delivered the opinion of the Court as follows.
It is first objected in this action that the grant of the lot of land from the proprietors of the Kennebec purchase July 9, 1777 having been made to the town of Winthrop in trust for the use of the ministry, the legislature could not, without violating the rights of that town, permit the town of Readfield to enjoy a portion of it, by the act oí March 11, 1791 incorporating the latter town, which before constituted a part of Winthrop.
It is generally true that upon the division of towns, the rights, duties and obligations appertaining to, and imposed upon, the. whole town prior to its division, remain to, and devolve upon the ancient town ; and the new town can neither claim the one, nor be called upon to perform the other, unless it be otherwise provided in the act erecting the new town. But as it is perfectly equitable that upon such division, each town should share in the property which before was held by all the inhabitants of the territory divided, and that there should be a división also of the duties and obligations to which they had been jointly liable, a provision to this effect is not unfrequently inserted in the acts by which towns are divided, usually originating in compact between the parties concerned. This am-thority being founded in justice, and having been long acquiesced in by the defendants, must, so far as it has a bearing upon the present action, be considered as rightfully exercised in the act incorporating the town of Readfield. How far indeed, by virtue of that act, this specific property could be considered as forming a part of that which vras directed to be divided might admit of some doubt, were it not that by the subsequent resolve passed at the instance of both the old and the new town, the right of Readfield to a portion of this land is expressly recognized.
It is next made a question, whether it was competent for thp *215legislature to authorize the sale of this lot of land by their resolve passed March 1, 1799, upon the petition of the towns of Winthrop and RcadfieU. By that resolve the respective treasurers of the said towns of Winthrop and Readfidd for the time being were jointly empowered to sell the aforesaid lot of land, and to give and execute a good and lawful deed or deeds of the same, in behalf of their respective towns.
At the time of the passing of the resolve there being no settled minister in Winthrop, who might by law be seized of the fee of the land in right of the town, the fee remained in abeyance, and the Care, custody and profits belonged of right to the town. 2 Mass. 500. Had there been a settled minister, he might have aliened in fee that portion of the land which appertained to Winthrop, with the assent of the town, then having parochial rights and duties. But there being none in Winthrop or in Rtadfidd, whose concurrence could be obtained, and it being apprehended that the beneficial purposes of the grant might be more perfectly accomplished by converting the land into money, with a view to appropriate the income to the use of the ministry, these towns applied to the legislature for authority to Sell and convey the land for the attainment of this object. Upon their petition the resolve was passed ; the treasurers of the respective towns were jointly empowered to sell and convey, and the said towns were “ further authorized and required to loan their respective proportions of the monies arising from such sale, and apply the interest thereof to the use of the ministry.” As this was merely a modification of the fund, and not a diversion of it from its original object; as it was put into a condition to afford an income, it not appearing before to have been productive, it was probably presumed that no fair objection to this arrangement could be urged by any future minister. The legislature have frequently interposed their authority in the same manner upon similar applications; and it may well be doubted whether their constitutional power to do so can now be questioned. But however this may be, we are well satisfied that it is not competent for the defendants, upon whose petition the resolve passed, and who have assumed to act in pursuance of its provisions, to urge this objection.
It has been further contended that the treasurers of tin-*216towns of Winthrop and Readfidd have not effectually and legally conveyed; not having acted in the name of their respective towns. But their authority is derived not from their towns but from the resolve constituting them agents for this purpose, and is in our apprehension sufficiently pursued. Besides, the defendants have availed themselves of the monies produced by the sales, the grantees have been in possession many years under them, and they cannot at this time be permitted, in their defence, to question the validity of these proceedings.
