
    David Wood & others vs. Edmund Cushing & others.
    After a parish had accepted a parol gift of a tract of land for the site of a meetinghouse, and had erected such house thereon, and sold the pews, in the usual manner, to individuals, and done other acts indicating that the control of the house was in the parish at large, the heirs at law of the donor of the land conveyed the same to the deacons of the church connected with the parish, upon the trust and condition that they, and their successors in office, should permit the proprietors of the pews in the meeting-house then erected, or that might thereafter be erected, on said land, forever to occupy, hold, use and enjoy said land, and the meeting-house then thereon, or that might be thereafter built thereon, for the purpose of maintaining public worship in said iiouse, and for all religious and parochial uses and occasions, and for all usual purposes, or purposes deemed proper by the proprietors of said pews. Held, that this conveyance did not confer on the proprietors of pews the right of electing the minister who should officiate in the meeting-house, but that such right was left in the parish at large.
    The provisions of the Rev. Sts. c. 20, §§ 26-28, as well as the provisions of § 17, apply to a parish that has once been legally organized, but which, for the want of officers, or any other cause, is unable to assemble in the usual manner. Therefore, where a meeting of such parish, whose assessors had not been sworn, was called and conducted in the manner prescribed by §§ 26-28, and a parish committee was chosen at such meeting, it was held that they were the legal committee, and that another committee, afterwards chosen at a meeting called according to the provisions of § 17, had no legal authority.
    In a bill in equity, it was set forth that, on the 28th of March 1832, Mary Putnam and others, by their deed of that date, conveyed to the plaintiffs a parcel of land in Lunenburg, to have and to hold the same to them, “ in their capacity of deacons of the church belonging to the first congregational society in said town of Lunenburg, and their successors in said office, to their use and behoof forever, upon the following trusts and conditions; viz. upon the trust and confidence that they, the said deacons, as aforesaid, and their successors in said office, shall permit the proprietors or owners of the pews in the house of public worship now erected on said premises, or that may be hereafter erected thereon, forever to occupy, hold, use and enjoy the tract of land hereby conveyed, and the house of public worship that now stands thereon, or that may hereafter be built on said premises, for the purpose of maintaining the stated public worship of God in. said meeting-house, and for all such religious and parochial uses and occasions, and for all such purposes as are usual, or may be deemed proper by the proprietors of said pews: ” That the plaintiffs, ever since the making of said deed, have been and still are deacons of said church; that the meeting-house, which was then standing on said premises, is now standing thereon ; that the whole number of pews therein, belonging to individual proprietors or owners thereof, [named,] was seventy two, at the time of the injury hereinafter set forth: That on the 12th of April 1840, and long before, and ever since, there was and is a religious society in said Lunenburg, known as the first congregational society in Lunenburg, of the church of which the plaintiffs then were and still are deacons, and of which W. Brown, P. S. Kim-ball and J. Howard then were and still are a committee, duly chosen to take care of the property, and manage the prudential affairs of said parish : That said religious society, together with the major part of the proprietors or owners of said pews, then and on divers days before and since, being Lord’s days, were desirous of occupying said meeting-house, for the purposes of public religious worship, and had employed for that purpose a minister of the gospel, [named,] duly ordained, &c. to preach and officiate, as such minister, to said society; and that the plaintiffs and said proprietors of pews were then and there desirous that said house should be used by the major part of said proprietors and said society, for the purposes aforesaid: That then and ever since, certain of said pew owners, and other individuals, have claimed and pretended to be members of said society, and to have acted as such in the election of certain officers thereof, and that S. Holman, L. Goodridge and S. Boutelle, then and ever since have claimed, and still claim and pretend to have been chosen as a committee of said society, to take charge of the meeting-house aforesaid, and did, on d,vers days since, being Lord’s days, without the direction or permission, and against the wishes of the plaintiffs, shut up said house, and prevent the minister aforesaid from entering or officiating therein, as minister, and thereby prevented said society and said major part of said pew holders from occupying or enjoying said house for the purposes of public worship: That neither said S. Holman nor said L. Goodridge was then an owner or proprietor of pews or a pew in said house, nor were' they and said S. Boutelle (as the plaintiffs believe) a committee of said society; nor did the persons, by whom they were chosen such, constitute said society, nor were they by law authorized to act as such.
    Wherefore the plaintiffs, averring that they were not advised how to execute the trust created by the said deed of Mary Putnam and others, and that the proprietors of said pews were numerous, and so far tenants in common of said house, that no plain, adequate and complete remedy at law existed for them,, prayed for a hearing in equity, and for general relief.
    
