
    Jacob Rice, Petitioner, &c., versus Henry Y. B. Osgood and Others.
    Where the legislature granted a township of land, taking security from the grantee that he should assign a certain proportion to the first settled minister in fee, and a similar proportion for the use of the ministry forever; it was holden that a minister, afterwards settled, could not demand partition of the proportion so to he assigned, as a tenant in common with the other proprietors of the township
    " The petitioner alleges that he, being the first Protestant minister settled in the town of Brownfield, in the county of Oxford, is seised of one sixty-fourth part of all the lands within the said town, in the right of said town, and for the use of the ministry ; and also of another sixty-fourth part of all the said lands in fee simple, as such first settled minister; that he holds the same as tenant in common with the heirs of Henry Y. Brown, Esq., deceased, and others to him unknown; and that he is desirous of holding the same in severalty; — wherefore he prays that partition may be made, and the said two shares be set off to him in severalty.
    The cause came before the Court upon an agreed statement ol facts, in substance as follows: —
    * The lands in the said town of Brownfield, mentioned in the petition, were granted to Henry Young Brown, grandfather of the respondents, by the General Court of the late province of Massachusetts Bay, in part on the 23d of January, 1764, and the resi due by sundry grants and confirmations between that time and the 10th of June, 1774. The first-mentioned grant was on condition that the grantee should give bond to the treasurer of the province, to settle a certain number of families on the land granted within a certain period, &c., and also that the grantee, his heirs, &c., out of the premises, grant one sixty-fourth part to the first Protestant minister duly settled, one sixty-fourth part for the use of the ministry forever, two sixty-fourth parts for the use of Harvard College, and one sixty-fourth part for the use of the school forever within the said town; and further pay the sum of 200Z., lawful money, to the treasurer; and that, within ten years, the said town should have' a Protestant minister settled among them. — An after grant or confirmation contained similar conditions, with some others not bearing upon the present action. — The said H. Y. Brown complied with all the conditions of the grant, on his part to be performed, respecting the government, to its acceptance.
    On the 16th of May, 1795, the said Brown made his will, which was duly proved on the 11th of November following, of which he appointed his wife Elizabeth executrix, with power to sell any part of his estate for the payment of debts, &c., as also for her own support, and that of his children until they should become of age; at which time two third parts of the residue were to be set off to his two grandsons and two granddaughters, in certain specified proportions, and the other third to his xvidow for her use during her life, and to be disposed of by her, at her death, according to her discretion, among the- said grandchildren ; and in want of such disposal, the whole to be divided as aforesaid; the said divisions to be made by three men to be designated for the purpose by the judge of probate. On the 26th of *May^ 1800, upon the death of the said executrix, administration of said Brown’s estate, with his will annexed, was committed to William Fessenden. On the 20th of February, 1802, the town of Brownfield was incorporated. After which, and in the same year, certain commissioners, appointed by the judge of probate, pursuant to the provisions in the said last will, by direction of the said Fessenden and of the said heirs, and with the knowledge of the said town, caused the lands within the bounds of the town to be surveyed and to be run out, divided into lots and numbered ; and, having set off one sixty-fourth part of the said grants of land for the first settled Protestant minister, one sixty-fourth part for the use of the ministry, another for the use of the school, and two sixty-fourth parts for the use of Harvard College, in quantity and quality, assigned to the said heirs respectively their several purparties in severalty.
    The corporation of Harvard College accepted the share assigned to them, and have sold a considerable portion of it; and the inhabitants have entered upon, and have made leases of, the lots assigned for the use of the school and of the ministry.
    Sundry negotiations are recited in the agreement of the parties, relating to the petitioner’s settlement as the minister of the town; and particularly his giving a bond to the town, conditioned to convey to them two third parts in quantity and quality of the ministerial rights of land, &c., as soon as might be after he should be installed in the office of minister, which is agreed to have taken place on the 15th of October, 1806, he being the first Protestant minister duly settled in the town.
    It is agreed that the several lots set off to Harvard College, to the first settled minister, for the use of the school and the ministry, each contain the proportion of land they respectively purport to contain; but the petitioner objects that the local situation and quality of the ministerial lands, set off as aforesaid, are not equal to the average of the lands in the town. — All the lands in the town are holden *and occupied according to the lotting and numbering of the said committee.
    Upon the facts stated, it is agreed that, if it should be the opinion of the Court that partition be again made, as prayed for, judgment shall be so entered, and commissioners appointed, &c. But if the Court should be of opinion that the respondents are sole seised of the several tracts of land set off to them as aforesaid, judgment shall be rendered that they recover their costs.
    
      Mellen,
    
    for the petitioner, contended that the former partition was invalid and void, and, therefore, that the petitioner was still entitled to have his two sixty-fourth parts set off and assigned to him the one in fee, and the other during his continuance in the office of minister of the town.
    The objections to the former partition were, 1. That there being at that time no minister, in whom the fee of one of the tracts, and the use of the other, were to vest, it was not then competent to the Probate Court to order partition to be made. The statute  requires notice to be given by the commissioners to all persons interested in the lands to be divided; and as this could by no possibility be done in this case, the statute did not authorize the partition. 2. Here was no authority given to the commissioners to separate the testator’s estate from that of others, with which it lay in common. Such was the part, the right to which now vests in the petitioner ; and without such authority expressly given, as authorized by the statute, the proceedings of the commissioners to that effect were void. Nor could the direction of the administrator, or the knowledge of the town, cure this defect; as at most they amounted only to a paroi assent to the partition.
    
