
    James Bott versus Thomas Perley.
    Proprietors of a township of land have authority to sell the undivided rights of individual proprietors for the payment of taxes laid by the proprietary, but not lots holden in severalty by assignees of individual proprietors.
    This was a writ of entry sur disseisin, in which the demandant counted upon a seisin in himself within thirty years, and of a disseisin by the tenant, of lots numbered 7 and 8 in the 24th range, and "first division of lots in Bridgeton. The writ bears date May 11,1810.
    The general issue being joined, a trial thereof was had before Thatcher, J., October term, 1812.
    The demandant, to support his title, read in evidence, although objected to by the tenant, the deed of John Farnurn and others, styling themselves a committee of the proprietors of Bridgeton to make sale of the delinquent proprietors’ lands in said township, pursuant to an act or law of the General * Court [ * 170 J of the province, 
       dated January 1, 1771, acknowledged the next day, and recorded April 12, 1794, purporting, in consideration of £5 17s. Ad. paid by Samuel Johnson, to convey to him in fee all the original right of Joseph Hate, including the lots Nos. 7 and 8 in the 24th range, and No. 9 in the 9th range, with the share of undivided land that might thereafter be laid out to the said right, reserving the right of redemption to the original proprietor, his heirs or assigns; also the deed of Samuel Johnson to Moody Bridges, dated May 21, 1773, and recorded April 12, 1794, conveying the demanded premises in fee; also the deed of Moody Bridges to Thomas Porter, dated May 4, 1778, and recorded June 22, 1779, also conveying the demanded premises m fee; also the deed of Thomas Porter to William Creed, dated June 7; 1780, and recorded July 3, 1783, conveying the demanded premises in fee; also the judgment, execution, and extent, in favor of the demandant and against the said Creed, which are recited in the preceding case of this demandant against" Joseph Burnell.
    
    The demandant also produced an authenticated copy of a paper referred to in a statute of the commonwealth, passed March 13, 1783,  relative to certain records of the proprietors of Bridgeton, which liad been, destroyed by fire October 2, 1780, from which it appeared that the lots Nos. 7 and 8 in the 24th range, and No. 9 in the 9th range, were drawn and set off, prior to the year 1769, to Joseph Wale.
    
    The tenant, to disprove the seisin of the demandant within thirty years, offered the testimony of two of the appraisers, named in the proceedings upon the execution against Creed above referred to, to prove that neither the sheriff *nor the [*171 l appraisers viewed or entered upon either of the lots demanded ; but that all the said proceedings under said execution ■were had upon another lot, being one of the lots named in said proceedings, and upon that only. This testimony was rejected by the judge.
    The tenant then proved that Isaiah Ingalls, Enoch Perley, and Robert Andrews, were duly chosen a committee of the proprietors of Bridgeton, to make sale of the lands of delinquent proprietors for taxes; that said committee were duly sworn, and that sundry taxes had been previously voted by said proprietors upon each and every lot, severed and located as aforesaid in said plantation of Bridgeton, to the amount of £ 1 14s. in the whole. No particular assessment was shown ; but it appeared that an equal sum was voted to be raised upon each lot located and severed as aforesaid ; and it did not appear that any taxes were voted upon the lands, which still remained in common and undivided amongst the said proprietors.
    The tenant also proved that the said committee gave notice that said taxes had been voted, in the newspapers mentioned in the said act of 1768, and that the lands of delinquents would be sold according to law; but it appeared that the last notification was only two months and twenty days next before the day appointed for the sale : whereas the act required three months’ notice.
    The tenant then offered in evidence a deed of the last-mentioned committee, dated November 18, 1788, and recorded, conveying the lots Nos. 7 and 8 in the 24th range, and No. 9 in the 10th range, to Enoch Perley in fee, subject to the right of the delinquent proprietor or owner to redeem the same ; also the deed of the said Enoch Perley to Thomas Perley, the tenant, dated August 13, 1791, and recorded October 22, 1794, conveying the demanded premises in fee; also the last will of Joseph Hale, the original proprietor of the lots demanded, proved November 22, 1778, by which he devised the residue of his estate (the demanded premises not being specifically devised in the said will) to Joseph Hale, his son; also the last will of Joseph [ * 172 ] * Hale, the devisee in the will before mentioned, which was proved July 7, 1795, by which he devised the residue of his estate (the demanded premises not being specifically devised) to Joseph Hale, his son ; also the deed of the last-mentioned Joseph Hale, dated February 8, 1811, and recorded the 15th of the same month, since the commencement of this action, releasing the demanded premises to Thomas Perley, the tenant; — all which were rejected by the judge, who directed the jury, upon the foregoing evidence, to return their verdict for the demandant, which they did accordingly.
    The tenant filed his exceptions to the said opinions and directions of the judge, and to the admission of the said deed of Farnum 
      and others, and to the rejection of the evidence offered on his part; praying that the verdict might be set aside, and a new trial granted.
    The cause was argued, at the last May term, upon the exceptions, by Hopkins for the tenant, and by Mellen and Whitman for the demandant; and the action being continued for advisement, the opinion of the Court was delivered at this term by
    
