
    Calvin Leffingwell et al. versus Samuel D. Elliott.
    ‘ An act, incorporating individuals for a particular purpose, does not vest in the corpo* ration, land previously owned by them as tenants in common and previously used for the same purpose.
    Parol evidence is not admissible to show that a deed given by one of such tenants in common, of his shave in the stock of the corporation, was intended to pass his share of the land.
    If a grantee of land with warranty, being evicted by a paramount title, extinguishes sucli title for a nominal consideration, he can recover upon the warranty the amount of such consideration only, together with a reasonable compensation for any trouble and expense to which he may have been put in procuring the extinguishment.
    This was an action for breaches of covenants against incumbrances and of warranty, contained in a deed of real estate, dated January 13, 1825, given by the defendant to the plaintiffs.
    It was agreed that on the 28th of December, 1814, Eddy, one Watson, and fourteen others, were tenants in common, in fee simple, of seventy-five acres, parcel of the land conveyed to the plaintiffs, and that while they were so tenants, they used the same for the purposes of a manufacturing establishment, until June 13, 1815, when they were incorporated by an act of the legislature, (St. 1815, c. 3,) by the name of the Oxford Cotton Manufacturing Company. This parcel of seventy-five acres was never conveyed by Eddy and the other proprietors to the corporation, nor ever vested in the corporation, unless it so vested by force of the act of incorporation and by operation of law. The act of incorporation makes no allusion to this land, but merely authorizes the corporation to hold real estate. The corporation was organized agreeably to the statutes regulating manufacturing corporations, and the corporate stock was divided into a certain number of shares. The defendant derived his title, if any, to the seventy-five acres, by purchasing of the several corporators, for the time being, the whole of the shares, and taking as vouchers of such purchase certain corporation certificates, under seal, in the following form — “ This certifies that A. B. is owner of share No. -. value estimated at 1000 dollars — together with deeds of transfer, by which the corporators “ give, grant, sell and convey, and to farm let” their respective “shares.” The defendant gave a fair market price for the shares, considering them to embrace the seventy-five acres, and those persons of whom he bought were aware, that in making the purchase, he expected to acquire a title in fee to this land.
    
      Sept. 30th.
    
    If the evidence was admissible, it was agreed that it could be proved, that the members of the corporation and the original owners of the real estate in question, considered the shares in the company to be made up of the real and personal estate in their possession, and supposed that by the act of incorporation the real estate was transferred to the incorporated company and would pass by the transfer of its scrip.
    While the plaintiffs were in possession of the land conveyed to them, claiming to hold in fee simple, Eddy entered upon the seventy-five acres for the purpose of regaining seisin and possession thereof to the use of himself and others, he and they claiming to be owners thereof in common. Whereupon the plaintiffs yielded the possession, and took from Eddy a lease of his share for 999 years, for the consideration of one cent. The plaintiffs paid divers sums of money to the original proprietors for the purpose of obtaining from them acquittances of their supposed interest in the seventy-five acres. Some of these acquittances were obtained at the instance of the plaintiffs alone, and others at the joint instance of the plaintiffs and the defendant.
    On the 8th of July, 1826, R. Newton levied an execution upon an undivided thirty-second part of a portion of the seventy-five acres, as the estate in fee simple of Watson, and thereby acquired the interest, if any, which Watson had in the same.
    If the action could be sustained, an auditor was to be appointed to ascertain the damages.
    
      Newton and Barton, for the plaintiffs,
    contended that the title to the seventy-five acres had not vested in the corporation, and that it did not pass by the transfer of the certificates of “ shares ” in the corporation stock. This land is not sufficiently described in the deeds of transfer; Worthington v. Hylyer, 4 Mass. R. 205; and the paroi evidence offered to show that it was the intention of the parties to convey it, is not admissible.
    
      470
    
      In regard to damages, they said the plaintiffs were willing to take the sum actually paid by them to extinguish the paramount title, if they were allowed a reasonable compensation for their trouble in effecting it; Sumner v. Williams, 8 Mass. R. 162; otherwise they claimed the value of the land at the time of the eviction. Gore v. Brazier, 3 Mass. R. 523.
    
      J. Davis and Mien, contra.
    
    The corporation property con sisted of real and personal estate, and the whole passed by the deeds of the stockholders. The claim made by the grantors of the defendant was founded in fraud ; and if the paroi evidence is admissible, it appears they intended to convey the land now in question. To show that it was admissible, they cited Thomas v. Thomas, 6 T. R. 671; 3 Stark. Ev. 1021, 1026; Doe v. Burt, 1 T. R. 701 ; Kerslake v. White, 2 Stark. Rep. 508; Powell v. Biddle, 2 Dallas, 70 ; Livingston v. Ten Broeck, 16 Johns. R. 14; Worthington v. Hylyer, 4 Mass. R. 196; Lelnnd v. Stone, 10 Mass. R. 459; Hatch v. Hatch, 2 Hayw. 32.
    
      Oct. 6th.
   Per Curiam.

The mere incorporation of tenants in common to enable them to carry on more conveniently a common object, does not vest in the corporation a title to the land which had been previously used by the individuals for the same purpose. The title must be conveyed by proper deeds from the individuals to the corporation. The deed of a “ share ” in the present case could convey to the defendant only the incorporeal right which the grantor had in the corporation. No real estate was conveyed by it, nor did it contain a description of any land. It meant to grant only what was the subject of the corporation certificate, that is, the corporate property. It is clear then, there being no conveyance of the land in question to the corporation, and none by the individual owner to the defendant, that there was an outstanding paramount title ; against which the plaintiffs have a right to be indemnified.

In regard to damages, if the plaintiffs extinguished the paramount title for a nominal sum, they were entitled to recover no more of the defendant. If they were put to trouble and expense m procuring the extinguishment, that is a proper ground of damages. The lease for 999 years is like an estate in fee, and it was for the benefit of the defendant to have the paiamount title extinguished by a conveyance of that kind. 
      
       See Swell v. Patrick, 3 Fairfield, 9.
     