
    Paul Jewett versus Giles W. Burroughs.
    Where, in a new town, a Congregational minister was settled as the minister of the town, and, after his death, another minister of the same denomination was settled, this latter was held to succeed to all the rights of the former minister, and to be entitled to possession of the ministerial lands of the town; although a majority of the town were then of other denominations or persuasions.
    This was a writ of entry sur disseisin, in which the said Jewett counts upon his own seisin, as minister of the first parish in Lebanon, in this county, and in right of his said parish, of and in a certain tract or parcel of land in said Lebanon, and upon a disseisin by the said Burroughs within thirty years.
    The general issue being pleaded and joined, the action was submitted to the determination of the Court, upon the following facts agreed by the parties: —
    The tract of land described in the writ was, in the year 1762 drawn as the ministerial lot in the division of lands of the proprietors of Lebanon. In 1765, the Rev. Isaac Hasey was invited by the said proprietors, and was ordained and settled as a Congregational minister in said town, pursuant to said invitation; and he occupied said lot as such minister, until his death in October, 1812.
    * On the 1st of March, 1787, an act of the General Court was made and passed,  transferring the contract with said Hasey from said proprietors to the said town of Lebanon; and the said act is to be considered as a part of this case.
    On the 16th of February, 1814, a certain resolve was passed by the General Court, authorizing B. Green, Esq., to call a meeting of the Congregational parish in Lebanon, for the choice of. parish officers ; and at a meeting held in pursuance of said authority, on the 7th of March, 1814, parish officers were chosen.
    On the 12th of said March a warrant was duly issued, calling another meeting of said parish on the 28th of the same month ; at which meeting the said parish gave to the plaintiff Jewett a call to settle with them in the ministry ; and he, having accepted the said call, was, on the 13th of the following April, ordained in usual form, as the Congregational minister of said parish.
    The inhabitants of said Lebanon, at the time of the said first par ish meeting, consisted of Congregationalists, Baptists, and persons of other denominations. - The number of qualified voters in the town was 375, of which 138 Baptists had then filed certificates in the town clerk’s office, according to the provisions of the “ Act respect ing Public Worship and Religious Freedom.” 
    
    After the death of said Hasey, and prior to the application to the legislature for the above-mentioned resolve, at the request of some of the inhabitants of the town, who were Congregationalists, and who had not filed certificates as aforesaid, a* meeting of the town was held, to consider the expediency of settling a minister; at which meeting those who had filed certificates as aforesaid attended, and, with others, voted on the question of settling a minister, which was carried in the negative by a major vote of the legal voters of the town, the Congregationalists being a minority. There is no act or law, incorporating the Congregational parish, or first parish, in Lebanon.
    
    * Judgment was to be rendered on nonsuit or default, as the opinion of the Court should be upon the foregoing statement.
    
      Mellen, for the demandant.
    It is agreed that the lot in question is a ministerial lot, and that Mr. Hasey was the first Congregational minister, and occupied this lot during his ministry. It will not be denied that, after his decease, the parish had the custody of this land. The demandant claims the possession of it, as being the settled minister in the town, invited and settled by those of the inhabitants who had not seceded as Baptists.
    The statute of 1811, c. 6, operates as a general act of incorporation, as to those who withdraw and file certificates pursuant to that law ; in effect, giving them all the benefits of a special act of incorporation. Such was the construction given by the legislature, in 1814, by the resolve authorizing Mr. Green to call a meeting of those who had not seceded.
    As those who had filed their certificates, thereby gained all the advantages which they could have had from a special act of incorporation, those who remained, thereby acquired the same rights which they would have had if the seceders had been incorporated. They became, in effect, the first parish; and the demandant, as their minister, became the successor of Mr. Hasey, and so, entitled to the occupancy and profits of this land during his continuance in office. 
    
    
      Holmes, for the tenant.
    The grant of this lot of land for the use of the ministry was intended for the benefit of the town, then constituting one parish, and not for the personal benefit or advantage of the minister for the time being. It enured to the use of the town as a parish, and of its legal successor as a religious corporation.
    The Congregational society in Lebanon is not the town, nor is it the first parish. A minority of the town, as this society is, cannot claim to be the town; and they have not been incorporated as the first parish. The resolve of 1814 *had not that effect; it was merely authorizing a meeting of a society then existing. They are not a' corporation; or, if they are, their legal name is the first parish, not the Congregational parish. But they have never acted under their legal name, and the demandant is not, therefore, the minister of the first parish. But there is, in truth, no second parish. They could not act, then, in parochial concerns, but as the town. But they are a very small minority of the town. Suppose a minority settle a minister in such a town, and he dies; to whom does the parochial property pass ? If to that minority, it is perverted to a different use from that in tended in the original grant.
    
      
      
        Stat. 1786. c 72. — 1 Mass. Spec. L. 155
    
    
      
      
        Stat. 1811 c. 6.
    
    
      
       2 Mass. Rep. 500, Weston vs. Hunt. —10 Mass. Rep. 93, Brown vs. Porter. — 7 Mass. Rep. 545, The Second Parish in Brunswick vs. Dunning. —13 Mass. Rep. 190 The First Parish in Shapleigh vs. Gilman.
      
    
   Parker, C. J.

The demandant sues for possession of a lot of land, of which he declares himself to be seised in fee, in right of the first parish in the town of Lebanon, averring that he is the settled, ordained minister of that parish.

