
    The Inhabitants of Milton versus The First Congregational Parish in Milton.
    
      k grant which is void, is nevertheless evidence of the nature and extent of the claim of a party making an entry under it.
    In 1659 the proprietors of common land in Dorchester, passed a vote giving and setting apart 400 acres of the common land, one half for the use and maintenance of the ministry to the inhabitants of Dorchester living on the northwest side of Neponset river, and the other half to the inhabitants of Dorchester living on the southeast side, to be improved fx,,* the use of the ministry there. In 1662 the inhabitants of the southeast side were incorporated as a town by the name of Milton, and a partition of the 400 acres “formerly laid out for the maintenance of the ministry in both towns,” was made by Dorchester and Milton, and Milton entered upon the part set off to that town in severalty, and held the same and received the income thereof until 1818 ; when, in conformity to a vote of the town, the congregational inhabitants not belonging to any society out of the town, were incorporated as the first parish, with all the parochial rights and duties previously appertaining to the town, and the parish entered upon the land set off to Milton as above mentioned. It was heldt that the town of Milton took the land in its parochial capacity, and that upon the incorporation of the parish the land belonged to the parish.
    As the town of Milton, before the incorporation of the parish, made provision for the support of a minister, the fact that the income of the land was not always specifically applied towards the payment of his salary, but was sometimes paid into the town treasury, was held not to disprove a seisin in the town for the use of the ministry.
    This was a writ of entry, in which the demandants claimed about 100 acre's of land in Milton. They counted upon their own seisin within thirty years and a disseisin by the tenants. The tenants pleaded that they did not disseise the demandants, and claimed to hold the land in their own right.
    The parties stated a case.
    Prior to 1659, the township of Dorchester included all the territory which was comprehended within the towns of Dorchester and Milton, before the annexation of a part of Brain-tree to Milton ; and the part of Dorchester lying on the southerly side of Neponset river, which was in 1662 incorporated as the town of Milton, was called Unkataquissett or Unquity.
    On the records of Dorchester there is an entry, that at a meeting of the proprietors of certain common lands, in Dorchester, in 1659, a vote was passed, “that they do freely give, sequester and set apart for ever, 400 acres of land, that is, 200 acres thereof, to be improved from time to time for the use and maintenance of the ministry, to the inhabitants of Dorchester that live on the northwest side of the river Neponset, and the other 200 acres to the inhabitants of Dorchester that live on the southeast side of the said river Neponset, to be improved for the use of the ministry there from time to time ; and the donors do declare, that the land aforesaid shall not be given or any way made over, alienated or sold, directly or indirectly, to any minister or any other person or persons whatsoever, as to them and their heirs, executors or assigns, but shall remain and continue to be improved for the use above-said.”
    Afterwards the town of Dorchester gave their consent, that the part of the town lying on the southeast side of Neponset river should be set off into a separate town, upon certain conditions, one of which was, “that all that land, or any of their estates inhabiting upon the land lately reserved for the maintenance of .the ministry in Dorchester, both it or they, shall not be charged to any common charges by our neighbours at Unquity.” The part of Dorchester above specified, was incorporated accordingly, in 1662, by the name of Milton.
    In 1663, a partition of the 400 acres “formerly laid out for the maintenance of the ministry in both towns,” was made by mutual consent, and the demanded premises are a part of the land set off to the town of Milton as their share, to be held in severalty ; and the town entered upon the lands set off, and held the same in severalty from the time of the partition until the year 1818, during all which period the lands were leased from time to time and the proceeds thereof were paid into the treasury of the town.
    In regard to the manner in which the town of Milton had managed the lands and applied the income thereof, until possession was taken by the parish, the demandants referred to the town records. By these it appeared, that from 1783 to 1794 the Rev. Nathaniel Robbins was taxed for “ministerial land ;” and in 1802 the Rev. Joseph McKean was taxed for “town’s land.” In 1756 the town chose a committee to let out the “church land” for one year. In 1757 it was voted that a committee let the “ church land ” for seven years, and that they reserve liberty to the town to build a house and barn on the “ church land.” In 1764 a committee was chosen to let out the “ church land ” for three years, and another committee, to see if it was best to fence off any part of the “ church land.” In 1758 it was voted, that the selectmen sell the timber and bark on some few trees at the south corner of the “ church land for the use of the town.” In 1762 it was voted, that S. Clap have old stumps and brush in the “church land.” In 1778 it was voted to sell all the wood on the “ ministerial land.” In 1782 a committee was chosen to lease out the “ ministerial land ” in such parcels, for such time and upon such terms, as they should think most conducive to the interest of the town. In 1783 the selectmen were appointed a committee to settle with any person who had cut or carried off any timber from “ the town’s ministerial land.” In 1785 and 1786 t was voted, that the proceeds of the sale of trees and wood on the ministerial land be applied to the payment of sums due from the town to R. Houghton, B. Wadsworth and Col. Bad-lam. In 1799 a committee reported, that they had leased two acres of the ministerial land to Lemuel Gulliver for one hundred years, for $ 126-34, which money they had received ; and the town voted that the committee pay the money into the town treasury. In 1807 a committee was authorized to sell off such part of the wood standing “ on the ministerial or town’s land,” as they might judge would be for the interest of the town, and likewise to give the overseers of the poor liberty to take such wood from the land for the use of the poor, as would best promote the town’s interest.
    The tenants likewise referred to several votes of the town. In 1751 it was voted that the committee “ chosen to let out the church land, should be empowered to let to Mr. Nathaniel Robbins twenty-five acres of the church land, besides the church meadow, during his being our minister.” On the settlement of Rev. Mr. Robbins it was agreed between him and the town of Milton, that his salary should be “ the sum of 65Z. 13s. 4d. lawful money, each year yearly, so long as he continues our minister ; the rent of Milton ministerial land to be part of said yearly sum.” In May 1779, it was voted, that “ the Rev. Mr. Robbins’s salary for the present year shall be made equal to the sum for which the ministerial1 land rented in March last.”
    The town of Milton composed a single territorial and congregational parish until February 1818, and transacted their municipal and parochial concerns under one organization. In 1817 the town voted that application be made to the legislature to incorporate as a parish, all the congregational inhabitants not belonging to any religious society out. of the town, and to provide in the act of incorporation, that all the duties and obligations of a parochial or ministerial nature, then binding on the inhabitants of the town, should devolve and be binding on the parish, and that all the rights and immunities of a parochial or ministerial nature then appertaining to the town, should enure to and vest in the parish. An act of incorporation was passed on February 19th, 1818, (St. 1817, c. 132,) in conformity to the vote, and the second section provides, that the parish shall be deemed to be successor to the town, as far as relates to parochial proceedings, rights, immunities, duties, contracts and undertakings ; “ provided that nothing herein contained, shall be construed to divert the use of the ministerial lands in said town, from the intention of the donors, as expressed in the original appropriation thereof, or as altering or affecting the title of any such real estate.”
    After the passing of the act of incorporation, the parish entered upon and held the demanded premises, by their officers and agents, leased the same from time to time for their benefit, and have ever since taken the profits of the same.
    Judgment was to be rendered upon a nonsuit or default, as the Court should direct.
    
