
    Samuel Austin versus Isaiah Thomas.
    A conveyance of parsonage land from the parish to the minister in fee was holden to be a void act.
    This was a writ of entry, in which the demandant, as minister of the first parish in the town of Worcester, in right of his parish, demands possession of a tract of land described in his writ; in which he counts upon the seisin of his predecessor, Thaddeus Maccarty, within thirty years before the 30th of April, 1814, the date of • the writ; alleging an entry by Thaddeus Maccarty, Jun., and Wih
    
    
      
      Ham G. Maccarty, by abatement within that time, under whom the tenant claims.
    * The demandant, to establish his title to the demanded premises, produced in evidence a copy of a vote of the inhabitants of the town of Worcester, in legal town meeting held on the 23d of March, 1746-7, they then constituting one parish, to raise the sum of £300, and to appoint a committee to make sale of 100 acres of the ministerial lands in the town, for the purpose of purchasing a parsonage estate with the sum so raised and the proceeds of said sale; also a resolve of the General Court, passed the 3d of June, 1747, authorizing said sale by the town, provided they should invest the proceeds thereof in real estate for the use of the ministry; also another vote of the inhabitants of said town, in legal town meeting, September 11, 1747, appointing a committee to purchase such a parsonage, agreeably to said resolve and the former voté of the town, and to receive a deed and conveyance of die same, to be given to John Chandler, then treasurer of the town, to and for the use of said inhabitants as a parsonage; also a deed from one Samuel Bréele, dated the 25th of September, 1747, conveying the demanded premises to said John Chandler, treasurer, to and for the use of said town as a perpetual parsonage.
    The demandant also proved that the Rev. Thaddeus Maccarty was, in the year 1747, duly ordained as the minister of said town or parish, and entered into possession of the demanded premises, and’ continued in possession thereof until the 20th of July, 1784, when he died
    It was also proved that, at a legal town meeting, held on the 10th of September, 1764, the said inhabitants appointed a committee to make sale of said parsonage to said T. Maccarty, on his indemnifying or releasing the town from all charges and expenses which should be incurred for the repairs made thereon ; and that a deed was accordingly made by said committee, in pursuance of said vote, to said Maccarty, dated the 4th of March, 1765, wherein they release and sell the same, in behalf of the said town, to said Maccarty, to have and to hold the same to him, his heirs and assigns, in fee.
    * It was also proved that, on the 13th of November, 1787, the second parish of Worcester was duly incorporated; and that, on the 29th of September, 1790, the demandant was duly ordained the minister of the first parish of said town, and regularly inducted into said office.
    The tenant read to the jury the last will and testament of the said T. Maccarty, empowering his executors, the said Thaddeus and William G., to make sale of the demanded premises; and a conve vanee thereof bv them to the tenant, dated the 13th of October, 1789.
    Upon these facts, the tenant contended, at the trial, that the deed of Samuel Breck to John Chandler, treasurer, was not a grant or donation for the use of the ministry, or to pious and charitable purposes, of the kind contemplated and provided for by the provincial act of 1754; or, if it were, that the release from the town to said Maccarty was such a concurrent act of the town or parish and the minister thereof as was equivalent, in law, to an alienation- of the same premises by the minister, with the consent of the parish; or that it would operate as a disseisin or discontinuance, so as to bar the demandant’s right of action.
    The judge, intending to reserve these questions for the consideration of the whole Court, instructed the jury that the said release was not such an act as was equivalent to an alienation of said land by the minister, with the consent of the parish, agreeably to the statute; and that it did not operate by way of disseisin, or otherwise, so as to bar the demandant’s right of action; and that the demanded premises had been legally appropriated to pious and charitable purposes, according to the true meaning and intent of the statute in such cases made and provided.
    If this direction should be considered as correct by the whole Court, or if, upon the whole facts, the demandant was by law en- ’ titled to recover, then judgment was to be entered on the verdict, which was returned for *the demandant otherwise the demandant was to become nonsuit.
    The cause was argued here, at the last September term, by Bigelow and Burnside for the demandant, and Lincoln for the tenant.
    
      For the demandant, it was said that the lands originally laid out as ministerial lands were, from such location, appropriated to pious and charitable uses; and the demanded premises, being purchased in lieu of those lands, must be considered as so appropriated also by the very purchase. The deed from the town to Maccarty could not operate a disseisin, because he continued seised under his former right, which was for his own use during his continuance in-office, and of his successors afterwards. In the case of Weston vs. Hunt, 
       the Court say expressly, that “ an alienation of the parsonage by the town, district, precinct, or vestry, is void ; for if there be a minister, the fee is in him; or if there be a vacancy, the fee is in abeyance.” 
    
    
      The minister and parish united cannot convey parsonage lands, even by the provincial act of 1754, unless the consideration or proceeds of such sale are appropriated to the same use. A sale foi any other object would be fraudulent. It is well known that the legislature never authorize such an alienation, but on the express condition that the proceeds shall be applied in the same manner as the estate to be alienated. But the conveyance by the town to Mr. Maccarty was to a use and purpose wholly foreign. It was in consideration of being discharged from certain claims or liabilities, a grant to him and his heirs; and the town or future ministers were to be deprived of all benefit from it.
    The deed was wholly inoperative, and Mr. Maccarty continued to hold under his elder and better title until his death, in July, 1784. The entry by his executors was an abatement, and being less than thirty years before the commencement of the action, the demand ant is within the legal term of limitation.  Great and * manifest inconveniences would result from a contrary hypothesis.
    
