
    APPEAL OF THE TRUSTEES OF THE PROPRIETORS’ SCHOOL FUND OF PROVIDENCE.
    Where a committee of a municipal corporation is empowered to lease certain lands of the corporation, a lease signed by the majority of the committee is good.
    The lease being an “ancient deed” and possession having been taken and acquiesced in, under it, the recitals in the lease are prima facie evidence of the facts recited in it.
    A lease “with every privilege of mines or minerals,” gives the right to open' new mines.
    A lease of charity lands by trustees, for a period of 999 years at a fixed rental, is not necessarily void.
    Appeal from the Common Pleas of Lucerne County: In Equity, No. 277, Jan. Term, 1884.
    This was a bill in equity, brought by the appellants, against William Jessup, trustee of Joseph Bellows, deceased, and others, to declare null and void a lease for 999 years; and for an account.
    
      The report of the Master was as follows :
    
      To the Honorable the Judges of said Court:
    
    The amended bill in this case was filed July 26th, 1882, and seeks the interference of the Court to set aside and declare void a lease made of public land situate in the present city of Scranton, and entered into in 1796. The Park Coal Company Association, defendant, went out of existence before the hearing, and all the other defendants died, except ~W. H. Jessup, trustee, who alone appears and takes defense.
    From the allegations of the bill, the admissions of the answer and the evidence introduced I find the following facts :
    
      First. — On the 8th of September, 1796, a lease was entered into in the names of James Bagley, Stephen Gardiner and John Mills, of the one part, and Joseph Fellows, of the second part, all being of the town of Providence, in said County of Luzerne, whereby said parties of the first part, in consideration of the annual rental of four pounds and four shillings currency of Pennsylvania, and payments of taxes, demised and leased unto said Fellows, his executors, administrators and assigns, for the term of nine hundred and ninety-nine years, certain tracts of the public lands situate in said town of Providence, containing one hundred and five acres, and including therein what is known as the Bridge lot of about fifty acres, “with every privilege * * to the premises belonging or in any way appertaining, whether ways, water courses, mines or minerals.” Said lease, copy of which is found in the answer at page 4, and among the printed evidence and exhibits, page .62, was not recorded until August 8th, 1866, and is executed by Bagley, Gardiner and Fellows alone, the other lessor, Mills, having failed to join in its execution. And inter alia it recites “the said James Bagley, Stephen Gardiner and John Mills (as) being legally appointed a committee and duly authorized by the proprietors of the said town of Providence to let and lease out the public lands of said proprietors of and lying in the said township of Providence aforesaid, for such a term as they the said committee should think proper.”
    
      
      Second. — There is no evidence as to the value of these premises in 1796, but it is shown that as late as 1833 land in the immediate vicinity, including buildings, sold at the rate of less than $6.00 per acre.
    
      Third.- — Pursuant to the “Act for offering compensation to the Pennsylvania Claimants of certain lands within the Seventeen Townships in the County of Luzerne and for other purposes therein mentioned,” passed April 4th, 1799, and the supplements of March 15,1800, and April 6,1802, there was surveyed to> James Abbott and John Taylor, the Public Committee of the Township of Providence, said tract of fifty acres (known as the Bridge lot), and a certificate therefor issued dated January 21, 1804, followed by a patent for the same, 17 July, 1812, “to John Carey and John Taylor, Town Committee, and their successors in trust, for the use of the Proprietors of the said Township of Providence, their heirs and assigns forever.”
    
      Fourth. — On 2d April, 1831 (P. L. 867), an act was passed reciting that the townships of Wilkes-Barre, Plymouth and Hanover, three of the seventeen townships of Luzerne County, had laid out certain lots for religious, literary and charitable uses, &c., that committees had annually been appointed by the proprietors of the respective townships to take care of and lease the said lots, and that the committees have from time to time sold and conveyed and let upon leases for a long term of years, great parts of said lots, but inasmuch as the said committees were not vested with the legal title, the sales and leases made by them are invalid. Therefore it was enacted that the sales, leases and contracts be confirmed as fully as though said committees, had been invested with the legal title. This act was subsequently extended to the township of Providence by act of 14th of April, 1835 (P. L. 276).
    
      Fifth. — By act approved 10th February, 1869, the present plaintiffs were incorporated and were vested with all the rights; remaining in the trustees under the act of 14th April, 1835, already referred to.
    
      Sixth. — Joseph Fellows, the party mentioned in the lease of 1796, went into possession of the premises and so remained until 11th August, 1815, when his interest therein was sold by the Sheriff to George Denison, Esq., and by the latter conveyed October 22, 1815, to Joseph Fellows, Jr., who with others claiming under him have maintained possession ever since and paid the rents up to and including the year 1867.
    
      Seventh. — On 10th October, 1868, Joseph Fellows, (Jr.,) conveyed his whole estate to John Heermans, trustee, (see Exhibit 3, page 71) reserving to himself all moneys received during his life and directing that thereafter the residue be distributed according to a writing supplementary, by which latter he subsequently named a number of nephews and nieces as the 'beneficiaries. John Heermans having resigned the trust, ~W. H. Jessup was on March 31, 1881, appointed in his stead.
    
      Eighth.- — Joseph Fellows, (Jr.,) died in the year 1873, having made his last will appointing said John Heermans with Ebenezer Leach his executors, both of whom are now deceased.
    
      Ninth. — The premises in dispute are located not far from the business center of the present city of Scranton.
    It would seem coal was mined therefrom but only in inconsiderable quantities as early as 1810 but the premises were principally used for farming purposes up to 1860, when active mining was begun and has since been maintained. Owing to the phenomenal growth of the city of Scranton, this property increased immensely in value. The greater portion of the premises, reserving the coal, has been disposed of in lots for building purposes, in three instances by contract for conveyances in fee, but in all, other cases simply by leases co-terminous with the lease of 1796. The coal remaining on the premises has been disposed of by the defendant trustee in part to the D. L. & "W. N. B. Go., and in part to the Bridge Coal Company, limited. Statements showing amounts received and amounts due on lots sold will be found on pages 45 and 48 of evidence and exhibits.
    
