
    Aaron Humphrey versus Timothy Whitney.
    i_,and given to a town for the use of “ the ministry,” may, with the leave of the legislature and the consent of ail parties interested, be appropriated to the support of several ministers settled over distinct portions of the inhabitants of the town; the original purpose of the grant being preserved by such a disposition of the pro perty.
    Thus, in 1741, the legislature granted to individuals a township of land, part of it to be reserved for the use of the ministry. In 1764, the grantees settled their first minister, who was of the congregational order, and who entered on the ministerial land and occupied it until 1797. In that year the legislature, in pursuance of a vote of the inhabitants of the town, including Christians not of the congregational order, passed a resolve, authorizing this land to be sold by the minister and selectmen, and the income of the proceeds to be applied annually for ever, in certain proportions, to the support of the ministers of the congregational society, and of a protestan! episcopal society then existing, but not incorporated until 1823. The land was sold and the income applied accordingly until 1824, when the members of the congregational society organized themselves as the first parish, and forbade any part of the income to be paid to the minister of the episcopal society. Held, that the resolve was not unconstitutional, and that such minister was entitled to recover his stipulated proportion.
    This case came before the Court upon an agreed statement of facts.
    On the 13th of January, 1741, the legislature granted to seventy-six petitioners a township, to be laid out in seventy-nine shares, one of which was to be for the first settled mm ister> one f°r the ministry, and one for the school, on certain conditions which were afterwards performed. The proprietors laid out the township in shares accordingly, built a meetinghouse, and in 1764 settled and ordained the Rev. Daniel Collins, who was of the congregational order, as their first minister. He entered upon the share appropriated for the ministry, and occupied it until the 18th of May, 1797, when it was sold in virtue of a resolve of the legislature of the 15th of February, 1797. The township was incorporated in 1765, by the name of Lanesborough.
    At a town meeting in May 1796, a vote was passed, all denominations of Christians that were present voting, tha* the town would petition the legislature that the ministry land might be sold, and the proceeds be kept as a fund for the benefit of the congregational society and the protestan! episcopal society in the town, the congregational to have four-fifths and the episcopal one-fifth of the income for the support of their several ministers and their successors for ever ; and that G. Wheeler and W. Hubbell (both members of the congregational society) should be a committee to present the petition. This committee accordingly presented a petition to the legislature in May 1796, which was continued to the next session to be held in February, 1797.
    At a town meeting held in September 1796, for the purpose. of ascertaining whether the town would not reconsider the former vote, a committee was appointed, consisting of three congregationalists, three episcopalians, and three baptists, who at a town meeting held in November following, reported, that Mr. Collins should receive out of the income of the money arising from the sale of the ministry land, 66 dollars, 67 cents annually, during his ministry, in addition to his salary, as a compensation for relinquishing the land, and that the same sum should remain to his successors of the congregational order forever ; and that of the remainder of the income Rfr. Collins and his successors should have two-thirds, and the Rev. Daniel Burhans, minister of the protestant episcopal church, and his successors. should have the other third. A vote was passed in conformity to this report.
    On the 15th of February, 1797, the legislature passed a resolve, authorizing Mr. Collins and the selectmen of the town for the time being, to sell the ministry land, and put the proceeds of the sale on interest, the income to be applied, under the direction of such persons as the inhabitants of the town might from time to time appoint for that purpose, in the manner contained in the vote last mentioned ; with a proviso, that it should be in the power of the legislature, on the application of any denomination of Christians having a settled minister in the town, thereafter to make a new appropriation of the income.
    Pursuant to this resolve the land was sold in March 1797 ; and notes were taken payable to the selectmen and their successors, and the income of the fund was applied, agreeably to the resolve, up to January 1824. In November 1797, the treasurer of the town was appointed trustee of the fund, and the notes were delivered in.to his hands, to be renewed as they became due. After this period the notes were taken, some in the name of the inhabitants of the town, and some in the name of the treasurer and his successors.
    On the 8th of June, 1814, upon an application made, without any authority from the town, by Mr. Collins, Mr. Purdee, minister of the protestant episcopal church, and the selectmen, two of whom were congregationalists and one an episcopalian, the legislature, without issuing any order of notice to all persons interested, passed a resolve, repealing the proviso before mentioned and confirming the appropriation of the fund and income as already established.
    In May 1818, Mr. Sheldon, a minister of the congregational order, was settled as a colleague pastor with Mr. Collins over the congregational church and society, and he has continued to be their minister ever since. Mr. Collins died in August 1822. In April 1820, the plaintiff was settled and duly licensed by the bishop as the protestant episcopal minister, and from that time to the present he has officiated as such. The protestant episcopal society was organized in 1767, and on the 3d of February, 1823, was incorporated by legislature.
    The congregational and episcopal societies made use of the corporate capacity of the town, and of the town officers, to raise and collect money for the salary of their ministers and for repairing and painting their meetinghouses, before 1797, occasionally, and uniformly afterwards until 1819, when the episcopal society raised money for these purposes by themselves ; but this society voted and acted upon all other parochial subjects, and raised money for all other parochial purposes, by their own votes and proceedings.
    In 1796, when the two votes were passed for obtaining leave to sell the ministry land, a majority of the voters were of the congregational'order. There was then no baptist society in the town, and but a few persons of that persuasion. These few were exempted from taxation for the support of public worship in the other religious societies.
    In December, 1824, the inhabitants of the town belonging to the congregational society organized themselves as a parish, pursuant to St. 1786, c. 10, and elected parish officers, viz. three assessors, a prudential committee, a cleric, a collector and a treasurer. The defendant, who was treasurer of the town and had in his possession the notes constituting the ministry fund, was chosen treasurer of the parish, and appointed trustee of the fund, and was directed to retain it in his hands for the use of the parish. In January 1825, the plaintiff demanded 90 dollars and 23 cents of the income, as granted to him by the resolve first mentioned, which the defendant refused to pay, and to recover which this suit was brought.
    If the Court should be of opinion, that in any form of action the plaintiff was entitled to recover, the defendant was to be defaulted; otherwise the plaintiff was to become nonsuit.
    