By the facts agreed by the parties, it appears that no parish has been incorporated within the town of Lebanon, either by territorial limits or otherwise ; and therefore it is contended by the tenant that there is no first parish, and so no such title can have accrued to the demandant as he has set forth. And it is perhaps true that, unless there are two parishes within the town of some kind, there cannot be a first parish within the meaning of the statute of 1786, c. 10, § 4, which provides that, when one or more parishes or precincts shall be set off from a town, the remaining part of such town shall be the principal or first parish.

We say,perhaps this is true; for we are not satisfied that, within the equity of that provision, the same consequences will not attach when, under the “Act respecting Public Worship and Religious Freedom,” a large number of the inhabitants of any town, which has not been divided into parishes, shall secede from the parochial concerns of the town, in the manner provided by that act, without being incorporated as a parish. But it not being necessary to decide this question in the present case, we forbear to give any opinion upon it, until a proper occasion shall arise,

* Every town within this commonwealth, which acts as a town in the settlement and maintenance of a minister, and in erecting and keeping in repair a house for public worship, may lawfully be considered a parish as well as a town, to all essential purposes, the duties incumbent upon parishes being required of them by the laws, and all parochial property being held by them in their corporate capacity. It is competent, we apprehend, for the inhabitants of towns thus situated to proceed parochially, in all matters touching the support of public worship, and the settlement and maintenance of ministers; and it is believed that some towns, in early times, before any division had taken place by the incorporation of any parish within their limits, conducted their parochial business at distinct meetings from those of the towns, and had parish officers in the same manner as if they had been distinct corporations. And this would seem often to be necessary, whenever there were Quakers, or others exempt from parish duty, within the town. For otherwise these might, by their votes, influence the proceedings, and prevent the proper administration of parochial concerns.

By the provincial act of 1758, it was provided that, where one half, or more, of the assessors or collectors of a town should be Quakers, such of the inhabitants as were not Quakers might proceed to the choice of an equal number of other persons not Quakers; who, with those of the first election who were not Quakers, should be qualified to assess and collect taxes for the settlement and support of the ministry, and for building and repairing houses for public worship within such town.

A minister of a town might, therefore, well call himself the minister of the parish, in a suit wherein he claims possession of property jure parochice; for it is as a parish that the town is entitled ; and he is, in truth, settled over a parish, as well as a town — all the inhabitants of the town being members of the parish, unless they have disconnected themselves therefrom in some legal way. There seems, *then, to be no objection to the action, on the ground that the demandant claims in right of a parish ; and the denominating it the first parish is immaterial, because it is at most a misnomer, which can be taken advantage of only in abatement.

But it is further objected that the demandant was never lawfully settled over the parish or town of Lebanon ; because the warnings, under which the meetings were held, at which the parish was organized, and the vote was passed to settle him, was of the Congregational parish in Lebanon; and it is said that, in consequence of this warning, none but Congregationalists were authorized to attend and vote.

If, however, the town was a parish, it was a Congregational parish, for the former minister, Mr. Hasey, was expressly settled as a Congregational minister, and continued such until his death in 1812. Nor is there evidence of any act, tending to show a' change in. the corporation in this respect. It is stated that a majority of the inhabitants were, at the time of the demandant’s settlement, of the denomination of Baptists, or of some other persuasion different from the Congregational. This may be true, and still the parish be Congregational. If the majority had been incorporated, this would iiave left the minority a parish of the Congregational order, with all the privileges of the first parish; and a secession of the majority, without an incorporation, would be attended with the same consequence, as to every thing but the name. At the meeting which was warned, all the qualified voters within the town, except such as had availed themselves of the liberty secured to them by the act of 1811, had a right to vote, whether Congregationalists or not; for many persons may belong to a Congregational parish, who are not themselves of that order ; they being subject to taxation for the support of public worship, unless they have taken the measures to become exempt which aré prescribed in the said act. There is no evidence of the exclusion of any such persons from voting; and if they declined attending, from a supposition that they had no right * under the warning, their ignorance or mistake of their rights cannot defeat the measures of the parish, which were regularly adopted.

It is in this view that we consider the resolve of the legislature, which passed February 16, 1814, authorizing B. Green, Esq., to call a meeting of the Congregational parish, as valid. And there can be no doubt of the wisdom of that measure. For it appears that, at a town meeting called before, for the express purpose of determining whether a successor to Mr. Hasey should be settled or not, it was voted not to settle a minister; and at this meeting nearly one half of the voters had filed certificates, the effect of which was to exonerate them from all parochial burdens. Thus the town, or parish, were made liable to a penalty for not having a settled minister, and yet were prevented from doing their duty by the interference of those who had no right to interfere in the parochial affairs of the town; and who probably, by virtue of the statute of 1811, would not be liable to any part of the penalty which might be exacted for the non-performance of this duty. The legislature, seeing this state of things, wisely directed a meeting of the Congregational parish to be called ; intending, no doubt, to exclude those from voting, who had voluntarily withdrawn from the parish, and refused to bear any of its burdens, but leaving the privilege of voting to all, of whatever persuasion, who had not surrendered it by their own act. We consider the parish to have been established and organized by the meetings had under that authority; and as the demandant was regularly settled as the minister, he has a right to recover the land which belongs to the parish.

Tenant defaulted. 
      
      
        а) Minot vs. Curtis & Al. 7 Mass. Rep. 441. — Brunswick vs. Dunning & Al. 7 Mass. Rep. 445. — Sutton vs. Cole & Al. 8 Mass. Rep. 96.
     
      
      
        Cochran vs. Camden, ante, 296. — Dillingham vs. Snow, 5 Mass. Rep. 5, 547. — 3 Mass. Rep. 276. — Medford vs. Pratt, 4 Pick. 222.
     
      
      
        Ancient Charters, &c. 785
     