      Tenth.- — On the 13th March, 1865, the then trustees of the Proprietors of Providence, conveyed said Bridge Lot to Joseph Griffin in fee for $300, which conveyance was, however, set aside subsequently by proceedings in equity to No. 3 February Term, 1869.
    Hpon this state of facts it is claimed that the lease of 1796 is invalid, and that so far as any interest yet remains in the estate of Joseph Fellows, the prayer of the bill to set the same aside as to the Bridge lot of fifty acres, and for an account, should be granted, saving the rights of sub-lessees.
    When it is considered how insignificant is the return from this property as compared with its present great value, and what magnificent results could be accomplished for the education of the youth of the populous city of Scranton, could the full present avails be applied to the purposes intended by the donors, it certainly is not to be wondered at that the present trustees of the school fund should conceive it to be their duty to take every legitimate measure to restore this estate to their control for educational purposes. But the disposition of the case by the Master and the Court cannot or ought not be affected by considerations either of expediency or public welfare if the same be opposed to vested private rights. The plaintiffs,, however, say that they have made out a case that entitles them to equitable relief.
    They submit as pertinent to the controversy a variety of propositions which in substance may be stated as follows :
    (1.) That over all charities the Court of Chancery is paramount trustee, and will exercise control over the charity estate and the acts of the nominal trustee.
    (2.) That a long lease of charity lands at a stationary rent is prima facie a breach of trust as being for an unreasonable term, and the burden of proving its reasonableness is on the lessees.
    (3.) That the lease in question is equivalent to an alienation and cannot be sustained in the absence of express power given by the donors of'a decree of a court of chancery.
    (4.) That the donors or founders of this charity were the proprietors of the township of Providence ; that the certificate and patent reciting the town committee as owners, &c., did not create the trust but recognized it as already subsisting in said committee.
    (5.) That there was no power in the Legislature to alter the conditions of the trust or enlarge the powers of the trustees. If the original trustees had no power of alienation the State could not give it to them.
    
      (6.) That the only effect of the acts of 1881 and 1835 was to confirm leases and sales made by the several town committees subsequent to 1800 and otherwise invalid for want of legal title in the committees at the time of making the same.
    (7.) The want of power in the lessors is not cured nor the rights of the cestuis que trustent prejudiced by lapse of time and payment of rent.
    . (8.) That there was no title in the committee for the lands in controversy at the time the lease was executed, and the same was therefore a nullity ; the certificate and patent from the State having issued long subsequently.
    (9.) That the lease is invalid for the further reason that it is signed by two only of the three trustees, and that the power, if any existed, could only be exercised by them all jointly.
    (10.) That if the lease of 1796 contemplated a grant of the right to mine and remove coal, it was a breach of trust on the part of the committee who made it, destructive of the reversion, and if it did not contemplate such grant, then the removal of the coal is such waste by the lessees as must work a forfeiture.
    On the part of the defendant it is claimed that the confirming acts of 1831 and 1835, the continued possession, the payments of rents and the decision in Griffin vs. Fellows, infra, rule the case in favor of the defendants.
    Certain of the questions raised here were before the Supreme Court in a suit involving this identical lease, (Griffin vs. Fellows, 32 P. F. S., 114), and before proceeding further it is proper to consider the effect of the ruling in that case.
    The action was one of ejectment at the instance of Joseph "W". Griffin,' the then grantee of the trustees, but whose conveyance was subsequently set aside. It was held by Judge Elwell, whose opinion was adopted by the Supreme Court, that all leases before made by the Committee of Providence Township were confirmed and declared valid; that if there were no confirming Act of Assembly, there would arise after this lapse of time a presumption of confirmation by the lessor ; that from such lapse of time and from the notoriety which always attends the operations of mining coal it may fairly be presumed that not only the committee but all the inhabitants of the township had full knowledge of the acts of the tenant in mining, &c.; that upon the face of this lease there is granted the absolute right to take minerals from the land demised.
    As respects this decision it is urged by the plaintiffs that their standing in Court as trustees of a public charity is much more favorable than the plaintiff’s in the case cited ; that the latter was not in a position to assail the power of the committee nor the Act of Assembly confirming their lease, since his own title was open to same objection; that the question there involved was the effect rather than the validity of the lease in dispute; and that at least several of the propositions' now submitted were neither discussed nor considered by the Court in disposing of the case of Griffin and Fellows.
    This view is entitled to proper weight, but upon due reflection I am consta ained to hold that the case is conclusive against the present plaintiff’s 7th, 8th and 10th propositions, and probably the 3d, 5th and 6th propositions also. If correct in so holding, it is decisive against the plaintiff’s whole case; but out of deference to the urgent and able argument of the plaintiff’s counsel, I am disposed to briefly further consider the several remaining propositions, including those which raise the question of power in the Legislature to authorize trustees to sell and lease as well as to confirm sales and leases already made.
    The questions presented are all of the last importance and far reaching in their consequences, for a decree rescinding the lease in question would not only prove well nigh ruinous to the Fellows’ estate, but throw into great confusion and seriously unsettle titles to vast tracts of land within the seventeen townships, which have been held for nearly a century under sales and leases made by their respective committees. .
    The possibility of such results well illustrates the propriety of the general rule that a Court of Equity will not interfere to rescind a contract except in a clear case, and one free from doubt. While inadequacy of price, improvidence, surprise and mere hardship, have each been held sufficient to refuse specific performance, yet not one of these nor all combined furnish adequate reasons for judicial recision of a contract. Bor such .action it is •declared that nothing hut fraud or palpable mistake affords sufficient grounds. (See Nace vs. Boyer, 3 Cas. 109, Graham vs. Pancoast, Ib. 97, Lynch’s Appeal, 1 Out. 349). But it is contended that public charities are peculiary within the protection of equity and that the rule above stated does not obtain in 'full force. • This view is presented in the plaintiff’s 1st and 2d propositions. They raise questions which are novel and of first impression so far as any adjudication by the Courts of this State is concerned. In England it has been held in a number of cases that the action of trustees of charity estates in dealing with other parties was to be understood as subordinate to the control of the Court of Chancery and subject to its approval as paramount trustee and in several cases of leases for 99 years when they had already run for the greater part of the term, the Court interfered to set them, aside on the ground that they did not provide for probable increase of value, the making of improvements, etc., and were therefore improvident. (See Attorney General Green, 6 ves. Jr. 452, Attorney General vs. Griffith 13 ves. Jr. 571, Attorney General vs. Owen 10 ves. Jr. 555), I doubt whether our Courts are ready to go the length of the cases cited or to adopt without qualification the plaintiff’s first two propositions. But conceding their-general correctness, it is to be observed that the cases cited were those of husbandry leases while the one under consideration has been decided to include mining rights (Griffin vs. Bellows supra). Except for that decision I am free to confess that I would hold that the lease gave no right to mine the coal; but it has been decided to be a mining lease, and as such we are bound to treat it.
    Now it is manifest that the objections that are urged against a husbandry lease for a long term as unreasonable do not and cannot apply to mining leases. The latter are almost universally made to run perpetually. The vast outlay necessary to develop and operate a coal property would seldom if ever be warranted under a lease for a term corresponding with the ordinary husbandry lease. It is therefore apparent that the cases are clearly distinguishable, and that the rule contended for cannot be of universal application.
    