      Emery for the respondents.
    The reservation of the lots for public uses was intended wholly for the benefit of the town. If the petitioner can now set aside the division already made, and obtain a new partition, the utmost confusion must ensue; and it will follow that no township * can hereafter be divided into lots for farms, until a minister is settled, which is absurd. In this case, nearly forty years have elapsed since a sev eral possession has been had of most of the lots in the town. If the Probate Court erTed, either in appointing the commissioners, or in accepting and ratifying the partition when made, an appeal should have been ■ made from the decree. It is too late now to object to the doings of the Court, in a business of which it had jurisdiction, as it certainly had in this case. But here the town, whose interest alone was concerned, has acquiesced in the division, and has occupied and exercised every act of several ownership in the lots assigned for their benefit. The statute must intend, in every case, a power in commissioners to separate the lands from that of others holding in common, or heirs and devisees will derive little benefit from its provisions.
    But we contend that the reservation of lands for public uses, in grants of townships, gives no such rights to the persons who are contemplated as the future occupants, as to entitle them to process for partition. If the grantees fail to assign the prescribed proportions of land for those purposes, the government may have a right to interfere ; perhaps the grant may be forfeited ; but it is wholly an affair between the government and their grantees.
    
      
       1783, c. 36, § 11,12,13.
    
   Sewall, J.,

delivered the opinion of the Court.

The petitioner, Jacob Rice, avers himself to be tenant in common with the heirs of Henry Y. Brown, deceased, and with others unknown, of and in all the lands within the limits of the town of Brownfield, and to hold, in fee simple to himself and his successors, one sixty-fourth part thereof in the right of the said town, for the use of the ministry; and another sixty-fourth part thereof in his own right, as the first Protestant minister duly settled in the said town. These proprietary rights, or shares of the said lands, he prays to have distinctly set off, and assigned in severalty.

The merits of this petition, and the right of the petitioner to have partition as prayed for, are submitted to the * Court, upon a statement of facts agreed on his part, and by Henry Y. B. Osgood and others, the grandchildren and heirs of Henry Y. Brown. By this statement, it appears that the town of Brownfield, as incorporated February, 1802, comprises certain tracts of land granted and confirmed to the said H. Y. Brown at several times; the first on the 28th of January, 1764, and the last on the 10th of June, 1774, by the General Court of the then province of the Massachusetts Bay. These grants were made upon the condition annexed to each of them, that the grantees should give bond to the province treasurer, to secure the placing of certain settlers on the said tracts of land; and that he should also, out of the premises, grant certain proportions of the said tracts of land to divers public uses; among others, a sixty-fourth part to the use of the ministry, and a sixty-fourth part to the use of the first settled minister.

The agreement of the parties is so expressed as to leave it uncertain, in some measure, whether the grants to be made by H. Y. Brown to public uses, were to be secured by his bond to the province treasurer, or were more immediately secured by a condition annexed to the several grants of land, and to each confirmation thereof.

The latter view of the case seems to be that in which the parties have considered it, according to the argument of their counsel; and then the general question to be decided is, whether such a condition is in itself a title, either to the town or to the first settled minister; so that when there comes to be a town and a minister, he, in the right of the town, and in his own right, has vested claims and proprietary shares, independently of any act of the grantee. And we are all very clear in the opinion that he has not; that the words in the several grants, providing for the ministry, and the first minister duly settled on the tracts of land granted, or for the benefit of the inhabitants thereof, created no title in any person. The words employed in the several grants, as stated by the agreement of the parties, * determine this question. These are not an immediate appointment to a separate use, either vested or contingent; nor are they to be construed as words of grant to persons or corporations not in esse. And as a condition, it cannot avail to a stranger, but to the grantor only.

Nor is this a proper mode of enforcing the performance of the condition. The provision is, that the patentee of the tract of land granted, is to grant, that is, to assign, such proportions or shares of the premises as are appointed for public uses.'

We can understand these words in no other sense than as a condition annexed to the grant, of which the government have the superintendence and care; and the remedy is with them, to enforce the fulfilment of it, substantially and according to their intent, for the pious uses to which the appropriations are declared. A neglect of this condition exposes the patentee to a forfeiture of his grant, if the government should think fit to exact it; that is, if the condition be understood as annexed to the grant itself, or to the confirmation of it. But if secured by the bond to the treasurer only, then the proper remedy would be upon the bond.

When the patentee, according to the condition of the grant to him, makes a grant or assignment, the estate vests where the appropriation is to a person or corporation in esse, and is accepted by him or them ; and where contingent, and to a person or corporation not in esse, the estate remains in the patentee until the contingency happens, and then vests, if accepted ; and, in both cases, an acceptance must be understood to be essential to discharge the. patentee of the condition annexed to his grant; or at least the grant or assignment must be such a one as ought to be accepted, being a fair and substantial fulfilment of the condition.

In the case at bar, the grants appointed to be made to pious and charitable uses, have been made by the respondents, or with their concurrence, they claiming the tracts of * land granted to Henry Y. Brown under his last will, and he having neglected to make any grant or assignment in his lifetime. And so far as the town is concerned in the lands appointed to the use of the ministry, the grant appears to have been accepted; and, indeed, the other grant also, if their acceptance would avail, as to the lands appointed to the use of the first minister.

But however this may be, the original grants to H. Y. Brown created no title or estate in the shares or proportions of land, appointed by the General Court to be granted by their patentee to the use of the ministry, and to the use of the first minister, until the grants or assignments by him or his heirs, according to those appointments, in performance of the conditions annexed to the original grants. The petitioner, therefore, has no remedy in this course, as a tenant in common, or proprietor, in the tracts of land comprised in the township of Brownfield; and the judgment must be, that he take nothing by his petition, and that the respondents recover their costs.  