We are now to ascertain wrho were constituted trustees of this fund, if it was rightfully created. And here it may be remarked that numerous instances might be adduced in which trustees of school and ministerial funds have been constituted by legislative authority. This has usually been done by creating a corporation for this purpose, consisting of a board of trustees named in the act, the members being authorized to perpetuate their existence by supplying vacancies among their number by election, as they may happen to arise, in the instance before us, it is sufficiently apparent that it was the intention of the legislature, by their resolve of March 1, 1799, to constitute the towns of Winthrop and Readfidd, respectively, trustees of their several portions of this fund. And from the nature of the fund, and the object to which it was devoted, there can be no doubt that the trust was reposed in them iu their parochial capacity. So long as the town of Winthrop had by law duties to perform in this capacity, they rightfully exercised this trust, which, was intended to aid them in the performance of these duties. But when a portion of a town is erected into a separate parish, the parochial character of the town as such ceases. By the statute of Massachusetts of 1786 ch. 10. sec. 5. it is provided, “ That in all such towns or districts, where “ one or more parishes or precincts shall be regularly set off “ from such towns or districts, the remaining part of such town “ or district is deemed, declared and constituted an entire, per- “ feet and distinct parish or precinct, and shall be considered as “ the principal or first parish or precinct.” And it has been decided that a poll parish, or a parish composed of individuals living in different parts of a town, without being described by geographical boundaries, is within the meaning of the statute., *217and when incorporated is considered as being “ set off from the town.” 7 Mass. 441. 445. 8 Mass. 96. By the act therefore of the 26 February, 1811, incorporating a poll parish in Winthrop, the remaining part of the town became the first parish, and the town as such had no longer any parochial duties to perform. To these duties the first parish succeeded; and it also became entitled by law to all the rights and privileges, which appertained to the town in its parochial capacity. 7 Mass. 445. 10 Mass. 93. The town could have no further use for a ministerial fund; and it would be a gross misapplication of these monies to permit them to be appropriated to other purposes. The first parish in Winthrop became therefore the trustees of the fund under the resolve of March 1, 1799, arising from the sale of the land thereby authorized, and to them it ought of right to have been transferred upon the creation of the poll parish.
But it is contended that if the rights of the parties are thus to be recognized and established, the plaintiffs have misconceived their remedy, which should have been, after demand, trover for the notes which were taken upon the loan of the money, and which have been renewed from year to year ; adding the accruing interest to the principal. These notes however having been made payable to the treasurer of the defendants for many years after they had ceased to have any rightful control over the funds, and being thus by them claimed and assumed, they must be considered as holding the money to the use of the plaintiffs ; and this objection cannot in our opinion be sustained.
We are next to consider whether the defendants are entitled to any deduction by way of offset for monies by them paid for the support of the minister from 1807 to 1812 inclusive. So long as the defendants were under obligation to support the minister, they had an unquestionable right to have appropriated the interest of the fund to that object, according to its original destination. But if they deemed it more provident to suffer the fund to accumulate, with a view to the enjoyment of a larger income from it at a future day, and provided other means for the support of their minister to his satisfaction, they ought not now to be permitted to appropriate to *218their own use any portion of the fund thus accumulated, in derogation of the interests of those who have succeeded them in the capacity, in which they then acted. While they continued rightfully trustees of the fund, they might have appropriated the interest to the support of the minister ; but having no longer any right to act in that character, it is too late for them to claim the appropriation.
The defendants further contend that they are answerable, if at all, to the minister settled in 1807, in whom the fee of the land would have vested ire right of his town or parish, and not to the plaintiffs.
If the resolve of March T, 1799 be invalid as against the minister, he is entitled not to the enjoyment of the money, but of the land. If it be valid, We have seen that by its provisions the town in their parochial capacity, and the plaintiffs by succession, and not the minister, are constituted trustees of the fund arising from the sale. This objection therefore cannot prevail.
It remains to determine the effect of the demand made by the minister in November 1817 upon the agent of the town of Winthrop, for the interest of the fund, from the time of his settlement in 1807 to the time of the demand, which appears in the case reserved. This demand is certainly strong evidence of a disposition on his part to acquiesce in the validity of the sale under the resolve, if in fact it was ever competent for him to' impeach it. By his acceptance of the terms of settlement voted and proposed by the town of Winthrop in November 1806' which appears in tlie case, he became entitled to the salary therein stipulated. lie could not, by any fair construction, be permitted to claim and enjoy the interest of the fund in question, in addition to the salary thus fixed by the agreement of the parties. Upon the plaintiffs by law has devolved the obligation to pay to him the stipulated salary, and to them belongs the accruing interest of the fund, which was designed to aid them in the fulfilment of this duty. The interposition of this demand therefore ore the part of the minister cannot have the effect to impair the right of the plaintiffs to recover in this action.
It is to be regretted that the resolve of 1799 so often referred *219to, had not been more explicit in its provisions; but we are satisfied that upon a fair application of the principles of law to the facts in this case, the plaintiffs have entitled themselves to
Judgment cm the verdict.
Note. The Chief Justice, having formerly been of counsel with the plaintiffs, gave no opinion in this cause.