      Briggs for the plaintiff.
    An alienation of ministerial land by the parish with the consent of the minister, is valid. St 1785, c. 51, § 1 ; Brown v. Porter, 10 Mass. R. 99 , 
      Wesson v. Hunt, 2 Mass. R. 502; Brown v. Nye, 12 Mass. R. 288. The town in its parochial capacity and the minister have here joined in the sale. If it is objected that persons not congregationalists voted at the town meetings, the answer is, that most of the voters were congregationalists. No attempt was made by the town, nor by individuals, for twenty-six years, to resist these doings of the town and of the legislature, and this must be taken as conclusive evidence of an acquiescence in the arrangement. In addition to the concurrence of the town and congregational minister, we have the confirmation of their proceedings by the legislature ; which would cure all previous defects of form. Though the land may have once belonged to the first society, yet the Court will not uphold them in violating this contract, which has been fairly entered into, and which is in furtherance of the intention of the original grantors of the land.
    Besides, the original grant was for public purposes, and the town being a corporation for public purposes and under the control of the legislature, that body had a right, if not to take back the gift, at least to vary the mode of using it. Dartmouth College v. Woodward, 4 Wheat. 629, 659.
    
      E. H. Mills for the defendant.
    The ministerial land was not reserved for public purposes generally, but for the particular purpose designated, and the legislature had no power to alter that designation, any more than to control the tenure of land granted to an individual.
    By the organization of an episcopal society in Lanesborough, in 1767, the remaining inhabitants of the town constituted the first parish, having all the parochial rights and property previously belonging to the town. First Parish in Brunswick v. Dunning, 7 Mass. R. 447 ; Brown v. Porter, 10 Mass. R. 93 ; First Parish in Shapleigh v. Gilman, 13 Mass. R. 190 ; Baker v. Fales, 16 Mass. R. 488; Jewett v. Burroughs, 15 Mass. R. 467 ; Prov. St. 16 Geo. 2, c. 1. After that event the votes of the town as a parish would be merely void. The meetings in 1796, were not parish meetings but town meetings, as is manifest from the appointment of committees consisting in part of episcopalians and baptists ; and it does not appear that the voters of those sects did not contr°l the congregational society. Nothing passed by the sale, and the land might now be recovered back; the parish however do not.want the land, but they are entitled to the money paid for it. Harrison v. Bridgeton, 16 Mass. R. 16. Supposing it to be necessary that the episcopal society should be incorporated before the congregational society could become the first parish, then the legislature could not, in 1797, have given that society a part of the land ; and no more could they a part of the money ; neither can that society now claim part of the fund, for the owners of the land are entitled to the price. To the argument derived from the lapse of time the answer is, that the parish, until recently, have never done any act in relation to the fund, and even if some of the proceedings are to be considered as the acts of parish officers, they were a breach of duty and not binding on the parish ; and fur ther, neither the parish nor its officers had any power to appropriate this money to any other purpose than the support of religious worship in the first parish. Suppose that a ministerial fund had been created when the town was first settled, and that to the time of the incorporation of the episcopal society a Part °f the income had been paid over for their use, yet at the moment of incorporation the claim of that society must cease. Brown v. Porter, 10 Mass. R. 92. The votes of 1796 were passed under a mistaken apprehension of the rights and duties of the town or parish and do not bind the parish ; and the acts of the legislature which were intended to give them validity are of no effect. Ibid. 99. The episcopal society has not parted with any thing as a consideration for receiving a portion of the income of the fund.
    
