dissenting. — This action of Assumpsit upon a policy of insurance is defended upon the following alleged grounds: — 1. That, the plaintiffs had no insurable interest, estate or title, in and to the school-house which was the subject of the policy: — 2. That, previous to a renewal of the policy under which the plaintiffs claim, in pursuance of a vote of the district, a committee thereof had made a bill of sale of the school-house and delivered it with the building to the purchasers, who had removed the building on to an adjoining lot and caused it to be insured in their own names, and that they had possession of it as an unoccupied building at the time of the lire; that, by the transfer and removal, the risk rvas changed, and the same not having been made known to the' company, they cannot be held liable under the renewal for the loss.
*520The case has once before been before the Court, and a verdict for the plaintiffs was set aside and a new trial granted, because the instructions of the presiding Judge, as reported in the exceptions, might have been construed by the jury as requiring them to find that a change of risk, to relieve the defendants from liability, must have been caused by some act of the district.
A second trial has resulted in a similar verdict, and the case has come up on exceptions to the rulings and instructions of the presiding Judge, and also upon a motion to set aside the verdict as contrary to law and the evidence in the case.
Besides the general verdict for the plaintiffs, the jury found specially, in reply to separate interrogatories propounded to them in writing, — that it was not necessary that the district should sell and dispose of the school-house at the time of the sale to Bickford and Houdlette; that, in the sale and purchase of the school-house referred to, there was fraud and collusion between the purchasers and the committee who assumed to act for the district; and that the risk was not changed after the original representation, and at the time of application for renewal, either within itself or by the surrounding or adjacent buildings.
In support of the exceptions, the first ground taken by the counsel for defendants is, that the instructions were erroneous respecting the right of the district to sell the house. Upon this point the instructions were, that the right was qualified or limited by adding the words "if necessary” to the clause of the statute conferring the power, — that a reasonable and liberal construction must be given to these words of limitation, — "they do not require that a case be made out of absolute necessity, or that the house should have become utterly ruinous.” By way of illustration of the necessity referred to and which might authorize a sale by a district acting in good faith and intending to advance the cause of education, various cases were put, among which, inconvenient location was one. The jury were further in*521structed that, "of the necessity contemplated by the statute, the district must in the first instance judge and determine, and that decision must stand and be binding unless it is made to appear that no such necessity existed, — that it must appear that the sale was in fact a fraud upon the law, an arbitrary act of power manifestly intended not to be in furtherance of the cause of education, but for an ulterior purpose of hindering or obstructing the maintenance of schools by depriving the district of any suitable place for its schools or other like purpose, by which the proper education of the children of the district would be prevented or embarrassed without any countervailing good, — it must be a case of bad faith, abuse of the power given, not a mere mistake of judgment, where it was obvious that an honest difference of opinion existed as to what was best, having fairly in view the interests of education,” and the presiding Judge left it with the jury to determine, under these instructions, whether the sale was valid within the statute which authorized it "if necessary.”
It is obvious that the defendants could have no cause to complain of instructions thus carefully guarded, unless it was erroneous to allow the jury to pass upon the action of the district at all. Accordingly it is contended that the judgment of the district must be conclusive, ard that the Legislature did not intend to deprive school districts of the right to decide finally respecting the necessity of sales of their property, or to introduce the uncertainty of title as to any property once held by a school district, which must result from allowing their decisions to be revised, "especially by so unsuitable a tribunal as a petit jury.”
From among thq voters in the various towns, who are also the voters in the school districts, an official board in each town is required by law to prepare a list of such persons of good moral character as they shall judge best qualified to serve as jurors.
These lists are subjected to the approval of the voters in *522the several towns, who may strike out such names as they think proper, in open town meeting, by a majority of the legal voters present, but not add any. From these lists traverse jurors are indifferently drawn. They are purged of all partiality and prejudice and sworn to decide the issues committed to them according to the law and the evidence. The unanimous concurrence of twelve men, thus selected, is necessary to a verdict. Not claiming infallibility for their decisions, I am still of the opinion, that the determination of questions of fact may, with tolerable safety, be entrusted to such a tribunal, under proper instructions from the Court as to matters of law, especially when a party who considers himself aggrieved by their doings may have them revised by the highest tribunal known to the laws of the State, and reversed if found unsupported by the testimony in the case, or manifestly founded on prejudice or misconception. Issues of life and death are sometimes in their hands. They can hardly be considered "an unsuitable tribunal” to determine, under the law, upon the validity of the sale of a schoolhouse where it comes incidentally in question. They are composed of the more intelligent portion of the class to which the voters in the school district belong, and they are called to pass upon the same question without any 'pecuniary or partisan interest in the result.
