*598The opinion of the court was delivered by
Bennett, J.We think the defendants can not succeed in their defence. It seems that in 1836, an association was formed in Randolph, under the act of 1797, for the purpose of building a meeting house, and that Lebbeus Edgerton, the intestate, was one of the association. The defence rests upon the ground of a sale of the pew for the non-payment of an assessment or tax upon it, and the legality of the sale is involved in the defence.
On the 12th of April, 1853, the association voted to tax the owners of the several pews, to defray the expense of certain repairs of the house, after applying such subscriptions as might be obtained, and in December of the same year, they passed a further vote to raise money to pay the debts of the association, and make further repairs of the house, and this tax was to be at the disposal of the prudential committee. The defendants must justify the sale under one of these votes, if at all; but we think they can not succeed with their justification.
There is no power given to make a sale, or a forfeiture of the shares or rights of the pew holders, for the non-payment of assessments, but what emanates from the articles of association.
The statute* simply confers upon the association the power to provide for such sale or forfeiture, and the only article in their constitution, bearing upon this subject, is the 11th.
That article provides that the proprietors may, at a meeting called for that purpose, tax themselves to raise money to repair their house when necessary; but to pass such a vote requires a two-thirds vote of all the proprietors present. We apprehend this article in the constitution only contemplated a tax personally upon the pew holders. If its object had been to give a power to assess the pews, they would doubtless have provided a mode for selling or forfeiting them, for the non-payment of assessments. The statute expressly gives to the association power to provide for such an event. The vote of April 12th, 1853, was to tax the owners of the pews, and not to make an assessment upon the pews themselves, while that of December, of the same year, was simply a vote to raise money, not to exceed one hundred and seventy-five dollars, to pay the debts of the society, and make further repairs of the house.
*599■ This vote does not indicate the manner in which the money is to be raised, and neither of the votes appeal’s to have been passed by a two-thirds vote, and that fact we can not assume.
No basis is given in any of the proceedings, for making an assessment on the pews, and none for enforcing a payment by a sale or forfeiture of them.
No question seems to have been made in the county court as to the plaintiff’s right, as administrator, to maintain this action, and though it would seem as if he was the only person who could have the right, yet, we do not pass upon this question. We are well satisfied that the justification set up on trial in the county court, was not made, and that there was nothing in the case to justify the sale and the subsequent proceedings, and that there was error in the county court in sustaining them.
Judgment reversed and cause remanded.
Comp. Stat. p. 500, sec. 8, and p. 501, sec. 12.