      I therefore hold that the lease is not invalid as being for any unreasonable term at a stationary rent, nor can I say that the rent reserved was so clearly inadequate as would warrant the Court in setting the lease aside. In the light of the present state of affairs, of course this rent seems insignificant, but looked at as things were in 1196, the aspect is different.
    As matter of history the existence of coal was then well known and a few of its uses understood, yet by reason of the cost of production and want of a market it was regarded of very little value.
    The region where these premises lay was sparsely settled, and land was cheap ; and it is proved that nearly forty years later a tract, a few rods distant, with farm buildings, brought less than six dollars per acre.
    The rents reserved in this lease are equivalent to the interest on about two dollars per acre.
    These views about dispose of the plaintiff’s third proposition also, but something may be added under this head. The lease itself recites that the committee was duly “authorized by the proprietors of Providence to let and lease the public lands, for such a term as they, the said committee, should think proper.”
    This being an ancient deed accompanied by possession since its-execution, the recital of the authority becomes prima facie evidence of the fact. (James vs. Letzler, 8 W. & S., 192, and cases cited.) Express power is therefore provided, and the aid of a decree of a Court of Chancery was not needed. Had the latter been necessary the committee would have been in rather a helpless plight, for our Courts were not vested with chancery powers until forty years later, and if we deny original authority in the trustees, and also the power of the Legislature to enlarge their authority to sell or to make leases of coal for the usual term, which as we have shown, is generally perpetual, then it comes to this: that the trustees could not make the coal available at all unless they worked it themselves. That never could have been intended and would be intolerable, for the personnel' of the board of trustees is changed every three years, and nothing more foreign to their duties as Managers of a School Fund, than operating a coal mine can well be conceived.
    
      For the purposes of this report I am not disposed to dispute the plaintiff’s 4th proposition, viz: That the donors or founders of this charity were the Proprietors of the Township of Providence, though I am not entirely satisfied with its correctness. The latter were clearly donees and the Commonwealth as the grantors of the title to the committee clothed with the trust, might well be regarded at least technically as the donors. But assenting even to the plaintiff’s view that the proprietors were the donors, I cannot agree that the Legislature could have no voice in the management of the trust as claimed in the plaintiff ’s 7th proposition. I agree that it could 'not divert the funds, but that by an enabling statute it could grant the trustees power of sale and lease, is to my mind clear.
    Time and again has the Legislature passed special acts, empowering executors, administrators, trustees, guardians, &c., to sell real estate, and notably by the Act of 1853, known as the Price Act, authorized the Courts to grant like powers.
    The policy of the Commonwealth has been to unfetter estates and remove restraints upon alienation and it is now too late, in my judgment to seriously question the power of the Legislature in this respect.
    What the Legislature may authorize it may ratify, for ratification is equivalent to precedent authority. What then is the effect of the acts of 1831 and supplements of 1835 ? The act of 1831 is not confined to leases made since 1800, as contended in plaintiff’s 8th proposition. While it recites the appointment of the annual committees since that date, the enacting clause is general and covers all leases and was intended to cure defects in the title. The only defect which was recognized as existing was want of legal title in the committee and this was remedied by the act. Its purpose was to remove all questions of the validity of sales and leases made under circumstances similar to the one in controversy and the act should therefore receive' a liberal interpretation.
    As already suggested Judge El well in his opinion in Griffin vs. Fellows directly passed on the questions raised in the plaintiff’s 7th, 8th and 10th propositions; but as to the 8th I may add that want of title in the committee originally was expressly cured by the Acts of 1831 and 1835 and that independently of said acts the afterward acquired title by the certificate and patent inured to the advantage of the lessee (See opinion of Scott, Judge, in “Burney vs. Sutton,” 2 Watts 31).
    It is next objected that the lease is only signed by two of the throe trustees. This was evidently regarded as sufficient at the time and only the execution by two was contemplated, for the lease recites that the committee “have and the majority of them hath granted,” etc. ; and I cannot think that at this distance of time, the defect, if it bo one, could be regarded as fatal. But I consider the execution by the two as sufficient.
    The plaintiff’s argument treats this charity as a public trust. So regarded, the act of a majority of the trustees is the act of the whole, (See Perry on Trusts,-section 413, and cases there cited).
    These views I believe dispose of every material question raised on the argument and in conclusion I report that the defendants are entitled to have the bill dismissed.
    The appellants then took different exceptions to the finding of facts and law. The Court sustained the Master’s report, on Jan. 12,1884, in the following opinion per
    Rice, P. J.:
    After a very careful consideration of this case I am of the opinion that its decision might safely be rested on the report of the learned master, and the opinion of Judge Elwell in the case of Griffin vs. Fellows, 32 Sm., 117. But inasmuch as questions have been raised, which do not seem to have been mooted in the case stated, and inasmuch as the presentation of the case by the learned counsel who appeared for the plaintiffs before me is different in many respects from that which appears to have been made to the learned master, I feel constrained to state the reasons for the conclusions which I have reached, even though it may be at the risk of some repetition, and of being tedious. The interests involved in the decision of the case are, as is well stated in the decision of the learned master, very great in value, and, in addition to that consideration, the decision of the questions raised upon the argument must necessarily affect other interests and titles depending on the position of the public lands in the seventeen townships not directly involved in this suit. It is important, therefore, that the reasons for our decision of them should be made known, so that, if correct, not only this case but the questions involved in it should bo definitely settled, and, if erroneous, our errors should be made so apparent that they may be corrected by the higher tribunal to which the case will undoubtedly go. It will be seen, upon an examination of the exceptions which have been filed to the report of the master, that they are so numerous and so great- in length as to prevent a consideration of them in detail. The material questions, however, seem to have been concisely stated by the learned counsel for the plaintiffs who argued the case before me, and in our consideration of it I shall follow the line of his argument, stating his propositions very much in the language of his brief.
    I. The plaintiff’s first proposition is, that the lease in question is hot the act of the proprietors, but of Bag-ley and Gardner, that the indenture is made between them and Fellows, is not made in the name of the proprietors, and does not purport to be executed by them, and that to bind the principal, instruments under seal must be in- the principal’s name.
    These are objections to the formality of the instrument, and its execution, and not the authority of the committee. But if the apparent intention of the parties be regarded it would not be strictly correct to say that this was the lease of Bagley and Gardner as individuals and not of the proprietors, as it might be were it not for the references which are made to the principals. Being made by the committee “for and in behalf of the proprietors’” under a power which is recited, and possession having been taken and held under the proprietors by virtue of it, and the stipulated rent paid to and received by their successive committees for so long a period of years, the only question is, even putting aside any presumption of ratification, whether the committee was duly authorized to make it. If so, a court of equity would not permit the principals to set up such mere informality as a justification for its cancellation. It'would seem tó be cured by the act of March 20th, 1860 (P. L. 204, P. D. 102, pl. 8), and this act does no more than a court of equity would do on the same state of facts in correcting the defective execution of the pbwe.u If the rule with regard to the execution of powers of sale by persons having no interest in the land sold and conveyed is applicable here, the decisions show that the objection would not be good even in a court of law. Jones vs. Wood, 4 H., 42; Allison vs. Kurtz, 2 W., 188; Henby vs. Warner, 1 Sm., 276.
    
