The Society For the Propagation of the Gospel In Foreign Parts Plaintiffs v. the Town of Pawlet and Ozias Clarke
| Decision Date | 01 January 1830 |
| Citation | 4 Pet. 480,29 U.S. 480,7 L.Ed. 927 |
| Parties | THE SOCIETY FOR THE PROPAGATION OF THE GOSPEL IN FOREIGN PARTS PLAINTIFFS v. THE TOWN OF PAWLET AND OZIAS CLARKE |
| Court | U.S. Supreme Court |
THIS cause was cortified to this court from the circuit court of the United States for the district of Vermont; the judges of that court being opposed in opinion on certain questions of law which arose at the trial.
The action was an ejectment, brought to recover 'the first division lot laid out to the right of said society in Pawlet, containing fifty acres.'
The cause was tried at October term 1828; and after the testimony on both sides was closed the jury were discharged, upon the disagreement of the judges of the court, on the several points herein stated, arising upon the facts agreed in the case, and stated by the counsel for the parties. The facts agreed were,
On the 26th day of August 1761, George III., then king of Great Britain, by Benning Wentworth, Esq. governor of the then province of New Hampshire, made the grant or charter to the town of Pawlet aforesaid, particularly describing the boundaries thereof to the grantees, whose names are entered on said grant, their heirs and assigns for ever; to be divided to and among them, into sixty-eight shares. Among the grantees whose names are entered in the said charter, is 'one whole share for the Society for the Propagation of the Gospel in Foreign Parts.' A copy of the charter was filed among the proceedings.
And afterwards, on the 16th of April 1795, Ozias Clarke executed the counterpart of a lease to the selectmen of the town of Pawlet, for the time being, for and on behalf of said town, his heirs, executors, administrators and assigns, of the tract of land mentioned in the plaintiffs' declaration, described as follows, to wit: all that tract of land, situate, lying and being in Pawlet aforesaid, known and distinguished by being the first division fifty acre lot, laid out to the right known by the name of the Society, or Propagation Right, to have and to hold the demised premises, with the privileges and appurtenances thereto belonging, &c. from the 16th of April 1795, and onwards as long as trees grow and water runs;—his yielding and paying yearly, and at the end of every year, the sum of seven pounds, lawful money, &c. A copy of the lease was annexed, and made part of this case. And thereupon Ozias Clarke entered into the immediate possession and occupancy of the said lot of land, and has been ever since in the possession and occupancy of the same; and has paid the rent aforesaid to the town of Pawlet, yearly and every year since, at the rate of seven pounds, equal to twenty-three dollars and thirty-four cents, for each year; and the town of Pawlet have received the said sum, as rent, yearly, from Ozias Clarke, and have applied the same for the benefit of schools in the town of Pawlet. And Edward Clarke, the father of Ozias Clarke, went into the possession of the lot in the spring of the year 1780; it not appearing that he had purchased any title thereto, and so contined in the possession thereof till the defendant entered.
The case agreed contains extracts from the minutes of the society, stating the proceedings thereof at their meetings in London relative to the land in Vermont, granted by governor Wentworth to the society. The first meeting was held on the 16th of July 1762, and these minutes show the measures adopted by the society relative to the lands, from that period down to 1810.
The proceedings on the 16th of July 1762 and the 16th of March 1764, show an acceptance of the donation; and a resolution that agents be appointed to take charge of the patents and warrants for the land, and for such other purposes as the interests of the society may require.
At a meeting of the society held December 17, 1773, the society agreed, that it be recommended to the society to empower Mr Cossitt to see that justice be done to the society, in the allotment of glebes, &c. in New Hampshire.
The society resolved to agree that a letter of attorney be sent to the governor of New Hampshire, empowering Mr Cossitt to act in behalf of the society with regard to these lands, and leaving blanks for other persons whom the governor may think proper to insert.
On the 20th of May 1785, a report was made to the society relative to their lands, and the meeting resolved, that the secretary do write to some one or more members of the church of England in each of the states of America, in which the society has any property, to take all proper care in securing said property; and further to inform such persons, that it is the intention of the society to make over all such property to the use of the episcopal church in that country, in whatever manner and form, after communication with the several governments, shall appear to be most effectual for that purpose.