      
       “ An Act to enable the proprietors of three several townships, &c., to make sale of so much of the delinquent proprietors’ rights as is necessary to defray the charges of said townships; ” enacting that, if the assessors chosen by the said proprietors, &c., have or hereafter shall levy or assess a tax on the land of said proprietors, agreeable to a vote of said proprietors, and such proprietors shall neglect or delay to pay, &c., in that case it shall and may be lawful for the assessors, &c., to sell so much, and no more. of the delinquent proprietors’ land as they shall judge necessary to pay and satisfy such rates and taxes; reserving to said proprietors a right of redemption &c. — Passed in 1768.
    
    
      
      
        Special Laws, vol. i p. 48.
    
   Sewall, C. J.

The title of the demandant, which is the extent of an execution, upon a judgment recovered by him against William Cr;ed, has been stated and examined in the case decided at this term, between the same demandant and Joseph Burnell. The difference in favor of this case is, that the premises demanded in this action are lots which had been drawn and assigned to the right of Joseph Hale, an original proprietor of Bridgeton; and this right had been conveyed to Creed, and described as including these lots. The demandant, therefore, showing the extent and return of his execution, maintains his title, at least against Creed, and all persons claiming under him. Upon this evidence, too, he shows a constructive, if not an actual, seisin of the premises demanded.

The extent of Botfs execution bears date on the 27th of December, 1783. The deeds and evidence of title offered *for the tenant at the trial are subsequent, and [ * 173 ] must avail him, if at all, as a title acquired against Bott.

For as to the title attempted to be derived from Hale, by a deed of release from Joseph Hale to the tenant, dated after the action was commenced, the tenant would not have been defended by that evidence if it had been admitted.

In 1771, the committee of the proprietors of Bridgeton for the time being conveyed to Samuel Johnson all the right of Joseph Hale, as the right of a delinquent proprietor, including and mentioning the demanded premises as lots drawn or assigned to that right; and, in 1773, the same right was conveyed by Johnson to Bridges, and, on the 4th of May, 1778, by Bridges to Porter, and by him, on the 7th of June, 1780, to W. Creed.

Without examining the validity of the conveyance by the committee, or the evidence of their proceedings, we incline to the opinion that the demandant proves a constructive seisin in Johnson and in those claiming under him, from the date of the deed to Johnson, although the same was not registered until April, 1794. The result of which would be, that the will of Joseph Hale, the original proprietor, proved in November, 1778, containing a resid uary devise to his son Joseph, which might be construed to in elude his right in Bridgeton, had no operation as a conveyance to the son.

It may be objected that the deed from the committee to John-¡on, and the other deeds by which the title is derived to Creed, were not registered until 1794, after the date of the will and the death of the testator; and there was no evidence of an actual entry under those deeds.

But we think it very clear, as the son proves no seisin under the devise to him, that still the extent of Bott’s execution in 1783, and the subsequent registry of the title deeds, by which the tide from Johnson is derived to Creed, must prevent the operation of the will of Joseph Hale, the son. This was proved in 1795, and contains a resi.duary devise to his son Joseph Hale; and it was [ * 174 ] from this last devisee * that Perley, the tenant, obtained his release. The proceedings of the committee, and their deed to Johnson, and the subsequent deeds under which the title is derived to Creed, and the extent upon the execution against him, prove a seisin in the demandant, sufficient against Joseph Hale, the son, and all claiming under him, there being no evidence of an entry on his part, to avoid the consequences of these proceedings.

There is no suggestion of evidence of an entry on the part of Hale, the son, and we think the tenant is not entitled to a new trial, for the rejection of the evidence upon which he relied to show a title derived from Joseph Hale, the original proprietor.

I may observe, further, that the proceedings of the proprietors of Bridgeton, in making their allotments, and of their committee in selling the rights of delinquent proprietors, appear to have been confirmed by an act of the General Court in 1783. In this view of the defence, our attention has been called to the proceedings of the committee, from whom Enoch Perley received a deed in November, 1788, and to the effect of that deed, as conveying a title, which is to avail against the present demandant, if at all, as the delinquent proprietor of the lot in question.

