
    Timothy S. Case vs. Elias Benedict & others.
    A member of a school district who agrees with a committee of the district, to convey to the district a lot for a school-house, and delivers them a deed thereof, taking their note in payment, is estopped to deny the authority of the committee to accept such deed.
    Trespass guare clausum fregit. The writ was dated June 7, 1850, and the case was submitted to the court of common pleas, and, by appeal, to this court on an agreed statement of facts, of which the following are the most material:—
    The plaintiff was lawfully seized of the land of the alleged trespass, before and up to the time when the deed hereinafter mentioned was executed, and has continued in the actual possession to the present time, without interruption except as hereinafter stated.
    
      The defendants entered upon the land, on the 31st day of May, 1850, and ran out a line, and made a division fence between land of the plaintiff and land which the plaintiff contracted to sell to School District No. 14, in Pittsfield, as hereinafter stated. This is the trespass sued for. The plaintiff was present and forbade their entry.
    In the early part of April, 1850, Caleb Goodrich, and others, claiming to act as a committee of School District No. 14, made a verbal contract with the plaintiff for the purchase of the premises, for the purpose of erecting a school-house thereon, and gave their note for the price.
    The parties went on the ground to be conveyed, and set up the boundaries, and about the 7th of April, the plaintiff delivered a deed of the premises, in the usual form with a release of the wife’s dower, to one of the committee, and received their note. The grantees in the deed were the inhabitants of School District No. 14.
    It was stipulated in the deed, that the grantees should make and maintain the division fence. A meeting of the district was held April 5, at which time a committee was chosen to purchase land for a school-house, who made the contract with Case, above mentioned. Another meeting was held by adjournment, April 19, when Case acted as moderator, and the committee reported that they had received from Case a deed of the land in question to the district. On motion that the deed should be read, one of the committee handed the deed to Case, who read the deed to the meeting, and then put it in his pocket and carried it away, leaving the note. After Case had left the meeting, it was voted to accept the land purchased by the committee; and the same evening, one of the committee called on Case and requested him to deliver the deed back, and take the note; but Case refused to do so, and, within a few days after, destroyed the deed.
    The meeting at which the transactions above mentioned occurred, was not called by the warrant of the selectmen or prudential committee.
    The case is submitted to the decision of the court upon the foregoing facts, and if the plaintiff is entitled to recover, he is to have judgment for one dollar damages and costs ; and if the defendants are entitled to recover, they are to recover their costs. The court may draw any inferences from the facts stated, which a jury would be authorized to draw were the case tried by them.
    
      E. Merwin, for the plaintiff.
    1. The meeting of April 5,1850, and all its adjournments, were illegal. It was not called by the warrant of the selectmen or prudential committee. Rev. Sts. c. 23, § 46. No notice was given to the inhabitants of the district. § 47.
    2. Consequently, all the votes under which the defendants attempt to justify, were illegal, and the persons claiming to be a committee of the district had no such authority. School District in Stoughton v. Atherton, 12 Met. 105.
    3. As this committee were not the agents of the district, there was no legal delivery or acceptance of the plaintiff’s deed; nothing passed to the district by it, and the plaintiff had a right to revoke and annul it.
    4. This is not altered by the note which the plaintiff received and subsequently returned. It was taken under the misapprehension that the promisors were agents of the district, and so the district were bound by the covenants in the deed. It created no obligations between the plaintiff and the district; no consideration passed from the district, or at their request. Still less, can the effect of this negotiation between the plaintiff and the promisors be to vest an estate in the district without their knowledge or consent.
    5. Admitting, however, that the plaintiff’s deed passed the estate to the district, the defendants are, nevertheless, trespassers against the plaintiff. The plaintiff was in the actual occupation, and the defendants had no license or authority from the district. Graham v. Peat, 1 East, 244; Inhabitants of Barnstable v. Thacher, 3 Met. 239; 2 Saund. PI. & Ev. 295, and cases cited; 1 Chitty PI. 202; Slater v. Bawson, 6 Met. 439, 445 ; Williston v. Morse, 10 Met. 17, 25.
    P. L. and J. Page, for the defendants.
   By the Couet.

The plaintiff having dealt with the committee as the committee of the school district, of which he himself was a member, as an authorized committee of the district, having taken security satisfactory to himself, and having with his wife, made, executed, and acknowledged a conveyance to the district as a corporation and delivered it to a committee recognized by him as their authorized agents to accept it, is estopped to deny the authority of the committee, or the regularity of the meetings, at which they were chosen. The district was a corporation capable of taking a conveyance of real estate; School District in Stoneham v. Richardson, 23 Pick. 62; they must act by agents ; an acceptance of a deed by a committee recognized by the grantor as their agents, is, as against him, an acceptance by the district, and primd facie, vests the property in them. Delivery to a committee, to the use of the district, was a delivery to the district; and unless they denied the authority of the committee, the grantor could not.

The unauthorized and wholly unwarrantable act of the plaintiff, in getting possession of the deed, under color of doing an official act of duty as moderator of the district meeting, could not devest the title of the district, acquired by the execution and delivery of the deed.

But it is said that, at the time of the alleged trespass, the plaintiff was in actual possession, not having surrendered it, and therefore, trespass quare clausum fregit would lie. But this does not follow; if he was in possession, he was so of his own wrong; the right of possession followed the right of property, and the title being in the district, the entry of any committee man, or other member of the district, was not a wrong done to the plaintiff.

Judgment for the defendants.  