      The answer of the defendants averred that the plaintiffs were not deacons of said church, at the time of exhibiting their bill, or on the 12th of April 1840, or for a long time before or since, and that they were not, as deacons or trustees,' interested in said house or other real estate mentioned in their bill, and had no legal or equitable control thereof; because two of the plaintiffs, on the 9th of March 1833, and the other two, on the 29th of November 1833, withdrew from said society, and ceased to be members thereof, and gave due legal notice, to that effect, to the clerk of said society; and then and thereupon three of the plaintiffs joined themselves to, and became members of another religious society in said Lunenburg, and the other plaintiff joined himself to, and became a member of a religious society in Fitch-burg ; whereby they ceased to be members and deacons of the church aforesaid : That the remaining members of said church, in consequence of the withdrawing of the plaintiffs from said society and church, and ceasing to be members and deacons thereof, and to perform the duties of said office of deacons, did, on the 4th of November 1839, at a regular meeting of said members, convened for that purpose, elect two other persons, regular members, deacons of said church, in place and stead of the plaintiffs, and that said two persons were deacons, at the time of the grievances mentioned in the plaintiffs’ bill, and long before and ever since, and, as successors of the plaintiffs in said office, the only persons interested, as trustees, in said house or other real estate: That there has been, ever since the incorporation of said town of Lunenburg, a religious society, duly organized as a corporation, which, since the formation of other religious societies in said town, has been known and recognized as the first congregational society in said Lunen-burg ; that said society, as such, erected said meeting-house in 1830 ; that by a vote of said society, the pews in said house were sold in 1831, and the defendants, being members of said society, purchased pews in said house, and took deeds thereof, conformably to said vote, which deeds were given to the respective purchasers, in the name and behalf of said society; and the defendants then had reason to believe, and did suppose, •that said house was to be occupied for public religious worship, and for all common and ordinary religious and parochial uses and occasions, under the directions and in conformity to the wishes of said first congregational society or parish: That from the time of the erection of said house, till 1840, said society or parish, by their officers legally chosen, have taken charge of said house, and occupied it for purposes of public religious wor ship, peaceably and without obstruction : That there is another religious society in said Lunenburg, established in 1835, known as the first evangelical congregational society in Lunenburg; that the minister mentioned in the plaintiffs’ bill is, and for several years last past has been, minister thereof; that the members thereof, with their said minister, being desirous of a more commodious place for public worship, than that which they previously occupied, and said first congregational society, not having a regular ordained minister settled over them, and not having occasion to occupy their said house every sabbath, had, during the year 1839, and previously, when not wishing to occupy the same for public worship, permitted said evangelical society to occupy the same for that purpose: That previously to December 21st 1839, said first congregational society pro cured a duly ordained minister of the gospel to preach and officiate to said society, on every other or alternate sabbath then next after said day : That on said day, (December 21st,) at a legal meeting of the members of said first congregational society, called for that purpose, the said Holman, Goodridge and Boutelle, mentioned in the plaintiffs’ bill, were chosen a committee to take charge of said house, and to give notice to the aforesaid minister of the said evangelical society, that said first society would occupy said house for public religious worship, on the then next sabbath, and on every alternate sabbath thereafter ; leaving and permitting said minister of said evangelical society, with the members thereof, to occupy said house on every intermediate sabbath; that notice was so given by said committee to said minister, and that from and after said 21st of December, said first congregational society occupied said house, for the purpose aforesaid, on each alternate sabbath, up to April 12th 1840, (which day was one of said alternate sabbaths,) when said Holman, Goodridge and Boutelle, committee as aforesaid, entered into said house, to prepare it for public worship under the teaching of said minister, procured as aforesaid to preach to said first congregational society, and conducted him into the pulpit of said house, for the purpose of. officiating in the usual religious exercises of the Lord’s day; whereby, and in consequence. thereof, the minister of said evangelical society was prevented from officiating in said house on said day; which was all the obstruction and shutting up of said house, by the defendants, against the minister last aforesaid, of which complaint is made in the plaintiffs’ bill.
    The defendants also denied, in their answer, that said first congregational society, and the major part of said pew holders, were prevented from occupying and enjoying said house for the purpose of public worship, on the days mentioned in the plaintiffs’ bill, or at any other time. They also denied that W. Brown, P. S. Kimball and J. Howard ever were a committee duly chosen to take care of the property and manage the prudential affairs of said parish; or that said first congregational society, ot a major part of the proprietors of said pews, on said 12th of April 1840, or on divers days since, were desirous of having said minister of said evangelical society preach and officiate in said house, on the days appropriated, as aforesaid, for the services and preaching of the other minister above mentioned. Wherefore the defendants prayed that the plaintiffs’ bill might be dismissed.
    
