Society for Propagating the Gospel v. Young

2 N.H. 310

• Court: Superior Court of New Hampshire
• Decided: November 15, 1820
• Status: Published

Opinion

Woodbury, J.

Where a private corporation is plaintiff, it seems to be well settled, that even under the general issue the defendant may require proof of the incorporation. Lord. Ray. 1535.—8 John. 378.—14 ditto 245.—1 John. Ca. 132.—10 Mass. Rep. 91.

*

The proof, which was here offered of that fact, was an official copy of the charter; but being unable to authenticate the certificate,, the demandants proved its accuracy by a witness, who had compared it with the original; and hence as a sworn copy it was clearly competent.(l)

Had the act done under the power of attorney been an actual conveyance of real estate, the next objection, that the power was neither acknowledged nor recorded, might prevail. 7 D. & E. 207.—Co. Litt. 52, note.—Com. Di. “ Attorney’’ C. 5.—Chipman's Rep. 150. But the act done was merely a petition for a proprietary meeting ; and when the partition itself was made, the proprietors in person, for ought which appears, were ail present.

As to the affidavit to prove the posting of th< advertisements in Concord, d certainly was incompetent evidence. 4 D. & E. 290-Tyler R. 44, 49.

But independent of that, there was other testimony sufficient to warrant a jury in the presumption, that the meeting was duly convened. At the time of the trial, more tlnn twenty years had elapsed since the transaction, and during thn period also the lands had mostly been held and cultivated in r onibrmity to the partition. The intervening d< nth of perhaps the only person, who had direct knowledge of the* posting of the advertisements, is in this case a strong illustration of the propriety of the principle that the meeting should be presumed regular, after such a lapse of time and such an acquiescence in what was then done. 2 Maule & Selw. 558.—15 John. 89.-3 Mass. Rep. 399-14 ditto 30, 177, 147.

The only remaining question relates to the description of the demandants in the partition ; and it is a question of some difficulty. If they and their share are designated with sufficient certainty, by the expression “ Church of England Lots” — and by the subsequent specification of the lots, then they ought to recover; but otherwise, the partition as to them is void, and they being entitled to only one seventieth in common (and one seventieth of these premises being disclaimed,) the tenants ought to recover.

In this inquiry it is important to bear in mind, that the de-mandants were without dispute original proprietors of one seventieth part of the town, and that the object of the partition was not to transfer land to strangers, but oniy to divide it among those already known and interested in the original grant. Jn deeds the utmost certainty now required concerning the names of the parties is,that “ there, be sufficient shewn to ascertain the grantor and grantee and to distinguish them from all others.” Bac. Ab. “ Grant” 6.—Perk. sec. 36, 42.—Co. Litt. 3.— Cro. Ja. 518.-Sir. 316.—10 Mass. Rep. 20.

“ ft is, also, the office of judges to take and expound the “ words; which the common people use to express their meaning, according to their intents, and not according to the w very definition.” 6 Coke 65, Sir Mayle Finch's case. It is. also, well settled, that a grantee, if known by two names, take under either. 10 Coke 126.—1 Phil. Ev. 411, 416.—3 Maule & Selw. 250, 538.—2 East C. L. 967.—12 John. 77.

(1) 10 Coke 125.—11 Coke.

Mamen disci tur a noscendo, quia notitiam facit. 6 Coke 63.

The first, circumstance to show, that the demandants were intended by the “ Church of England,” is that being proprietors, and the partition having been designed of all thi' proprietors- — there is no other name in the list of the grantees, which is so appropriate as this to the demandants.

The second circumstance is, that this name cannot apply to any of the other proprietors without assigning to them a double share in the partition. A third circumstance is, that if this name does not apply to them, they have no share whatever in the partition, although original proprietors, and although the proceedings purport to set off a share to each original proprietor.(l)

Another circumstance is, that in different parts of the state, the lots, that belong to the demandants, are sometimes called “ Church of England lots.” The first and present members of the society have professed the tenets of that church ; the funds of the society are employed to propagate those tenets ; the grant of a right in this township was to aid them in the same cause; and hence it would be natural to designate the lots, as “Church of England lots.”

The last and a strong circumstance ah inconvenient is, that unless the demandants were thus designated, the whole partition as respects them is void, and the occupant of every lot in town will be subjected to the hazard of a prosecution lor the undivided seventieth of if, owned by the demandants.

We are inclined to think, however, that this is a case, where the description of the party, though not repugnant or altogether uncertain, is still somewhat incomplete; and consequently, to take the opinion of the jury, whether the de-mandants were intended by the “Church of England” as used in fhe partition, the verdict, (having been returned on the suggestion of the court) may be set aside, if the tenant desires it. 2 John Gases 267. If not desired,

Judgment on the verdict.

19 John. 303.