The opinion of the court was delivered by
Royce, J.It is only necessary to consider the first covenant declared on. In this the defendant covenants — “that he is well seised of an indefensable estate in fee simple.” The terms of this covenant necessarily import that he had an absolute estate in fee; and to make good his defence, he was therefore required to establish-such a title in himself. — Gorfield vs. Williams, 2 Vt. R. 327.— Catlin vs. Hurlburt,3 Vt. R. 403. He was the first minister of the Gospel ever permanently settled in Concrd, and no objection is made to the validity of his settlement. The proceedings of the inhabitants of the town sufficiently indicate their intention, that he should receive the right of land in question as an absolute estate in fee. There was indeed a stipulation on his part to re-convey a portion of it in a certain event, but that has no effect upon this case. The whole question must therefore turn on the manner in which this right is granted or reserved in the Town Charter. If it could vest absolutely in the defendant on his being settled, it certainly did so, and his covenant is satisfied: and if it could not so vest, the covenant was at once broken.
There is a diversity in these grants or reservations. In some charters the right is simply reserve d for the first settled minister in the town. In others it is reserved for the first settled minister, to be disposed of for that purpose as the inhabitants of the town shall direct. Thus far the land is evidently destined, upon a legal and sufficient settlement of a minister, to vest absolutely in such minister as private property. And whether in each class of reserva*499tions alike, or only in the latter class, it is still requisite that the inhabitants of the town, in their corporate capacity, should in any sense become parties to the settlement, we have no occasion to de-cidc. — See Sheldon vs. Goodsel, 1 Aik. 225. — Dow vs. Hinesburgh and Weed, 2 Aik. 18.— Charleston vs. Allen, 6 Vt. R. 633. The terms of the charter in this instance are different [still. The right in question is “ to be and remain for the purpose of settlement of a minister and ministers of the gospel in said town forever.” And it is provided that this right, as likewise those reserved for the support of common schools, and of social worship, “together with their improvements, rights, rents, profits, dues and interests, shall remain unalienably appropriated to the uses and purposes for which they are respectively assigned, and be under the charge, direction, and disposal of the inhabitants of said township forever.” This reservation doss not purport to be for the settlement of one minister only, but of a minister and ministers, which would include a succession of settled ministers. And that this succession was intended is quite evident, from the térms of-perpetuity repeatedly applied to the use, from the perpetual charge and control conferred upon the town, and from the restraint of alienation which is stamped upon the property. The terms employed to direct and secure the application ot this property to the purposes expressed,¡are applied with the like view to two other rights; and these were never understood to be temporary reservations, or capable of being diverted from the objects designated. In short, the language of the charter in reference to this right seems to forbid the supposition, that the estate was to become absolute in the minister settled.
In this view of the case, the members of the court now present are well agreed. But as the court, consisting in part of other members, differed in opinion on a former argument, and as the case of Williams (the present plaintiff) vs. Hardy and Barker, determined in A. D. 1821, may have involved a contrary decision, some further attention to the subject is required. The record of the case referred to, shows it to have been an action of trespass,In which the plaintiff recovered for trespasses committed on the land in question. It is to be inferred that he had no actual possession of the land, but relied on constructive possession arising from title; and it appears that he made title through the deed of this defendant. The charter of Concord and the defendant’s settlement were brought into consideration. The question now discussed might therefore have been determined in that case. But the de-*500cisión may as probably have proceeded on a narrower ground, considering the defendant (who then lived in Concord under his settlement) entitled to the possession and enjoyment of the land for the time being, and competent to pass that right by his deed to the plaintiff. As the case has never been reported, and the grounds of decision are consequently unknown, it is not decisive of the whole question now presented. A case is also cited for the defendant from the 2 N. H. R. 510, and another from the 4 N. H. R. 20, showing that in that state the rights reserved by charter for the support of the ministry, afid for the support of schools, are regarded simply as appropriations in aid of the respective towns, and subject to their unqualified control and disposition. It was therefore held that those lands might be sold, and converted into other funds, at the discretion of the town. This is directly in conflict with the doctrine uniformly supported and enforced in this state.— Bush vs. Whitney, 1 Chip. R. 369. — Lampson and Barnum vs. New-Haven, 2 Vt. R. 14. The uses of such reservations are considered as unalterably fixed by the charter, though subject to legislative regulation as to the manner of their enjoyment. And it was adjudged in the case last cited, that the rents and profits to accrue ata distant future period could not be received in advance; since this might defeat the intended benefit to the future generations who may inhabit the town. In our view, the terms of this charter have rendered all these principles conclusively applicable to the present case. ' - 1
But it is urged, that the course pursued in this instance has been extensively practiced in the state, and ought on principles of policy to be sanctioned. We are not aware of the extent of the practice, but have reason to believe it has not been uniform. The legal construction should therefore prevail. |
Judgment of county court affirmed.