      Lincoln, for the tenant.
    The conveyance of Breck to Chandle was but of an estate for life in him, and the cestui que use can take no greater estate than the grantee.  The deed itself contains nothing which should constitute a gift to pious and charitable uses. On the contrary, it purports only an ordinary sale for a pecuniary consideration. The doings of the town, either before or after its execution, can have no operation on its construction.
    As this was but a conveyance to Chandler for life, at his death the estate reverted to Breck or his heirs. The use to the town, as an ecclesiastical body, could not vest for the statutes of mortmain. Nor would the provincial act of 1754 have made it good, if it had applied to it; for the use was limited to the town.
    The conveyance by the committee of the town to Maccarty may be considered as the joint act of the minister and the town, within the spirit and intent of the act of 1754. The object of the act plainly was, to prevent a conveyance by one party, to the injury of the other. Here was a concurrent act of both ; and it may operate as a conveyance by the town, with the assent of the minister.
    The conveyance by Maccarty’s executors was an alienation with the assent of the town, previously granted through their committee.
    But if there has been no alienation, there was clearly a disseisin by the conveyance to Maccarty in 1765. The town was then disseised by its own act, or by that of its committee; and the demon d-ant is barred of his right to recover in this action by the statute oi 1807, c. 74.
    The cause stood continued nisi for advisement, and at the last March term in Suffolk it was ordered by the Court that judgment be entered on the verdict.
    
      
      
        2 Mass. Rep. 500.
    
    
      
       See, also, Brovm vs. Porter, 10 Mass. Re? 93.
    
    
      
      
        Stat. 1807, c. 74, § 2.
    
    
      
      
        Bac. Abr., Uses and Trusts.— Co. Lit. 8, b, 9, a. — Cro. Car. 231, 244.
    
   Parker, C. J.

The first question which arises in this case is, whether the land demanded was ever ministerial *land, properly so called, of which the minister for the time being was seised in right of his parish.

This is denied by the counsel for the tenant, because the deed conveying the premises from Breck to Chandler was made to him as treasurer of the town of Worcester; so that the land became the property of the inhabitants of that town, in their civil and corporate capacity, but not as a parish or religious society.

But the motive and intent of the parties to this conveyance are apparent from the deed itself, it being expressly stated that the land was to be appropriated as a parsonage; and this being conformable to the vote of the town authorizing Chandler to purchase. At the time of the execution and delivery of this deed, the town of Worcester constituted one parish ; and it was the usage of all our towns anciently, before they became divided into parishes, to transact their parochial concerns at town meetings; making. no difference in the forms of their proceedings, when acting upon those subjects, or upon matters of mere municipal or political concern.

The grant of Breck to Chandler, who was the appointed agent of the town, was therefore a grant to pious uses; so as to come within the provisions of the provincial act of 1754; and the ministers of the town were entitled to the use of the property, and became seised successively, in right of their parish, which in this instance was the town. And according to other- provisions of that act, the substance of which has been reenacted since the adoption of the constitution, this land was unalienable, except by the minister, with the assent of the town or parish over which he was settled.

The next question, then, is, whether the tenant has shown such alienation as comes within the letter or the spirit of the act then in force. Upon the application of the minister, the town voted, in 1764, to grant the premises to him in fee simple, for a certain consideration' agreed upon between the parties; and pursuant to that vote, a committee, appointed for the purpose by the * town, in 1765, by deeds released and sold the same to Mr. Maccarty, in the manner determined by that vote.

Was this an alienation according to the true intent and moaning of’ the act ?

The town had not the fee in them, and therefore could not convey it. The fee was before in the minister, and this act of the town did not enlarge his estate ; for no title being in the inhabitants, according to the principles of the act of 1754, as explained in the case of Weston vs. Hunt, nothing passed by the deed of the town.

This being the case, the subsequent conveyance, attempted by the immediate grantors of the tenant, under the will of their father, who had been the minister to whom the grant of the town was made, must be ineffectual; for their father was seised only during the continuance of hiá ministerial office, which had ceased before this conveyance was made; and his executors derived no power, under his will, to make a title to this land.

It has been suggested that the vote of the town, on which the deed of the committee was founded, might be considered as the assent of the town within the act; and that a subsequent alienation, made by the minister, might be coupled with this assent, and thus a perfect alienation be made, within the equity of the act.

We should be glad to adopt this reasoning in support of the tenant’s title ; because we cannot but lament that a religious society should endeavor in this manner to avoid a conveyance, made, as far as appears, fairly by their predecessors; they having received a valuable consideration therefor. But we must administer the law, and leave it to the consciences of those who carry on the suit to estimate the true character of the transaction.

If Mr. Maccarty had aliened the premises in his lifetime, with reference to the vote of the town, as expressive of their assent, we do not know but the alienation would have been valid. But his power over the estate ceased with his life ; and he could not, if it had been * his intention, communicate an authority to his executors to dispose of them. The deed of the executors, therefore, as it respects the conveyance of title, is void, and the tenant can claim no benefit under it.

The effect of this decision will probably be, that an action upon the covenant to warrant will be brought; and that the estate of the deceased pastor of the first parish will be taken from his innocent heirs, to indemnify the tenant for the loss of a title which this very parish assisted to create, and for which they have once received a valuable, and, in their estimation, an adequate, consideration. But we have no right to regard the consequences of decisions which arise from a necessary application of the law to the facts brought before us. Judgment on the verdict. 
      
      
        Stat. 1785, c. 51.
     