We do not think the learned judge below erred in giving a binding instruction. He was asked to do so by both parties. Moreover, the case was properly withdrawn from the jury. The school district, plaintiff, had not proved any title to the property in dispute. The use tbat bad been made of it was permissive merely. Tlie one acre of ground was conveyed by Henry Fislier on November 4, 1822, in consideration of twenty dollars, to John Fisher et ah, “ trustees of union meeting and scbool bouse, and to tbeir successors forever, in trust, nevertheless, to and for the use, benefit, and behoof of the said meeting and scbool house.” The school district was not named in the deed as a beneficiary, nor was there evidence aliunde to sbow that it was intended as a beneficiary. Indeed, at that time there was no such school district, nor for many years afterward. Sucb use as the district made of the schoolhouse was, as before observed, permissive merely. So far from having any title to any portion of this one acre, the scbool district applied to the trustees in 1859, and again in 1871, to give them a title, and in each instance was refused.
Judgment affirmed.