      H Hubbard in reply.
    A town in its institution includes all the attributes of a parish, and there having been no legally incorporated society distinct from the town of Lanes-borough at the time when the votes in question were passed, all persons qualified to vote on the municipal affairs of the town were entitled to vote on its parochial affairs. Turner v. Second Precinct in Brookfield, 7 Mass. R. 60. The inhabitants assembled in legal town meeting, and agreed that there should be a sale of the ministry land and a division if the income of the proceeds between the protestant ministers in the town. The agreement was made in concurrence with the minister of the town or first parish, and there should seem to be no valid objection to carrying it into effect. The fallacy on the part of the defendant consists in supposing that there is a change in the destination of the property; whereas in fact, whether it is applied to the support of two ministers or only one, it is equally appropriated to the use of the ministry. Moreover, the legislature have sanctioned this agreement, and it is laid down by Lord Coke and others, that the donor and donee may join and alter the disposition of the property. The proceedings in the present case were only making partition among tenants in common upon their joint petition.
    The opinion of the Court was delivered at May term, 1826, as drawn up by
   Parker C. J.

[After stating the facts.] The defendant acting for the parish, which was organized in 1824, defends against the plaintiff’s claim for his accustomed portion of the income, as established by the foregoing proceedings, by denying the validity of all those proceedings, and by asserting a right in the parish, as lawful successors to the original grantees of the land, or as a body for whose use it was granted as a ministerial lot, to the whole of the income arising therefrom, notwithstanding the agreement before stated, the legislative proceedings founded thereon, and the entire acquiescence of all the parties in any way interested in the fund for a period of nearly thirty years.

The first position taken in support of this defence is, that the grant being made to the original proprietors or grantees of the township for specific purposes stated therein, it was not within the constitutional power of the legislature to vary the terms of the grant or the uses and purposes for which it was made. And the position is correct with the limitation, that with the consent of the parties legally and equitably interested in the grant, a legislative act will avail to enable those parties to carry into effect just and honest intentions in relation to the property, preserving the original purpose and object of the grant. The donor was the legislature itself, the donees or the cestui que trusts of the grant, were the proprietors and settlers in the township of Lanesborough, who afterwards became inhabitants of the town of Lanesborough, and the min isters of that town. An act relating to this property, founded on the consent of all these parties, and which does not change the use and application of the property, but distributes its income equally between two religious societies formed out of the inhabitants of the town, cannot we think be unconstitutional.

Had the original grant been appropriated to the support of a minister of the congregational order only, there might be more reason for complaint of these proceedings ; but the grant is of one lot for the use of the first settled minister, and of the lot in question for the use of the ministry only; so that the first settled minister of any denomination whatever would have acquired a title to the first lot, and the other would have belonged as ministerial land to the minister of any denomination who should have been regularly settled by the people of that township. An appropriation of the fund to the support of regularly settled ministers over any portion of the people, who should have constituted themselves a religious society distinct from the rest, with the consent of the principal body, under the sanction of the legislature, cannot be thought unjust or unwise, and is in no respect inconsistent with the original purposes of the grant.