    II. It is argued in the second place, that the power to the three members of the committee or three trustees was joint and that therefore the execution of the lease by two only was invalid.
    As a general rule the power, interest and authority of trustees in the subject matter of the trust are equal and undivided; they cannot, like executors, act seperately, but all must join in conveyances, and, by the old rule, in receipts. Willis on Trustees, 136; Vandever’s Estate, 8 W. S., 409; Sinclair vs. Jackson, 8 Cow., *583, and cases cited. ' Where a settler vests his property in several co-trustees, they all forpn, as it were, one collective trustee, therefore they must perform their duties in one joint capacity. Perry on Trusts, %4.11. But the authorities recognize a distinction between the delegation of authority and trusts for merely private purposes, and charitable and public trusts. The rules as they are above stated apply to trusts of the former nature. In cases of charitable and public trusts, however, where the number of trustees is usually larger, it has been held, that the decisions of the majority of the trustees will be binding on the rest, for otherwise, says one of the writers, it would be in the power of one dissenting trustee to embarass'and possibly disappoint the working and object of the trust. Hill on Trustees, *308; Att’y Gen’l vs. Shearman, 2 Beav., * 109 ; Perry on Trusts, §413, and cases there cited. If, therefore, the plaintiff’s position is the correct one as to the nature of the trust, the power would seem to have been well executed by a majority. Without, however, treating the members of the committee as trustees of a public charity or justifying their action by the above stated exception to the general rule, I have concluded that the true solution of the present question is found when it is observed that the power was delegated to the committee as a body, and not to the individuals, as such, who constituted the committee. According to the terms of the recital it was the discretion of “the said committee” which was to decide and control their action, and not the discretion of the three individuals who composed it. Clearly, if under the power the discretion of the majority was intended to control, the other member of the committee could not prevent the execution of the power by refusing to join in the conveyance ; for after the conveyance had once been determined upon in compliance with the conditions of the power, the execution of the instrument would be in the nature of a ministerial act, and if a court would not compel the third member of the committee to join with his co-trustees in the execution, certainly equity would not hold the conveyance to be invalid for want of his signature, but would hold the act of the majority to be the act of all. In the case of Com’th ex rel. Hall vs. Canal Com’s’rs, 9 W., 466, Chief Justice G-ibson, after referring to the usual distinction made between powers óf a public and of a private nature, announces the following principle which, I think, is applicable here: “The criterion, “however, seems to be' not so much the character of £he power, “or of the act to be done by virtue of it, as the character of the “the agent appointed for the performance of it. Perhaps the “result of the case is, that an authority committed to several as “individuals, is presumed to have been given them for their personal qualifications, and with a consequent view to an execution “of it by them all; but that where it is committed to them as a “body, there is no presumption in the way of the usual method “of corporate action by a majority.” See also Baltimore Turnpike, 5 Binney, 484; Com’s’rs vs. Lecky, 6 S. & R., 170; M’Cready vs. The Guardians, 9 S. & R., 99. To say nothing of the presumptions in its favor arising from the- subsequent conduct of the q>arties, I conclude, with the learned master, that the execution of the lease by a majority of the committee was valid.
    III. Again, it is objected that authority in writing, as required by section first of our Statute of Frauds, is not shown, and that, the instrument being under seal, the authority should also be under seal.
    The lease comes from the proper custody, it recites that the committee was “duly authorized,” the lessee went into possession under it, he and those claiming under him have held possession to the present time and paid the stipulated rent until 1867, for which written receipts have been given. Being an ancient deed, under These circumstances, the rule of law is, not merely that the' act of the committee has been ratified, but that the recital is itself prima facie evidence of the facts which it recited, namely, that the committee was legally appointed and duly authorized to lease the land. James vs. Letzler 8 W. & S., 192; Doe vs. Phelps, 9 Johns., 169. Doe vs. Campbell, 10 Johns, 475; Jackson vs. Lamb, 7 Cow., 431.
    