      From the evidence in the case, as taken and reported to the court by a commissioner agreed upon by the parties, it appeared (among other facts, which are hereinafter stated in the opinion of the court,) that at a meeting of the first congregational society in Lunenburg, held on the 20th of February 1830, Daniel Putnam offered to said society a piece of land, as a site for a new meeting-house, and that the society accepted the offer and voted their thanks to him “ for the gift of the land: ” That said society afterwards proceeded to build a new meeting-house on said land, and to sell the pews therein, as stated in the defendants’ answer: That said Putnam died, not having conveyed said land to the society, and that Mary Putnam and others, his heirs at law, on the 28th of March 1832, made the conveyance of said land to the plaintiffs, (who were then deacons of the church connected with said society,) in the terms stated in the plaintiffs’ bill: That at the annual meeting of said society, on the 23d of March 1839, a clerk was chosen and sworn, and three assessors were chosen, one of whom “ was not a member of the parish,” and neither of them was sworn: That a meeting of said society was held on the 21st of December 1839, under a warrant issued by a justice of the peace, and another meeting on the 24th of March 1840, under a like warrant, (as stated in the opinion of the court,post. p. 457,) at the first of which meetings, S. Holman, L. Goodridge and S. Boutelle were chosen the committee of said society, as stated in the defendants’ answer to the plaintiffs’ bill; and at the latter meeting, W. Brown, P. S. Kimball and J. Howard, mentioned in the plaintiffs’ bill, were chosen the committee of said society.
    The evidence reported by the commissioner was full and minute, as to the ownership of the pews in said meeting-house, and the preference of the several pew owners for the one or the other of the ministers mentioned in the bill and answer; and also as to the votes and proceedings of the church, the election of deacons, &c. But a statement of this part of the evidence is omitted; it being rendered immaterial by the decision of the cause, by the court, on other grounds.
    This case was argued at October term 1841
    
      
      Washburn, for the plaintiffs,
    argued, 1st, that the plaintiffs were deacons; 2d, that the majority of the pew holders, through the plaintiffs, were entitled to the control of the meeting-house; and 3d, that the legal parish was that which was organized on the 23d of March 1840.
    
      Wood, for the defendants.
   Dewey, J.

Two questions, arising in the present case, have been considered by the court, and the result, as to these, will now be stated; it being understood that a decision on these points will render it unnecessary to consider the other question raised at the hearing.

1. Supposing the plaintiffs to be the deacons of the church belonging to the first congregational society in Lunenburg, do they, under the deed of trust from Mary Putnam and others, hold the meeting-house, which is the subject of controversy, exclusively for the use of the proprietors and owners of the pews therein, and to be under their entire control ? or is the same holden for the use of the pew owners, subject to the right of the first congregational parish in Lunenburg to elect the pastor, and direct as to the supply of the pulpit, from time to time ?