With the rest of the evidence offered for the tenant at the trial, and rejected by the judge, was the deed, dated November 18, 1788, from Ingalls and others, a committee of the proprietors of Bridgeton to Enoch Perley, and the deed, dated August 31, 1791, from Enoch to Thomas Perley, the tenant. Under these deeds, if effectual to that purpose, the tenant derives to himself a title in the premises in controversy; and the premises have been sold away from the demandant.

By the first of these deeds, Ingalls and others, professing to act in their capacity of a committee appointed by the proprietors of Bridgeton to make sale of the delinquent proprietors’ lands, pursuant to an act or law of'the General Court of the commonwealth, sell and convey to Enoch Ferley * three [*175] lots of land in Bridgeton, two of which are the lots of land described in the demandant’s writ; and these are sold sub ject to the proprietor’s or owner’s right of redemption.

There is no law of the commonwealth, and I believe 1 may say confidently, there never was any general or public law, either of the colony, the province, or the commonwealth, which authorized the sale of appropriated lots, such as had been severed and located by a committee of proprietors acting as a corporation ; such a sale being adopted as a mode of enforcing the collection of taxes assessed by the proprietors, by virtue of their authority to, manage their common and undivided lands. Proprietors of common and undivided lands had, indeed, by a provincial act, authority to grant and order any suitable sum or sums of money, to be raised and levied upon their several rights, &c., according to their interests and shares; and when such assessments had not been paid, after certain periods of time had elapsed, and upon certain notices and advertisements directed by the act, the committee of the proprietors of such common lands were fully empowered, from time to time, at a public vendue, to sell and convey away so much of such delinquent proprietor’s right or share in said common lands as would be sufficient to pay, &c. This act is revised by a statute enacted under the commonwealth, which contains similar provisions, and restricted altogether to the lands or estate, and to the proprietors’ shares thereof, holden in common.

The sale, however, to Johnson, in 1771, and that upon which the tenant relies, in 1788, are supposed to be justified by the provisions of a special law, enacted under the provincial government in 1768. The sale to Johnson purports to be a sale of a proprietor’s share or right in the township, including the lots drawn and to be drawn thereon ; and- fortified as it is with the depositions of the committee, placed by the act of the General Court upon the same footing, in point of evidence, as the original records of the proprietors, which had been destroyed by fire, it must be understood * that this sale was for proprietors’ charges, and to col- [*176] lect one or more assessments duly made upon the original share or right in the township conveyed by that deed, and in consequence of the delinquency of Hale, the original proprietor, t« answer such assessments.

According to the evidence admitted, as introductory to the deed of Ingalls and others to Enoch Perley, taxes had been voted by the proprietors, and assessed by them, at a certain rate per lot, upon every lot which had been located and severed, and upon those lots only, arid not upon the lands remaining undivided and in common. The assessment was required to defray expenses incurred by the proprietors in the management of their common property. The owners of the lots might or might not be parties to these expenses, or to the assessment.

But it can never be admitted that the proprietors of Bridgeton had an authority to assess in this manner, and for these purposes, not the rights or shares of those who retained an interest in the proprietary, but an arbitrary power, to be exercised over all the lots and locations in the town, of which many, if not all, might be holden by titles wholly unconnected with the remaining proprietary rights. The power of selling, to enforce the payment of an assessment upon proprietors’ shares, may perhaps extend to such lots as, although severed, remain in the hands of the original proprietor; but here the tax itself seems to have been assessed without any authority. None was given, we think, by the private act cited, any more than by the public statute, relating to proprietors of common and undivided lands. The contemporaneous construction contended for by the tenant is against him in this view of the case. The sale to Johnson is an example of that construction. That was an assessment upon the proprietor’s right or share, and a sale of the whole right or share, as belonging to the proprietor, including his lots severed, as well as his interest in the common and undivided lands. If the lots severed had been previously sold and [ * 177 ] conveyed, perhaps as to those lots the *sale would have been without effect. But certainly, as to the assessment and sale, these were conducted as charges upon the original pro prietor, as a lien against him and all claiming the proprietary right under him ; not as a charge against the owner of a lot in the township, separated from the undivided lands.

Upon the whole, we see no advantage that could accrue to the tenant from a new trial, even if any of the evidence rejected was in strictness admissible, as competent or relevant. Supposing it admitted and fully considered, it proves no title in himself, derived either from Hale or from the proprietors’ committee; and a disseisin of the demandant by him being fully proved, there must be

Judgmen :n the verdict. 
      
       Vide Mass. L. vol. ii. 1036.
     
      
      
        Stat. 1783, c. 39, § 5.
     