    IV. A question of a more serious nature is now reached. This lease was executed in 1796, and at that time there were ho ■opened mines upon the premises. Mines have since been opened by the original lessee or those claiming under him, and it may be assumed that, long before the expiration of the term, the coal will be entirely exhausted. One question, at least, raised by the ■evidence upon this subject is taken out of the case by the decision in Griffin¿vs. Fellows, supra. It was there held “that upon the “face of the lease there is granted the absolute right to take “minerals from the lands demised, and for that purpose to dig “the soil and open mines.” The plaintiffs contended, however, that, treating this as a mining lease, the lessee can exhaust the ■coal, that it thus amounts practically to a grant of a part of the ■corpus of the estate, and that no powers to alienate, — to sell the ■coal, — nor authority to permit waste are shown in the committee.
    As we have already suggested, the evidence, aside from the •subsequent conduct of the parties, of such power and authority .as the committee had is contained in the recital which reads as follows : “Whereas the said James Bagley, Stephen Gardner “and John Mills, being legally appointed a committee and duly '“authorized by the Proprietors of the said town of Providence to let and lease out the public .lands of the said Pro. '“prietors and lying in the Township of Providence afore'“said, for such term as they, the said committee, should '“think proper,” &c., &c. The question now for consideration was not separately discussed in the opinion of Judge Elwell in the case cited, but I think it might be fairly argued that it was necessarily involved in his second and fourth conclusions. But assuming that the case of Griffin vs. Fellows does not decide the question, does a true construction of the recited power lead to the conclusion that the committee did not have authority to lease the coal as well as the surface ? The rules which govern the construction of papers of recent date are not to be applied with the same strictness to ancient deeds and writings where the effect will be to disturb titles which have been acquiesced in and long rested upon in confidence. Perhaps it is more accurate to say that these circumstances are proper to be considered in the construction of ancient papers. “A continued use, with the assent of all parties for a great length of time, must have an influence in the construction of all written instruments, especially if there be doubt as to their true meaning.” Perry on Trust, §745; Weld vs. Hornby, 7 East, 199; Rex vs. Osborne, 4 East 327. If in ascertaining the intent of the donors of this recited power the court were shut uj> to a strict construction of the terms of the recital there might be difficulty in concluding that a power to lease lands containing underlying strata of coal not opened and not mentioi^d in the power would give authority *to make a lease with mining privileges. But the most that can be said is that the extent of authority vested in the committee is uncertain, and while there is no express evidence of an intention to authorize the leasing of the surface only, this very uncertainty might furnish a reason for construing the power against the defendant’s claim of right to mine coal, were it not for the light which the Subsequent events cast upon the original understanding and intention of the parties. The inception of the title; which is now sought to be overturned, is involved in the obscurity of a past century, time has obliterated some of its original muniments, and the ordinary instruments and modes of proof are decayed and gone. In such a case a court ought to proceed with caution in giving a construction to sqch instruments of proof of title as are left, different from that which thejparties themselves have given to them by a long and uniform course of conduct. If, as was held in the case of Griffin vs. Fellows, supra, the long continued possession and use of the premises under this lease ; the notoriety which must have attended the opening and working of the mines upon the same ; the absence of any evidence of objection or complaint until a very late date, notwithstanding as early as 1830 mining to some extent was begun, and since 1840 active mining has been maintained; the payment and receipt of the stipulated rent for a period of seventy years, and in general the acquiescent conduct of the parties tend to show the construction which they have all along placed on doubtful terms in the case itself which is in existence, I think it may be said with equal, if not much greater force, that they tend to show the construction which now ought to. be placed on the power under which the committee acted, and of which we have only secondary and perhaps fragmentary evidence.
    Tn brief terms, I am led to the conclusion that, putting aside for the present any supposed reason for the interference of a chancellor based on the argument that a committee were trustees for a charity, the recital, taken together with the lapse of time, .and construed in the light of the conduct of the parties, is prima facie evidence not only of the authority of the committee to lease the land, but of authority from the proprietors necessary to give this particular lease validity and full effect, as well.
    V. The great stress of the argument in favor of the interference of the court was put upon the proposition that, the lands in question being charity lands, a lease' for nine hundred and ninety, nine years, at an unvarying rent, and permitting waste or being .a sale of the coal should not be upheld.
    A distinction is to be made between a legalized though unwise exercise of an express power and a breach of trust. Por example, if the'committee who made this lease were in a strict sense trustees of a charity estate, the court as paramount trustee might he authorized, if no other equity interfered to prevent, to set aside an act performed by them in the exercise of their implied powers, which would be destructive of the charity or to its great ■detriment. The English cases relied on by the plaintiffs, and some of which are cited by the learned master, hold that a husbandry lease of a charity estate by the trustees of the charity for a long term of years cannot stand, without proof of a consideration showing that it is fair and reasonable, and for the benefit of the charity. I am of the opinion that this jurisdiction is not, as the defendant’s counsel contends, peculiar to the chancellor of England, but is possessed by our court of equity. But clearly a Tule which would apply to a case where the power of trustees of a charity estate to lease is not expressly given, but is only • that general power which, by construction of law, is incident to their office of trustees, or to a case where the trustees have' exceeded the express power given, as, for example, by granting a lease for a longer term than was authorized, would not apply to a case where the power is expressly given and the discretion of the agent or trustees was intended to be unlimited, and their exercise of it was afterwards ratified.
    Now such authority as the committee undertook to exercise they received from the proprietors. • The conclusions ha» already been reached that the recital is evidence of their authority to make this lease. So far as appears, the power of the committee was collateral and not appendant to the estate, and the trusts for which they were answerable were only such a» grew out of the power which was granted them. If, therefore, this lease was invalid, its invalidity is based, not on any breach of trust by the committee, but grows out of the invalidity of the power itself. In other words, it is invalid because, by reason of certain supposed trusts upon which the land was held, the-proprietors themselves were incapable of making or authorizing a lease for a long term of years with mining privileges. But is not such a conclusion based on inference not warranted by the evidence, and, indeed, inconsistent with the evidence Í If it be assumed, as I think it must be, that this lease is. to be treated as the deed of the proprietors, where is the evidence upon which, at this laté day, a court of equity can base a decree annulling it as being a breach of trust ?
    