It is contended that the true construction of the terms of the conveyance will warrant the position, that the meeting-house is held for the sole use of the pew owners, and that they have the exclusive control over the pulpit; the legal estate being in the plaintiffs, and the pew holders being the cestui que trusts. The language used in the conveyance is undoubtedly strongly indicative of such purpose. The deed grants the estate upon the following condition: “ That the said grantees shall permit the proprietors or owners of pews in the house of public worship now erected on said premises, or that may be hereafter erected thereon, forever to occupy, hold, use and enjoy the tract of land hereby conveyed, and the house of public worship that now stands thereon, or that may be hereafter built on said premises, for the purpose of maintaining the stated public worship of God in said meeting-house, and for all such religious and parochial purposes and occasions, and for all such purposes as are usual, or may be deemed proper by the proprietors of said pews.” It is argued that, by force and effect of this conveyance, another association or body of men, distinct from and independent of both the church and the parish, is to decide who shall occupy the pulpit of the meeting-house, and is clothed with the authority of electing the stated preacher to those who worship there ; and the court are, substantially, asked by this bill to enforce in chancery this power of the pew holders, and to enjoin the parish from intermeddling therewith.

It becomes necessary to look at the other facts in the case, and see how far they may and ought to avail in settling the proper construction to be given to this deed. It presents a case certainly somewhat unusual, that the right to select the public teacher should be thus vested in the hands of a body of men who do not constitute the parish, and may embrace compara tively a small number of the entire members thereof, to the ex elusion of the regularly constituted and organized parish. Cases often occur, in the larger towns and cities, of religious societies composed solely of pew owners, and having no other test of membership than that of being pew holders. But this religious society was of a different character, originally a territorial parish, and acting for a long time under the town organization, and subsequently, upon the creation of other parishes, within the town of Lunenburg, organizing itself as the first congregational society in that town. As such society, it had heretofore elected its pastor; it had proceeded to erect a new meeting-house ; had received, by a parol gift, the land on which the house was erected ; had voted to sell the old meeting-house, and appropriate the proceeds thereof towards the payment of expenditures for the new; had sold pews in the new house, and done various other acts, all indicating the general control and authority over the subject to be vested in the parish, and that the pews, although they became the property of individuals, were to be held subject to the usual authority and power, vested in the parish at large, to elect their pastor, and direct as to the occupation of the pulpit of the new meeting-house. And such seems to have been the practical construction given to the conveyance, by all parties, from its date to the year 1840. Taking these circumstances into view, all of which were known to the parties to the conveyance, and in reference to which they may be supposed to have acted, and keeping in view the peculiar character of the trust property, the court are of opinion, that the proper construction, to be given to the deed of Mary Putnam and others, is this; that it was intended to vest the conveyed premises in the grantees, in trust for the use of the pew holders, so far as effectually to secure to them the full and free use and enjoyment of their several pews, on all occasions of public worship, and on all such other occasions as the pew holders might déem it proper that the house should be opened ; but leaving to the parish at large, as before, the right of electing the officiating clergyman. This deed, we think, is to be construed with reference to its subject matter, and to the usages and customs of religious societies ; and these, we are to suppose, were regarded by the parties to the conveyance, unless the language of the deed plainly imports the contrary.

The officers of the church belonging to the first congregational society in Lunenburg are made grantees. The grant is to them and their successors in the office of deacons of such church. This church is of course the church connected with the first congregational society. We cannot suppose that it was the intent of the grantors to abrogate or annul the power and authority of the parish in the matter of selecting a religious teacher, and to vest the same exclusively in the pew holders. We think the words of the trust deed do not necessarily require such construction ; but that the same may be and ought to be taken to mean that the pew owners are to use and enjoy their pews under such ministry as shall be provided by the parish, if such provision be made by the same.

2. The farther question then arises, which of the two organizations, claiming to be the first congregational society in Lunen-burg, is legally authorized to act as such ? This depends upon the opinion of the court as to the proper construction of the provisions of the Rev. Sts. c. 20, in relation to the calling of parish meetings. Both parties before us have proceeded, in the measures they have adopted for calling a parish meeting, upon the assumption that, for want of necessary parish officers to call such meeting, it was a suitable case to proceed under a warrant, to be issued by a justice of the peace, appointing the time and place of such meeting ; and this we suppose to have been correct. In this state of things, certain individuals, more than five in number, and members of the parish, applied to a justice of the peace for the county, representing that “ the parish was not duly organized according to law, both from the want of officers legally chosen, and many other causes,” and requested the said justice to appoint a time and place for a meeting of the parish, to organize themselves as a corporation, by acting on the several articles stated in their application. Thereupon a warrant was issued, bearing date November 29th 1839, directing such meeting to be held on the 21st of December 1839, requiring the members of the parish to assemble on that day, to act on the various articles stated in the said warrant, being articles relating to the choice of officers, the manner of calling future meetings, the mode in which persons may become members of the parish, and the appointment of a committee to superintend the meetinghouse. The proceedings under this warrant were conducted, it seems, under the forms prescribed by the Rev. Sts. c. 20, <§.<§> 26, 27, 28, and being prior in time, if authorized by law, the committee in relation to the meeting-house, appointed by that meeting, and acting under the votes of that meeting, would be the legally constituted committee of the parish, and the organization under which they have acted would be the true parish.