On the 16th of May 1794, an application was made to the society through the bishop of New York, by the episcopal convention of Vermont, requesting the society to convey, for the support of the episcopal church of that diocese, the land held by the society in Vermont, under grants from New Hampshire. The committee of the society made a report as follows:
The committee agreed in opinion, that the bishop of New York be assured of the society's readiness to concur in any measures which can forward the establishment of an episcopal church. But having considered that former applications have been made from the state of Vermont, differing in their intentions from the present, which were rejected by the society in May 1790; and at the same time Mr Parker of Boston, when he obtained a deed from the society for the conveyance of their lands in New Hampshire, had signified that he should not trouble them respecting Vermont, till he should know the operation of that deed; and having never since heard from Mr Parker on that subject, are of the opinion, that there is not sufficient ground for the society to execute the present deed.
At a meeting of the society on the 16th of November 1810, the secretary of the society was directed to obtain the fullest and most particular information respecting the nature and value of the rights of the society to the lands in Vermont, with the best means of recovering and rendering the same available.
In consequence of certain votes of the society, expressive of their intention to appropriate the avails of their lands in the state of Vermont for the use of the protestant episcopal church in that state, the convention of the church in that state made application to the society for the power of attorney: and the said society executed to the Right Rev. Alexander V. Griswold, bishop of the eastern diocese, and the other agents therein named, the power of attorney, dated December 5, 1816; a copy of which was annexed to the case.
The act of the legislature of Vermont, passed October 27, 1785, entitled an act for settling disputes respecting landed property; an act entitled an act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein, passed November 5, 1800; also, the several acts to keep the acts last aforesaid in force for later periods than those contained in said act; an act passed November 15, 1820, entitled an act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein; and all the statutes ever passed in Vermont, for the limitation of actions, and all the additions thereto, as found in the several statute books, including the act passed November 16, 1819, entitled an act repealing parts of certain acts therein mentioned; an act passed October 26, 1787, authorising the selectmen of the several towns to improve the glebe and society's lands, and an act in addition thereto, passed October 26, 1789; an act passed October 30, 1794, entitled an act directing the appropriation of the lands in the state, heretofore granted by the British government to the Society for the Propagation of the Gospel in Foreign Parts; and all other statutes of said state, that either party considers applicable to this case: are to be considered as a part of this case.
Upon the foregoing case, the opinions of the judges of the circuit court were opposed upon the following points:
1. Whether the plaintiffs have shown that they have any right to hold lands?
2. Whether the plaintiffs are barred by the three years' limitation in the act of the 27th of October 1785, or any other of the statutes of limitation?
3. Whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits; and if so, for what length of time?
The case was argued by Mr Webster, for the plaintiffs; and by Mr Doddridge, for the defendants. Mr Doddridge also presented the written argument of Mr J. C. Wright, for the defendants; as did Mr Webster, an argument for the plaintiffs, prepared by the counsel in the circuit court of Vermont.
For the plaintiffs it was argued: that it was not a point in issue, or on which the court divided in opinion, whether the plaintiffs were a corporation capable of suing in this form; that being admitted by the plea of the general issue. Cited 10 Mod. 207. 1 Bos. & Pul. 10. 10 Co. Rep. 122, 126. 1 Saund. Rep. 340, 342. Atlantic Insurance Company vs. Conard, 1 Peters's Rep. 395, 408, 560.
2. That the right to take and hold lands is incident to a corporation. Com. Dig. 258, F. 18,260, F. 18, 19. Co. Lit. 2 a. 2. b. Sid. 162. Co. Rep. 30-36. Sir William Jones's Rep. 168.
3. That the corporation existed at and prior to the date of the charter of Pawlet, 1761.
It being admitted by the pleadings, that the plaintiffs are a corporation, there is no presumption against its prior existence, at any period within the time whereof the memory of man runneth, &c. Its prior existence is matter of general...
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