      First. — It is not contained ' in the lease itself .There is no mention there made that the land had been appropriated to any charity. It is there described as a part of “the public lands of the said proprietors and lying in the township of Providence.” It cannot be implied from language so indefinite that a lease of the lands for a long term of years, or even a sale of the same by the proprietors, would have been inconsistent with any trust upon which they were held.
    
      Second. — It is not contained in the certificate issued by the Commissioners in 1804, which, so far as is material here, simply certifies that “James Abbott and John Taylor, the public committee of the township of Providence, are the owners as Connecticut claimants of the fifty acres of land,” &e.,
    
      
      Third. — The evidence is not found in the patent issued in 1812, by which, without mentioning any charity, the land was granted to John Carey and John Taylor, “town committee, and their successors, in trust for the use of the proprntories of the said township “of Providence, their heirs and assigns forever,” &c.
    As the public or town committee took the title granted by the' certificate and patent in a representative capacity, I do not mean to be understood as deciding that a trust antedating the certifr cate might not be shown, especially if it were after-wards recognized. But so far as yet appears, and so far as the certificate and patent furnish evidence of its nature, the trust was not for any charity, but for the proprietors, who, as settlers and claimants under the Connecticut title, had made or authorized the lease in question.
    
      Fourth. By the act of April 14th, 1835, (P. L. 274) the provisions of the act of April 2d, 1831, (P. L. 367), were “extended to the township and the proprietors of the township of Providence,” with two provisos distinguishing it from the act of 1831, namely, 1st, that all the taxable inhabitants of the township should be entitled to vote at the annual election of officers, and 2d, that no sale heretofore made should be affected by the act. The first section of the act of 1831 provides “that all leases, sales “and contracts heretofore made by the committees of the proprietors of the respective townships of Wilkes-Barre, Plymouth “and Hanover, of and concerning lands originally appropriated “to the public use of the said townships, except as hereinafter “mentioned, be and the same are hereby confirmed as fully and “amply as though the said several committees had been vested “with the legal title at the time of making such leases, sales and “contracts.” The first clause of the preamble reads as follows: “Whereas, the original proprietors of the townships of Wilkes-“Barre, Plymouth and Hanover of the seventeen townships in the “county of Luzerne, surveyed and laid out certain lots of land in “said townships and appropriated the same to the religious, liter“ary and charitable uses of the said townships,” etc. Here, it will be observed, is the first express recognition or declaration of the uses to which the public lands in the township wore appropriated by the original proprietors. To this extent, and for this purpose the plaintiffs are compelled to rely on the act, but its effect in confirming the present lease is denied for several reasons.
    In the first place it is claimed that the confirmatory provisions of the act were intended to apply only to leases made since 1800.
    It is true that the preamble speaks particularly of such leases, but it also refers to -them as leases of the lands falling within the description of the first clause of the preamble which has just been quoted. • If the act was not intended to include the lease in question, it may be pertinently asked, what evidence does the act furnish that the land demised by it had been set apart for the uses mentioned in the preamble ?
    But is not this lease, as well as the land demised, within the provisions of the act? The enacting clause is very sweeping in its terms and taken by itself is broad enough to cover the lease in question. Were it not for the preamble no one would suggest that it was not intended to include all leases in its confirmatory provisions. The first section, in which they are contained,. is quite as general in its terms as the fifth section, which vests in the several corporations created, the interests of the proprietors, their respective committees, or other persons for their use, in all property of whatsoever nature; and it is through this last named section that the present plaintiffs derive their title, and their right to file this bill (Act. Feb. 10,1869, P. L. 132). “Though “the preamble of a law, as often said, is no part of the enactment, “and, therefore does not proprio vigore make the law, it is nevertheless a part of the law for some purposes. If it be referred to “in the enacting clause to identify the subject matter of the law “or to explain the motive or meaning of the legislature, it can be “used for this purpose.” Com’th. vs. Marshall, 19 Sm., 332. But the preamble is not to be given greater consideration than other parts of the act. It may, but it does not, always explain all the motives of the legislature in the enactment. The giving of particular reasons does not exclude the possibility of the existence of other reasons. It is quite possible that, out of abundant caution, the legislature intended, as they said, to confirm all leases therefore made, but were not prepared to declare that there was any legal invalidity in leases made by the proprietors themselves, or by their express authority, before the issuing of . certificates under the compromise acts of 1799,1800 and 1802, which absolutely needed curing, and hence made no particular mention of such leases in the preamble. The fact that the enacting clause makes no reference whatever to the preamble furnishes negative evidence that leases made since 1800 did not constitute the whole subject matter oí the law, and the terms of the enacting clause being in themselves free from doubt, I think they should be given full force.
    If this conclusion is not correct, why remembering that this act was passed upon the petition of the proprietors, as the preamble shows, were leases made before the compromise act of 1799 and its suplement omitted from its scope? Clearly not because a lease such as this for a long term of years was supposed to have been a breach of trust, or was thought to have been invalid by reason of the original committee having exceeded its authority, for by the act of 1831 leases for a long term of years and even sales of a “great part of said lots were recognized and intended to be confirmed, and future leases and sales of the land were expressly authorized. Neither could it have been supposed that a lease previously made by a claimant under the Connecticut title was a nullity and was cut up by the roots by the certificate and patent which issued to the lessor, and hence could not be confirmed; for at this time' the decision of Satterlee vs. Mathewson (16 S. & P., 169) had affirmed the constitutionality of the act of April 8th, 1826, (9 Sm. IT, 180) respecting the relation of landlord and tenant between Connecticut settlers and between them and Pennsylvania claimants, and at the time of the extension of the act to Providence the decision of Judge Scott in Barney vs. Sutton (2 W., 31) had declared that the Connecticut settler had such an equitable claim, interest or right as could he granted to another. If, as contended by the plaintiffs, leases made prior to the issuing of" certificates, were not included in the act, the only satisfactory reason which can be given for their omission is that they were not thought to need legislative confirmation. Nor, so far as the validity of this lease in a court of law is concerned; would such a view of the case be a mistaken one, as was expressly decided in Griffin vs. Fellows supra. The lease being made by the proprietors, or what comes to the same thing, under an express power granted by them, the certificate confirmed the title or claim of the lessors as Connecticut settlers, and the lease being recognized and acquiesced in by the payment and receipt of the stipulated rent after as well as before the certificate the title thus acquired by the lessors inured as well to the , benefit of the lessee. To adopt the language of Judge Elwell • “If there were no confirming act of Assembly, there would arise, after this lapse of time, a presumption of confirmation by the lessor, by the acceptance of rent and written receipt therefor.”