Another portion of the members of this parish, more than five in number, assuming the proceedings of the meeting, held on the 21st of December 1839, to be wholly irregular, by reason of the form of the application, and of the proceedings thereon being had under the <§> 26 of the statute, made application to another justice of the peace, under the provisions of <§, 17 of the same statute, to call a meeting of the members of the parish ; and he thereupon issued his warrant for such meeting to be holden on the 23d of March 1840, at which time various individuals, members of the parish, assembled and proceeded to elect parish officers, and to instruct the persons chosen members of the prudential committee to take possession of the meeting-house, &c.; and these proceedings, throughout, were conducted under the provisions of said 17th section ; and those, who claim rights under the votes of this meeting of March 23d 1840, insist that this was the only statute provision applicable to the state of the parish, and in pursuance of which any legal meeting could have been called by a justice of the peace upon application of five or more of the members of the parish.

That the provisions of the 17th section are applicable to the purposes for which these meetings were called, and would have furnished full authority for calling a meeting of the parish, in the state of things then existing, seems to be quite clear. Those provisions are in these terms: “In case the assessors or committee of any parish or religious society shall unreasonably refuse to call a meeting, or if there are no assessors or committee qualified to call one, any justice of the peace for the county, upon the application of five or more of the qualified voters, may call a meeting in the same manner as a justice of the peace is authorized to call a town meeting.” But the question then arises, whether this be the only mode of call ing a meeting of a parish once organized, but where, from the want of proper officers, or by reason of their refusal to act m the matter, it becomes necessary to make application to a justice of the peace for a warrant calling such meeting. The 26th section is in these words: “Any parish, which, from the want of officers, or any other cause, may be unable to assemble in the usual manner, and any religious society, that is not incorporated, provided they contain respectively ten or more qualified voters, may organize themselves as a corporation, in the manner and for the purposes expressed in the following sections,” viz. <§,<§, 27 & 28, which provide that a justice of the peace maj issue his warrant for calling such meeting, and also direct tne mode of proceéding in such cases.

The general object and purpose of <§><§> 26, 27, 28, would seem to be, to provide for the organization of religious societies not incorporated, or that had never been organized ; and it is contended by the plaintiffs in this bill, that these sections are exclusively confined to the calling of meetings for such original organization. But these sections contain provisions beyond oases of that nature, and of so plain and direct import, so obviously embracing the case of a parish unable to assemble for the want of officers, that we have not felt ourselves authorized to give to them the restricted construction contended for, though we are fully aware of the force of the argument arising from the improbability that the legislature should have made a second and dissimilar provision on the same subject, in the same chapter of the statutes. The two modes of calling such meetings, as provided in <§> 17, and in <§>■§> 26, 27, 28, do not very materially differ. The principal and perhaps the only distinction will be found to be, that at a meeting called under <§, 17, the parish clerk would preside at the opening thereof, and at a meeting called under the other sections, a justice of the peace would preside at the opening of the meeting. Both these modes of calling a meeting of the members of the parish being legal, which is to have precedence, and be held to have au thoritative control, in the matters of the parish ? We think it is the meeting first appointed and holden. This seems to be the necessary effect of the two provisions for calling such meeting. Each being legal and proper in itself, that which first takes place must have priority, and will supersede the authority to call a meeting in the other mode pointed out by the statute. It is a case where the legal maxim, qui jprior est tempore potior est jure, well applies. The result is, therefore, that the meeting of the parish, holden on the 21st of December 1839, was legally appointed, and the proceedings under it superseded all occasion or authority for the appointment of the second meeting on the 23d of March 1840, and the doings of such latter meeting are of no effect.

Bill dismissed.  