■ But it is argued that, because a ready method of revising the doings of a school district is provided in certain cases, by an appeal from a majority of a district to certain tribunals, which are authorized to decide finally upon the matters in controversy, therefore, where no such tribunal is provided by statute and no such ready appeal given, the doings of the majority must be deemed conclusive. Are they not then subject to revision and correction by some power, when it is evident that they were unauthorized by law ? It does not follow that, because the Legislature may have provided for a speedy decision, by a statute tribunal having final jurisdiction in certain cases, where prompt and decisive action is essential to the prosecution of the object for which these *523corporations have an existence, therefore the minority of a district are left at the mercy of an irresponsible majority in other matters.
Questions as to the amount of money to be raised for a purpose for which a district has legal power to raise it,— as to the location or proposed removal of a school-house,— as to a plan for the erection or reconstruction of a schoolhouse, must, when practicable, be speedily decided, and not await the slow progress of litigation in the courts, and the Legislature have provided that they may be submitted to appropriate tribunals outside the district, whose decisions may ordinarily be expected to be impartial and satisfactory. But it can hardly bo conceded that the fiat of these tribunals, even, is irreversible, if found to be tainted with fraud and in gross and palpable violation of the duties, interests and objects for which the power was conferred. That a factious, penurious or vindictive opposition to the will of a majority acting in good faith, with a view to the furtherance of the objects for which the school district was created, can gain no encouragement from instructions such as were given in this case, is too plain to need elucidation or remark.
The validity of the sale is not made to depend upon the existence of an error in judgment as to the expediency of the proposed act, but upon that of a design to defeat the end for which alone the district was clothed with any power in the premises.
It is further argued that, inasmuch as the same statute limitation applies to sales by a school district of other property of which they may be possessed, the Legislature could not have intended that the purchaser’s right to articles of even trifling value should depend upon the verdict of a jury as to the necessity of the sale. The argument is not sound. The language of the statute is explicit. The words "if necessary,” are not tantamount to " if they think proper,” elsewhere used, but impose a clear and distinct limitation upon the power of salé, and the necessity must be determined by the same tribunal which is called to pass upon the *524validity of the sale. Purchasers in these, as in other cases, must take the risk of the rights of their vendors, and the buyer acquires no greater rights than the seller can legally convey. Various contingencies may demonstrate that a sale of any property by any corporation or individual is either void or voidable, as a jury may find the facts upon which its validity depends, but we do not look upon them as introducing any uncertainty of titles that can opei'ate as a serious check upon legitimate business.
Neither does the fact that other remedies exist for a minority whose rights may be invaded by the illegal acts of a majority of the district, at any meeting thereof, make any difference here. A question arose incidentally in this case as to the validity of an alleged sale. It was submitted to the only tribunal which was competent to pass upon the facts, under instructions quite sufficiently favorable to the defendants, and, if the evidence warranted the jury in finding, as they were required to do, that the attempted sale was an arbitrary act of power, manifestly intended not to be in furtherance of the cause of education, but for an ulterior purpose of hindering or obstructing the maintenance of schools, by depriving the district of any suitable place for its schools, or other like purpose, by which the proper education of the children of the district would be prevented or embarrassed, the defendants have no cause of complaint, for the attempted sale was simply void, — no title passed by it, — the district retained its insurable interest in the school-house, and the first ground taken in defence of the action fails. But the counsel argues that this is depriving the purchasers of their property by a judgment, in a suit to which they are not parties. By no means. If they are not parties nor privies to the suit they are not bound by the judgment.
