
    *Claughton and Others v. Macnaughton.
    Saturday, November 23d, 1811.
    1. Glebe Land — Vacancy—Statute—Construction.—According to tbe spirit of the act, “concerning the glebe lands and churches within this commonwealth,” passed the 12th day of January, 1802, no glebe land was to be considered vacant, and as such liable to be sold, if there was any minister, who, in behalf of the protestant episcopal church, had been put into possession, and was the incumbent thereof, on that day; whether the persons acting as a yestry, by whom he was inducted, had been canonically elected or not.
    2. Same — Delivery of Possession — Sufficiency of.— The vestry’s order that the minister “be inducted into the parish as incumbent,” is a sufficient delivery of possession of the glebes thereto attached, to prevent a sale of the same as vacant.
    Duncan Macnaughton filed his bill (January 20th, 1803) in the superior court of chancery for the Williamsburg district, setting forth that, on the 11th day of January, 1802, he was by the vestry of Saint Stephen’s parish, in the county of North-umberland, inducted as clergyman of the said parish, as would more fully appear by reference to a copy (annexed to the bill) of their proceedings, attested by their clerk; that, by virtue of such appointment, he proceeded to discharge the various duties of the said clerical office, and had continued to execute all the functions thereof to the present day ; that William Claughton, George Barrett, William Norris, Samuel Downing and Peter C. Rice, known as the overseers of the poor for the said county, had nevertheless, by a certain notification in writing, advertised for sale two glebes belonging to St. Stephen’s parish, (to wit, a glebe in Fairfields, and one other called Cherry Point glebe,) of which the complainant was the incumbent, inducted with all the requisites usually observed upon such occasions : which procedure of the said overseers of the poor he charged to be illegal and unjustifiable, founded on an assumed and pretended authority derived to them under the act “concerning the glebe lands and churches within this commonwealth,” passed the 12th of January, 1802.  The complainant, moreover, contended, that the said glebes were both private donations; as would more fully appear, reference being had to a deed to the bill annexed, relative to Cherry Point. For these reasons he prayed an injunction, to inhibit the sale of the said glebe lands; which was awarded by Chancellor Wirt.
    
      The defendant, Samuel Downing', by his answer, declared his own opinion to have been that the glebes in *question were not vacant, and, therefore, not saleable under the act of assembly. He had, therefore, at first, voted against the sale; but the majority of the overseers having decided otherwise, he had acquiesced, (considering the question as determined by their vote,) and had finally voted for proceeding to advertise the lands for sale.
    The other defendants denied the plaintiff’s induction; admitting that certain persons, who had been called by him, and who, perhaps, called themselves, the Vestry of St. Stephen’s parish aforesaid, had attempted to induct him into said parish or glebes, or rather endeavoured to persuade other persons (particularly some of the overseers of the poor) that they had performed such induction; but stating their own belief that said pretended ceremony took place at the distance of five miles, or more, from either of the said glebes or glebe houses, and that the complainant was never in the actual possession or occupancy of either of said glebes, or either of said houses, prior to the passage of the act of assembly aforesaid.
    The defendants proceeded to state the cause of the election of said pretended vestry, and the manner in which they were elected, as follows: In the year 1799, prior to the triennial election, there was an order made in vestry, directing the elections of vestrymen, on Easter Monday in 1799, to succeed those then in office. The parish is divided into two districts; Fair-fields district, and Cherry Point district. Six vestrymen were to be elected in one district, and six in the other. The churchwardens were directed to superintend the elections in their respective districts. • No election took place in either of the districts on that day, owing, in the Cherry Point district, to the thinness of the meeting. The churchwarden superintending the said last-mentioned district, in consequence thereof, postponed the election for that district to a day, as well as these defendants recollect, three weeks thereafter, at which time an election did take place in that district, *and these defendants, with others, were duly elected vestrymen. In Fairfields district, it is believed, no attempt was made to elect vestrymen (in the year 1799 or 1800) after said Easter Monday. The vestrymen, elected as aforesaid in Cherry Point district, were frequently called on by the then incumbent, the Rev. Mr. John Seward, to act in local matters in said district; which was customary for district vestrymen; and which they did, and their acts were recog-nised as proper until the year 1801; in which year they gave an invitation to reputable ministers of the gospel of any denomination to preach in the said Cherry Point church, in the absence of the then incumbent; at which the said incumbent took great offence, and procured another election to be holden on the day of , 1801, declaring that the election of the six vestrymen as aforesaid was void. On which last-mentioned day, the vestry, who it is said inducted the complainant, were elected (if it can be said they were elected at all) by a general election; at which time these defendants believe that no general election could have been holden ; it not being the third year from 1799, or the sixth from 1796; which would more fully appear by reference to a canon of their’s concerning vestries and trustees.
    In addition to this irregularity, the defendants relied on the act of assembly, passed the 24th of January, 1799, entitled ‘ ‘an act to repeal certain acts, and to declare the construction of the bill of rights and constitution concerning religion”  and to .such parts of the acts, therein referred to, as relate to this subject; conceiving the effect thereof to be, that no person inducted into any glebe, by vestrymen, or trustees, elected subsequent to the 24th of January, 1799, could, with propriety, be considered as an incumbent, within the true meaning and intention of the act passed the 12th of January, 1802, so as to prevent the sale thereof under the said act. *As to the Fairfields’ glebe, the defendants believed it was a private donation. But as to the Cherry Point glebe, they had understood that the office of Northumberland county, in which, it is supposed, were the records relative to the title thereof, was burnt; and therefore it is not certainly known how the church became originally possessed of that. It seems, however, that the persons, who are said to have been the donors thereof, acted only in the- capacity of agents for the church, and not as donors, as would more fully appear, reference being had to a deed of release executed by them in the year 1713, and duly recorded in Northumberland county court. The defendants, however, were at a loss to know the reason why the complainant had stated the glebes in question to be private donations; unless he pretended to be not only the incumbent thereof, but also the heir of the donors: which pretensions they believed to be alike unfounded.
    Sundry depositions were taken, on both sides, to support, or impugn, the several elections of vestrymen in the years 1799 and 1801; the general purport of which, in a great measure, proved that neither of those elections were canonically regular. An extract from the proceedings of the last-mentioned vestry, signed by Charles Fallin, their clerk, showed that, at a meeting thereof, held at Northumberland courthouse, the 11th of January, 1802, ‘‘it was agreed unanimously, that the Rev. Duncan Macnaughton be inducted into this parish as incumbent, upon agreement with the vestry that he have leave to reside in Wicco parish during the present year.”
    Chancellor Tyler, on the 10th of July, 1807, decreed, ‘‘that the defendants be rej strained from making sale of the two glebes in the bill mentioned, so long as the pláin-tiff remains the incumbent thereof; and that each *party .pay his own costs ;” from which decree the defendants appealed to this court.
    
      
       1 Rev. Code, 421.
    
    
      
       1 Rev. Code, 388.
    
   *The counsel on both sides submitted the case without argument; and, on Thursday, November 28th, 1811, the president pronounced the court’s opinion, that the decree be affirmed. 
      
      The principal case is cited in Selden v. Oversers of Poor, 11 Leigh 132.
     