
    William Rogers versus Elisha Goodwin.
    Under an authority, given by an ancient statute of the colony to proprietors of common and undivided lands, to dispose of their estates, the practical construction has been that they have power to sell any part of them to a stranger. The Court will not now make a different construction.
    This action was brought to recover possession of a certain tract of land in Lebanon, in this county. Upon the general issue pleaded, the action was tried at term, before Thatcher, J., and a verdict rendered for the defendant. At this term the plaintiff moves for a new trial, on the ground that the verdict was against evidence. The facts were reported by the judge, and were substantially as follows : —
    In support of the plaintiff’s title was produced the record of a judgment of this Court, holden here in June, 1798, in favor of the present plaintiff, against the proprietors of the late common and undivided lands in the town of Lebanon, for the sum of 1824 dollars 33 cents damage, and 52 dollars 82 cents costs. The count on which this judgment was rendered was for money [ * 476 ] * had and received to the plaintiff’s use, November 28, 1793. An execution on this judgment was extended February 16, 1803, on the premises demanded, and seisin and possession thereof delivered to the plaintiff’s attorney.
    The defendant showed a deed, dated November 13, 1780, of a committee of the proprietors of the township of Lebanon, (appointed April 7, 1778, with full power to sell any of the undivided lands in said township at their discretion, for the most the same would produce, and to make deeds thereof,) conveying the premises to one Jonathan C. Chadbourn in fee, with a warranty against' all persons claiming by and under said proprietors, or any persons whatever; also, a deed of bargain and sale of the same lands from Chadbourn to the defendant, dated September 30, 1787, to hold the same in fee, with warranty against all persons. Under this last deed, and near the time of its date, the defendant entered upon the premises, erected a house and barn thereon, and made other improvements; has continued to occupy it to the present time; and was, with his family, living thereon at the time of levying the above-mentioned execution.
    The plaintiff read and relied on the operation of a statute entitled “ An Act concerning the proprietors of Lebanon,” passed February 19, 1799,  and another act, in addition thereto, passed February 10, 1801. 
    
    The principal point now made by the plaintiff’s counsel was, that the proprietors of common lands have not authority by law, in their corporate capacity, to sell their lands to a stranger; that the deed to Chadbourn being thus void, at least against creditors, the land remained the property of the proprietors, and, as such, liable to the plaintiff’s execution.
    Upon a suggestion from the Court that this had been long prac tised, and that a decision of this Court against the practice would shake the title to very many estates, the plaintiff’s counsel answered that, though formerly such a practice might have prevailed very generally, it was believed there were few, if any, instances of it in later times — whence the mischief would not be so extensive as the Court seemed to apprehend.
    * To show the incompetency of proprietors in their [ * 477 ] corporate capacity to convey to strangers, the counsel for the plaintiff observed that, the proprietors ceasing to exist after a final division of the common lands, their grantees would be wholly without remedy for the breach of any covenants into which the proprietors might have entered. But to this the Court answered that this inconvenience was no greater than arose in every case where an individual sells land with warranty, and afterwards dies insolvent. It is the folly of the grantee to take or to rely upon covenants upon which he can have no beneficial remedy.
    The plaintiff’s counsel, perceiving that the opinion of the Court was against them, said they would not further press the argument.
    
      
      
        2 Mass. Special Laws 272.
      
    
    
      
      
        Ibid. 407.
    
   By the Court.

The plaintiff, having an execution upon a judg ment which he had recovered against the proprietors of the township of Lebanon, causes it to be extended upon a tract of land which the proprietors, by their committee, had before sold to a stranger for a valuable consideration, and of which the assignee of the grantee, who is the defendant in this action, was, at the time of the extent, in possession. And he relies on the incompetency ol the proprietors, in their collective capacity, to convey their common estate to a stranger.

The Solicitor-General and Hubbard for the plaintiff.

Emery and Holmes for the defendant.

By a law of the colony of Massachusetts, passed as early as the year 1636, authority was given to the freemen of every town to dispose of their lands, &c. In the preamble to a statute passed in 1753, it is recited that the proprietors of lands lying in common have power “ to manage, dispose, and divide, the same, in such way and manner as hath been, or shall be, concluded and agreed on by the major part of the interested.”

Of these statutes a practical construction early and generally ootained that in the power to dispose of lands was included a power to sell and convey the common lands. Large and valuable estates are held in various parts of the commonwealth, the titles to which depend on this construction. Were the Court [ * 478 ] * now to decide that this construction is not to be supported, very great mischief would follow. And although, if it were now res integra, it might be very difficult to maintain such a construction, yet at this day the argumentum ab incorwenienti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words. The result is, that there can be no new trial.

Judgment according to verdict. 
      
       2 Mass. Laws, App. 966.
     
      
      
        Ibid. 995.
     
      
      
         Packard vs. Richardson & Al. 17 Mass. Rep. 144.
     