Complaint is also made of the instructions up'on the question of fraud and collusion, between the committee who assumed to make the sale of the school-house and the purchasers, and a large portion of the ingenious and elaborate argument for the defendants is devoted to these matters. But *525it is plain that, if the attempted sale was unauthorized by law and void, because the necessity contemplated by the statute did not exist, any question whether or not, if the district could have made a sale otherwise legal, this sale was voidable by the district because of fraud and collusion between the purchasers and the agents of the district, and was in fact repudiated by the district, became entirely immaterial. Error in instructions upon this point, if there were any, could not have injured the defendants.
It is further objected that the special interrogatory propounded to the jury confined their inquiry as to the necessity, to the time of the sale to Bickford and Iloudletto. But the jury could not have failed to understand, seeing the nature of the matters they wore directed to consider in determining as to the necessity, that the time of the vote to sell was included in the phrase " at the time of the sale to Bickford and Houdlette.”
Again, it is urged that, because the policy declares the insurance to be void in case of any transfer or change of title, the defendants arc not liable. But here were neither. The acts of Lawrence and others, assuming to act for the district, being unauthorized by law, if the special findiñg of the jury that the sale was not necessary be sustained, were simply inoperative and void. What they did could have no more effect upon the title than as if one man were to undertake to transfer or change the title of another’s land by executing a deed in his name without any authority therefor.
Was the finding against law or evidence on the question of necessity ? School districts are invested with certain limited powers, to be exercised only with an eye to the advancement of the object for which such corporations arc created, the education of the youth in public schools, to which all shall have access. That object is dear to all who truly love our country and its institutions. No sordid or vindictive spirit can be permitted to interpose any unlawful impediment to its advancement. Honest but mistaken zeal may err as to the measures best calculated to promote it and wo *526can afford to wait till experience corrects tbe error. But acts which are manifestly designed to defeat the end for which the district was created and to embarrass the operations of the schools, by depriving them of suitable existing accommodations, without any apparent countervailing good, from which it might be inferred that the motive was right, even if the acts were ill advised, must be held to be " in fraud of the law,” and entirely beyond the scope of any authority conferred by it.
Here, two adjoining districts, large in territory, but having the bulk of their population at their contiguous extremities, had united under the Act of 1852, c. 243, (R. S. of 1857, c. 11, § 26,) and formed one district for the purpose of supporting a system of graded schools. They had recently erected, at an expense of §1500, a convenient schoolhouse, commodiously located for the district as a whole. There was no.other suitable place for the schools within the limits of the district. A committee, assuming to act for the district, negotiate a sale of this new building for about one-fourth of its cost. The only legitimate motive that is now suggested in argument, is, that a few families lived - at an inconvenient distance from the new school-house. That this was merely specious, is shown by the uncontradicted testimony that a part of the families who lived at the greatest distance were in favor of the new system, and that most of those opposed to it had no children. And the man who appears most active in bringing about the sale testifies that the object was to divide the district, that that was his object. The jury seem to be justified in finding that the movement for a sale had no legitimate object, but was hostile to the interests of education and designed to thwart the extension of the superior advantages of a system of graded schools to the children of the district, and that the attempted sale was therefore not necessary nor valid in the eye of the law.
The truth of the finding that " the risk was not changed either within itself or by the Surrounding or adjacent build*527ings,” between the time of the original representation and that of the application for renewal, is more questionable.
, The risk may be changed within itself by other matters besides a more mechanical or material alteration of the buildmg, although the context, "or by the surrounding or adjacent buildings,” would seem to favpr the other interpretation of the stipulation. But how far the existence of adverse claims to the property, not. known to the insurers, ought to be permitted to affect the right of the real owner to recover his insurance in case of loss, need not be discussed here. It may be that such claim, however unfounded, and the fact that the building was not regularly occupied, did enhance the risk. It may be that, had the question been submitted to the Court for determination, they would have come to a different conclusion from that to which the jury arrived. It was however a question for the jury, and two juries have found at different trials of the case, under careful instructions from the Court, that there was no material change of risk. The removal of the building was but a few feet on to an adjoining lot, not more exposed by reason of surrounding buildings than the previous location. There is uncontradicted testimony that the agent of the Insurance Company was informed, at the time of the application for renewal, that the building had been removed and that there was trouble in the district. Upon the whole, we are not satisfied that law and justice require that the case should be sent to a third trial on account of error on the part of the jury.
Kent, J., concurred.