Second Congregational Society in North Bridgewater versus Henry Waring et al., 24 Pick. 304

Putnam J. delivered the opinion of the Court. We are all satisfied, that the deed of the locus in quo from Packard to Hayward and others, operated to convey the premises to them for the use of the proprietors therein named, and of each and every lawful owner aud proprietor of a pew or pews in the meetinghouse to be built and rebuilt on» said lot for ever. It is no valid objection, that the use was shifting. The grantees who were capable to take, did take upon the execution of the deed to them, and the use would legally shift to those who should thereafterwards become pew-holders.

Mutton’s case, Moor, 96, pl. 240 : where A. makes a feoffment to B., to the use of B. and of his wife that shall be, and B. afterwards marries, there the use vested in B. at first, but upon the marriage shifted to himself and his wife. It is no valid objection, that the limitation of the use was to depend upon the contingency, that the cestui que use should become a pew-holder. When that event happened the use shifted to him and others who held the estate before; and those who so held pews were tenants in common. Sanders on Uses, 131.

The case finds that the grantees named in the deed were tírganized as proprietors, held meetings, chose officers, had a treasurer, and claimed the lot as proprietors. Those proceedings .were warranted by St. 1783, c. 39 ; and thereby the proprietors became a corporate body and authorized to settle, manage and improve their common lands, according to the provisions of that statute.

And they were, by a true construction of that statute, authorized to sue and defend in their corporate capacity, in actions which should be brought by or against them, and generally to manage for their common good, by their officers and committees duly appointed. After the proprietors became so organized, and so long as the corporation continued, it was not competent for the indi vidual proprietors to maintain actions of trespass in their own name, nor in any way to obstruct the regular proceedings of the corporation as to the management or improvement of the common property.

An individual might sell and convey his share in the proprietary or corporation, and his grantee might become a member, upon the same principles as a stockholder of a bank or turnpike might do in respect to shares in such corporations. On the passing of the statute of 1825, c. 43, twenty-one persons, who are named in the deed from Packard, were, with their families and estates, and with others who should thereafter associate with them, incorporated as a religious society. The title to the land did not vest in the religious society," for they were incorporated for certain other and distinct purposes.

So it was held in Leffingwell v. Elliot, 8 Pick. 457, that an incorporation for a particular intent, for example, for manufacturing purposes, does not vest in the corporation the lands owned by the corporators as tenants in common. They could carry on their business of manufacturing, without altering the tenure of their estate. It was the object to give corporate powers, to the end that the corporators might more conveniently do their work.

But in the case of the creation or formation of a corporation, pursuant to the statute of 1783, by the owners of land held in common, the land is the subject and the whole subject matter of their organization. The individu- . . . , .... a l members or proprietors give up to the corporation, rights which they might otherwise have exercised. It is the corporation, by their legal officers, who are to manage the common property ; and it is not in the power of a minority of the individual proprietors to resist the corporate will.

If the corporation determine that the property shall be occupied for the common good, in a particular way, an individual or all the individuals who are in the minority, are not therefore remitted to their rights as they existed before the organization, but he and they are bound to submit to the doings of the majority. From the facts and papers to which we are referred, we must presume that the corporation formed by the grantees do permit and have permitted the plaintiffs, the incorporated religious society, to occupy the land for the purposes originally intended.

The case finds that the plaintiffs worshipped in the meetinghouse erected on the premises, and that the lot was made use of by their society and persons coming to worship there, by passing over it with their carriages and horses, and tying their horses in all parts of it. The legal title was vested in the corporation which the grantees formed. But they held the estate as trustees for the religious society.

Upon the dissolution of the corporation, so formed, the title of the estate remaining in them would, by the operation of law, revest in the proprietors, but they would hold as trustees for the religious society. We must presume from the facts found, that the corporation formed by the grantees of the land, are willing and desirous that it should be managed or improved in the manner in which the incorporated religious society do improve it, for purposes connected with public worship.

But the defendants contend, that they, as individual proprietors, may lawfully obstruct the corporate will; and that they, individually, may take and appropriate a part of the land for the accommodation of a caravan of wild beasts. But we are all satisfied that the defendants cannot maintain this defence. It is inconsistent with the rights of the pew-holders, to whose use it was conveyed to the grantees ; and it is inconsistent with the power and authority which the grantees have delegated to the corporation which they formed.

And although the legal title is not in the incorporated religious society, yet they are to be considered as the cestui que trusts; they are in possession by the consent of the corporation formed by the tenants in common ; and being so possessed, they may maintain trespass against the defendants, who set up their individual claim against the will of the corporation formed to manage the property for the common good, according to the original intent of the associated grantees.

It is the opinion of the whole Court, that the plaintiffs are entitled to recover in this action; that the defendants should be defaulted ; and that the damages be assessed in the sum of five dollars, according to the agreement of the parties.