      Jan. 10 th, 1831, in Suffolk.
    
    
      Stearns and Churchill, for the demandants.
    The vote in 1659, of the proprietors of common lands in Dorchester, was void as a grant, for uncertainty in regard to grantees. 4 Dane’s Abr. 126, c. 110, art. 3, § 9 ; Hornbeck v. Westbrook, 9 Johns. R. 73 ; Co. Lit. 3 a; 6 Vin. Abr. 264, Corporations, F, pl. 7, cites 7 Edw. 4. 30 ; Barker v. Wood, 9 Mass. R. 419 ; Beatty v. Kurtz, 2 Peters, 566.
    
    The inhabitants of Milton, either as claiming under a void grant, or as entering on vacant land, acquired a fee simple absolute, by disseisin. Buckler's case, 2 Co. 55 ; 1 Preston on Abstracts, 326 ; Blunden v. Baugh, Cro. Car. 302; Co. Lit. 330 b, 367 a, 327 b ; Higbee v. Rice, 5 Mass. R. 352. They are not even geographically the successors of “ the inhabitants that live on the southeast side of the river Neponset,” since a part of Braintree has been annexed to the town of Milton.
    The use which the town made of the land proves that they took it in their municipal character. For three quarters of a century there is nothing on their records showing that it was in any way connected with the support of the ministry, and it appears from their votes that they considered it as their property for all purposes.
    The grant is not within Prov. St. 28 Geo. 2, c. 9, respecting donations to pious and charitable uses.
    S. Hubbard and Metcalf, for the tenants.
    The original grant, whether void or not, and the partition in 1663, were for the use of the ministry, and the town of Milton entered on the land in their parochial character, under this partition, and with reference to it, and so held the land for one hundred and fifty years. Dillingham v. Snow, 5 Mass. R. 547 ; Austin v. Thomas, 14 Mass. R. 333 ; Cochran v. Camden, 15 Mass. R. 296 ; Jewett v. Burroughs, ibid. 464 ; Harrison v. Bridgeton, 16 Mass. R. 16 ; Medford v. Pratt, 4 Pick. 222 ; First Par. in Winthrop v. Winthrop, 1 Greenl. 208 ; Alna v. Plummer, 3 Greenl. 88 ; Sedgwick v. Peirce, 2 Root, 431 , Hanchett v. King, 4 Day, 360 ; Mervin v. Camp, 3 Connect. R. 35. There is no evidence of a perversion of the grant, unless in one instance, where wood was appropriated to the poor ; but so long as the town made suitable provision for the support of the ministry, it is immaterial whether the specific income of the land was or was not applied to that purposr. Thompson v. Cath. Cong. Soc. in Rehoboth, 4 Pick. 469.
    The grant was not void for want of definite grantees ; but the Court will hold that the grantors stood seised to the use of the inhabitants of Dorchester and Milton. Shapleigh v. Pilsbury, 1 Greenl. 271. And if the inhabitants on the south side of the river were not competent to take at the time, yet when they became so by being incorporated, the right vested in them. Pawlet v. Clark, 9 Cranch, 292; Society for Propagation of the Gospel, &c. v. Pawlett, 4 Peters, 502 ; Dartmouth College v. Woodward, 4 Wheat. 692.
    The tenants are successors of the town, or more properly are the same body in regard to this land. Their act of incorporation, in pursuance of the vote of the town, is an estoppel upon the town. Union Baptist Society v. Candia, 2 N. Hamp. R. 20 ; Parsonsfield v. Dalton, 5 Greenl. 217.
    
