, of the character designated in the grant, shall come into existence, who will then have a right to enter upon and hold the estate. Accordingly the present action is maintainable and by the terms of the agreement of the parties, there must be
Judgment on the verdict,