    In the second place it is argued that the legislature did not intend, and if it did so intend, it had not the power to ratify a breach of trust.
    As I view the case it is not necessary to go into an extended discussion of the constitutionality of these acts. But the master did not go outside the evidence when he suggested that the consequence of declaring them unconstitutional at this late day would be disastrous in the extreme, for it cannot be doubted, in view of the recitals of the preamble, that many titles rest their security on their confirmation of former sales and leases and it is not unfair to presume that the power which they gave to -the trustees to make sales and leases in the future has been exercised. In addition to what the master has said as to the power of the legislature, I believe it to be safe to say that these acts furnish the evidence of no greater stretch of legislative power than was exercised in the passage of the act of April 8th, 1826, supra, or even the compromise act under, which this title is held. If the legislature had the power to create, and by the act under consid- . eration did create the trusts for the uses recited in the preamble that it had the power to confirm leases theretofore made. At least such legislative creation of the trust would not have the retrospective effect of invalidating an existing lease.
    But it is said, the legislature did not create the trust for the charitable uses mentioned in the preamble, and these acts are to be regarded only as the legislative declaration and recognition of the trusts already in existence. Whether the preamble in defining the uses to which the lands were originally set apart by the proprietors is strictly accurate from a historical point of view is not required to be decided here. Neither does it seem to be necessary to inquire particularly into the power of the legislature to-declare for what uses they had been set part. Por giving to the-recital every effect which can be claimed for it; whether as creating, declaring and defining, or as mere evidence of the trust, the-conclusion does not follow that the lease was in violation of the same, unless we assume that the donors of the charity in founding the same intended the land to be enjoyed for the uses named in specie, or to be inalienable, and beyond their control, and only to be let on short terms for farming purposes. This is not shown by the acts in question. On the contrary, in so far as they are or can be evidence, or throw light upon this question, they recognize leases for a long term of years and even sales as consistent with the conditions of the trust upon which the charity was founded.
    Neither is it shown by evidence outside these acts. Whensoever this charity was created, whether before the execution of the lease or not, such title to the land, aside from that of the State, as there was at that time was in the proprietors. This title interest or claim, so far as the State subsequently recognized it, upon the settlement of the conflicts in the seventeen townships, was held by them as settlers. It may be conceded that in granting to them the title the State did not intend to disturb any trusts for charitable or public uses which they had established. But a charitable gift must be accepted on the same terms upon which it is given, and no one has now just cause of complaint if the simple power given to the committee, as recited in the lease, was executed in accordance with the intent of the donors of the power and the will of the donors of the charity in its foundation. If the idea of founding such a charity as is now claimed to exist did not originate with the proprietors, but antedated even their occupation of the land, certainly its vitality was not derived from any prior grant to them, but only such as they gave it, and hence they may be regarded as the donors. Their acts, therefore, in' the absence of other clear and positive evidence, are of the highest value in ascertaining their intention, and the extent of the powers reserved by them in the regulation and administration of of the charity ; and regard being had thereto, it is not to be presumed, after this lapse of time, that in leasing the land they violated the terms of the trust upon which they intended to donate or set apart the same. On the contrary, I am led to conclude, irrespective of the act of 1835, that their will was carried out in the creation of a fund for the uses recited in the act of 1831 by the leasing of the land, that a court of equity may interfere to prevent a diversion or misapplication of this fund, but it is not authorized to set aside the act of its founders, by which it was created.
    The effect, therefore, ot the act of 1835, in confirming leases made prior to the year 1800, was not to ratify and condone a breach of trust, nor to substitute the will of the legislature for that of the proprietors in the foundation and management of this charity, but simply to give the sanction of the State to that, which they, as Oonnectieut settlers, had done before acquiring title from the State. In so doing I am unable to conclude that the legislature violated any constitutional principle.
    For the reasons given, as well as those so well stated by the learned master, I conclude the bill must be dismissed. But, as is suggested in this report, the present trustees could - have hardly done less in the performance of their duty, than to bring the case into.court for a decision of the important questions which it involves. The defendant was also deeply interested in having them finally settled, and without amplifying, I am clearly of the opinion that it is a proper case for the exercise of the undoubted discretion of the court to apportion the costs between the parties.
    . And now, to wit, January 12th, 1884, after argument by counsel and due consideration by the court, the exceptions to the report of the master are overruled, the report is confirmed, and it is ordered, directed and decreed that the bill be dismissed. And it is further ordered, directed and decreed that each party pay the costs of the witnesses supoonaed by them respectively, and the costs incurred by them respectively for printing, and that the residue of the. costs, including the fees of the master and the examiner, be paid, one-half by the plaintiffs and one-half by the defendant.
    
      The trustees then appealed to the Supreme Court, and assigned the following errors : First, the court erred in not holding the land in controversy to be a charity estate; second, the court erred in treating as authoritative, Griffin vs. Fellows, 32 P. F. S. 114; third, the court below erred as to the proof of the execution of the lease of 1796, as to its status as an ancient document, as to the effect of the recitals therein contained, and as to its subsequent confirmation; fourth, the court erred in not setting aside the lease of 1796, or declaring it null or forfeited; fifth, the court erred in construing the lease; sixth, the court erred in holding that a decree, adverse to the defendants in this case, would unsettle other titles.
    