It has not been unusual for the legislature to authorize towns, parishes, and other public bodies, to convert real into personal property for the benefit of such corporations ; and there certainly can be no objection to the exercise of this power, if thereby the will of the donors is not changed or perverted. And in the case before us, as the grant in 1741 was for the support of the ministry, for the benefit of the inhabitants of Lanesborough, it is no misapplication of the bounty to cause it to aid in the support of two regularly settled ministers instead of one.

In order to fortify this position taken by the defendant, it is argued, that immediately upon the organization of the episcopal society in Lanesborough, which was in 1767, the rest of the inhabitants became a separate and distinct parish navmg rhe immunities and privileges of the first parish m that town, and that therefore the proceedings of the town, in 1796 and 1797, relative to the division of this property and the application for the sale of it, were void, because it was a subject of parochial interest, and the town as such had no control over it. But at that time the episcopal society existed only as a voluntary religious society. It was not incorporated, nor did it act in the assessment of taxes except through the municipal power. Neither did the congregational society assume a distinct legal character until within a few years; but all parochial concerns were conducted under the forms of municipal authority, according to the usages of our towns and parishes in early times. As a town it raised taxes for the support of its minister, and in the same capacity contracted with and settled a colleague pastor. Now admitting that by the mere organization of the episcopal church, without any act of incorporation, the residue of the inhabitants might have assumed the character of the first parish and organized themselves as such, yet they did not do it, but continued to transact all their parochial business under municipal authority until the episcopal church was in fact incorporated, which was not until 1823. Their doings in regard to the property in question were then as valid and effectual as any other transactions of a parochial nature which they undertook to perform. But a legal body politic is not created, or was not at that period, merely by a voluntary association of individuals ; it may perhaps exist by prescription, but at the period of these transactions no such title could be affirmed, for the society had not pretended to claim or exercise the rights of a body politic. The town, then, when it voted to apply to the legislature for authority to sell the land and to appropriate its proceeds in the manner stated, were exercising parochial rights over parochial property in the accustomed manner, and for purposes beneficial to those who were interested in the property.

The case of the First Parish in Brunswick v. Dunning, does not militate against this doctrine, for two poll parishes had beee incorporated in that town, when the plaintiffs in the suit claimed to be considered as the first parish.

Then it is said the sale is void, because property thus appropriated cannot be parted with, even with the aid of legislative authority for that purpose ; and the case of The Inhabitants of Harrison v. The Inhabitants of Bridgeton is cited to maintain this point. But that case does not deny the validity of a sale under such authority ; it only decides that the property thus sold was riot, by the true construction of the act, to be divided between Harrison and Bridgeton, from which last town Harrison was created. The right of the town with its minister, upon license from the legislature, to sell, is not denied ; but it is held that no change in the use of the property could thus be made ; and although it is stated that the town could not dispose of the property, the evident intention of the Court is, that it cannot be treated like other town pro perty, but must be dealt with as parochial property, that is, that the minister and the town as a parish can alone transfer the fee.

It is true that the town or parish cannot dispose of land or other property thus held, otherwise than according to the provisions of the grant by which they hold ; but we consider the appropriation made in the grant conformed to in the subsequent disposition, because the grant was for the use of the ministry generally ; if it had been limited to the use of the congregational ministry, this objection would apply.

After thus considering all the objections which have been raised to this apparently most just and equitable disposition of a public fund, we are unable to perceive any ground to justify the present congregational society in taking possession of the whole fund and refusing to share the income according to an amicable adjustment made in the year 1796, and which has acquired all the force of a contract under the resolve of the legislature.

The first parish are lawful successors to the town in all the property of a parochial nature which remained the town’s when the parish came into existence, but before that time the town had agreed upon a division with part of the inhabitants, who had as good a right to the property, in proportion to their number, as any other part, and this bargain has been sealed and sanctioned by the legislature.

The defendants must be defaulted and judgment be rendered for the sum agreed on.  