      
       See Thomas v. Marshfield, ante, p. 364.
    
   Putnam J.

afterward drew up the opinion of the Court. There is no doubt concerning the intention of the proprietors of the common lands in Dorchester. Whether their vote operated as a grant oi not, it is clear that they intended to appropriate the four hundred acres of land for the support of the ministry. The town of Milton was incorporated in three or four years after the vote of the oroprietors, and if they had no corporate capacity to take and hold the land before they were incorporated, they certainly bad afterwards. We find the town of Milton, immediately after they were incorporated, engaged in making partition of the land with Dorchester. They entered, claiming under the grant of the proprietors, which, although it may have been void by reason of the incapacity of the grantees to take, was yet good to show the extent and nature of the claim which was made under it.* The town recognized the pious use. They claimed to hold the fee sim pie estate in conformity to the intent of the proprietors of the common land, and have continued to be seised of the same until by their own consent the parish was incorporated and became the successor of the town.

We do not question but that the town might have acquired a title by disseisin, and an exclusive adverse occupation for a period beyond the statutes of limitation. But the facts in the case will not warrant that ground of argument, which has been so strongly urged for the demandants.

The town, in their records, have spoken of the property as church land ; sometimes as ministerial land ; and -in 1807, it is called ministerial or town’s land. In one sense it was the town’s land. They were seised of it, but it was a seisin for the use of the ministry.

The town has generally applied the rents directly towards the payment of the salary of the minister ; but sometimes the rents and income were paid into the town treasury. But the town were better enabled to pay the salary. It made no difference whether the very money which was received from the rents- was paid to the minister, or he was paid by other funds and the rents applied to other purposes.

And we are satisfied that this case does not come within the statute of 1754, relating to pious uses. The land was not granted to the use of the ministers, or to the poor of the church, or to the deacons. Nor was it necessary to call in the aid of that statute, for the town had a parochial corporate capacity to take and hold real estate, to enable them to carry on the work of the ministry.

There is no evidence of such a misappropriation as would have caused a forfeiture, if the land had been claimed for that reason by the donors. From the first to the last, the original pious intent has been recognized and pursued. At last, the town requested the legislature to incorporate the parish, with a provision “ that all the duties and obligations of a ministerial nature then binding on the town, should devolve and be binding on the parish.” The parish became bound to support the ministry as the town had been, and it had a right to the ministerial property to aid them. But if the demandants recover, they will take the fund and leave the duty to the parish. For the demandants claim to have the lands discharged from all obligation to appropriate the rents and income to the use of the ministry.

We think the former acts of the town are entirely contrary to their present claim. More than a century and a half has passed away since they entered into the land and took it as land that had been laid out for the use of the ministry. They did not then pretend, and they have never since declared, until the present claim, that they were seised for any other use. The parish, in virtue of the act of incorporation, has succeeded to the town in regard to all ministerial rights and duties and they have by their records recognized the original intention which they declare shall be carried into effect.

We are all very clearly of opinion, that under the circumstances proved in this case, the demandants are not by law entitled to recover. They are to become nonsuit, and costs are to be recovered by the tenants. 
      
      
        Shaw C. J. did not sit in the cause.
     
      
       See Tyler v. Hammond, 11 Pick 193; Beach v. Sutton, 5 Vermont R. 209; ante, 367, note 1.
     
      
       See First Parish in Medford v. Medford, 21 Pick. 109; First Parish in Shrewsbury v. Smith, 14 Pick. 297.
     