      S. J. Strauss, C. H. Wells and F. W. Gunster, Esqrs., for plaintiffs in error
    argued, that the lands in question are charity lands, and the plaintiffs are trustees of a public charity, Lewin on Trusts, page 23; Wright vs. Linn, 9 Penna. 433; Plymouth vs. Jackson, 15 Penna. 44; Martin vs. McCord, 5 W. 495; Morrison vs. Beirer, 2 W. & S. 86; School Directors vs. Dunkelberg, 6 Penna. 29; Wright vs. Linn, 9 Penna. 443; McKissick vs. Pickle, 16 Penna. 140; Barr vs. Weld, 24 Penna. 87; McLain vs. School Directors, 51 Penna. 196; Chapin vs. School District, 35 N. H. 445; Cresson’s Appeal, 30 Penna. 437; Domestic Society’s Appeal, 30 Penna. 425; Witman vs. Lex, 17 S. & R. 93; Beaver vs. Filson, 8 Penna. 327; Penn. Life Ins. Co. vs. Stokes, 1 Brew. 487; Ex. Parte Phila., 2 Brew. 462; Vidal vs Girard, 2 Howard 127. The lease in question is not made in the name of the proprietors. To bind the principal, instruments, under seal, must be in the principal’s name; 2 Sudgen on Powers, page, 243; Wharton on Agency, sections, 280, 283, 288; Taylor’s Landlord and Tenant, sections 137, 139; Story on Agency, sections 148 to 154. To bind the principal for a longer period than three years, the authority of the agent is required, by the act of March 21, 1772, to be in writing; and the instrument being under seal, the authority should be under seal also; Dodds vs. Dodds, 9 Penna. 315; Lewis vs. Bradford, 10 W. 67; Huff vs McCauley, 53 Penna. 206; Pattison’s Appeal, 61 Penna. 294. The act of 1860, P. L. 204, is only declaratory of the common law; Henby vs. Warner, 51 Penna. 276. The lease in question is executed by only two of the three persons named, and the act does not delegate the power to two of them; Lewin on Trusts, page, 299; Vandever’s Appeal, 8 W. & S. 405; Park vs. Graham, 4 S. & R. 549; Kingsley vs. School Directors, 2 Penna. 28. The lease of 1796 has never been confirmed or ratified by the land-lord, McDowell vs. Simpson, 3 W. 129; Magaw vs. Cannon, 3 W. 139; Robson vs. Flight, 4 De. G. J. & S. 608; Jenkins vs. Church, 2 Cowper, 482; Doe vs. Taniere, 64 Eng. Common Law, 998; Martin vs. Watts, 7 Durn. & E. 79. The confirming enacment of the act of 1831 was intended only to confirm titles and rights as against the Commonwealth. The grant of the mines and minerals was a sale of the estate which cannot be made by a trustee without express authority; Stoughtons’ Case, 88 Penna. 198; Richards vs. Rote, 68 Penn. 248. The lease of 1796, being of chaiity lands for 999 years at an unvarying rent, and there being no other consideration, and no proof that it was provident, connot be upheld in equity; Woodfall’s Landlord and Tenant, section 12, pages 73 and 74; Taylor’s Landlord and Tenant, section 130 to 133; Hill on Trustees, 1721; Lewin on Trusts, 424; Tiffany and Buelard on Trusts, 274; Attorney General vs Griffiths, 13 Ves. 575. The lease of 1796 cannot be sustained as a general mining lease, or as a building lease; Schuylkill Navigation Co. vs. Moore, 2 Wh. 477; Gibson vs. Tyson, 5 W. 34; Dunham vs. Kirkpatrick, 101 Pa. 36. Under a lease of lands, unopened mines cannot be opened; Astray vs. Ballard, 2 Modern, 193; Owings vs. Emery, 6 Gill 260; Coke on Littleton, 54 b; Mount Joy’s Case, 3 Rep. 3b; Saunder’s Case, 3 Rep. 12 ; Clegg vs. Rowland, L. R. 2 Equity, 160, 166; Cambell vs. Leach, Ambler, 740. A coal lease in Penna. is in reality a sale of part of the corpus; Funk vs. Haldeman, 53 Penna. 229; Grove vs. Hodges, 55 Penna. 504; Penna. 504; Coleman vs. Coleman, 19 Penna. 100.
    
      1 P. Hand and I. J. Post, Esqs. for appellees,
    argued, that the allegation that the lands were charity lands, was expressly denied in the answer, and consequently must be proved; Edmond’s Appeal, 9 P. P. S. 220. The landlord should have promptly disavowed the lease, of act of his agent; Bredin vs. Du Barry, 14 S. & R. 27; Kelsey vs. Bank 69 Penna. 426. The Town Committee had authority to let and lease out the public lands. This includes all there is of the land, the surface and all under it. If there be' no open mine and the lease is made of the land, together with all the mines therein, then the lessees may dig for mines, and enjoy the benefit thereof; otherwise these words would be void; Coke on Littleton, 54 b.; Rogers on Mines, 393, 394, and 265; Bainbridge on Mines ane Minerals, 73; Griffin vs. Fellows, 32 P. F. S. 123.
   The Supreme Court affirmed the decree of the court below, on the 5th May, 1884, in the following opinion:

Per Curiam.

Notwithstanding the numerous specifications of error and the earnest argument of the counsel for the appellants, we cannot discover that the facts of the case differ sustantially, from those we passed upon in Griffin vs. Fellows, 32 P. F. S. 117. We do notffeem it necessary to review the case in detail. The facts as well as the law arising thereon are so fully and ably presented by the master and the learned Judge, that we are content to adopt the opinion of the latter in disposing of exceptions to the report. On the opinion the

Decree is affirmed and appeal dismissed at the costs of the appellants.

On the application of the appellant, a reargument was ordered. The Supreme Court affirmed the decree of the court below on 27th of April, 1885, in the following opinion :

Per Curiam.

This being a reargument, we have again given the case a careful consideration. Many of the questions involved were decided in Griffin vs. Fellows, 32 Smith 114. We there adopted the opinion of Judge Elwell, that the leases made by Providence township, had been confirmed, and declared valid, and without the confirming act, the great lapse of time, created a presumption of confirmation by the lessor; and that the terms of this lease, granted an absolute right to take minerals from the land demised. The report of the Master in this case, and the able opinion of the learned judge, overruling the exceptions thereto, contain a clear and correct statement of the law applicable to the facts of the case, and fully vindicate the conclusion at which they arrived. We deem further discussion of the questions unnecessary.

Decree affirmed and appeal dismissed at the costs of the appellants.  