delivered the opinion of the Court. The only question, which we are required to consider, is, whether the plaintiffs had such a possession of the locus in quo, as will enable them to maintain this action.
By the decision in Starr v. Jackson, 11 Mass. R. 519, a decision which was well considered, and has long been acquiesced in, it was settled, that a lessor at will might maintain trespass quare clausum fregit.
The locus in quo was, at the time of the trespass, in the actual occupation of a third person in pursuance of a paroi contract with the selectmen of the town of Hingham. Did this constitute a tenancy at will, or for a term certain ? If the latter, this form of action cannot be sustained; if the former, it may.
By St. 1783, c. 37, § 1, all leases by paroi shall have the force and effect of leases at will only.
The vote of the town authorized the selectmen “ to let the town wharf as heretofore.” This was necessarily evidenced by writing, and gave ample power to the selectmen to make a valid lease. Towns, in this State, may make grants of real estate by corporate votes ; and a fortiori, if they can grant the fee, they can pass any subordinate interest in the estate. But this vote did not purport to pass any interest in the locus in quo, and cannot by any reasonable construction be construed to amount to a lease. No consideration is fixed, and no grantee or lessee named. No person therefore, by the force of this act of the town, without an execution of the authority contained in it, could pretend to claim any interest in the estate.
If the agents executed the power vested in them, their act became the act of the principal. And unless a paroi lease made by attorney has greater force and effect than if made by the lessor himself, it is very clear, that the paroi contract of the selectmen created at most a tenancy at will. This cannot be pretended. It is within the words, as well as the spirit of the statute.
Defendant defaulted.