#### * Francis Brown *versus*Benjamin Porter.

Lands which had been, before the year 1754, by the original proprietors of a township, appropriated to the use of the ministry in the town, were, by the provincial act passed in that year, concerning grants and donations to pious and charitable uses, vested in the minister of tire town for the time being.

This was a writ of *entry sur disseisin,*in which the demandant, as minister of the first parish in *North Yarmouth,*in this county, demands one hundred acres of land in *Freeport,*in the same county, described as lot number thirty-three in range B; and he counts upon his own seisin in fee in right of said parish within thirty years, and upon a disseisin by the tenant.

The action was tried October term, 1812, upon the general issue of *non disseisivit,*before *Thatcher,*J., by whom the jury were directed, upon the evidence produced at the trial, to find a verdict for the demandant; and to this opinion and direction of the judge the tenant excepted. From the statement of the evidence-contained in the exceptions as allowed, the following facts, material to the decis ion of the cause, as afterwards given, were proved at the trial: — *North Yarmouth,*when the inhabitants thereof were first incor porated as a town, included the territory now *Freeport;*and at that time, and for many years afterwards, the support of public worship and ministerial charges were provided for and defrayed by the town. Before the incorporation of *North Yarmouth,*the original proprietors or patentees of the township had appropriated one right or share in then patent to the use of the ministry. Whether this was a grant or donation to pious uses by their own voluntary act, or a compliance with a reservation to that purpose made by the legislature in their grant to the proprietors, does not appear. But in 1730, Mr. *Cutter,*the first minister settled in the town, took possession of the home lot, which had been then drawn or appropriated by a vote of the town to the right of the ministry; and afterwards, in 1733, when the lot in question was drawn to the same right, the town voted to have it cleared for Mr. *Cutter.*Other lots were afterwards drawn to the same right, some of them located in the part which is now *Freeport,*and others in *North Yarmouth,*according to its limits since the separation. Respecting one of these lots, called the *ma sh*lot, * the town, at the settle- [ * 94 ] ment of Mr. *Loring*as their minister in 1736, voted to have the hay cut by a Mr. *Sweetser*to the halves, Mr. *Loring*to have one half of the hay ; and in 1763, when Mr. *Brooks*became the settled minister, the town stipulated with him to relinquish bis *106right in the ministerial lands; and in 1769, when Mr. *Gilman*became the settled minister, the town voted that he should have certain lots of the ministerial lands; the other lots, among which was the lot now in question, being reserved, as it should seem, in the use and occupation of the town. Mr. *Gilman*continued in the ministry there until 1807, and had the use of the lots voted him by the town at his settlement, but had no possession or use of the other lots. In 1810, when the demandant was settled and ordained as minister of the first parish in *North Yarmouth,*at a salary of 750 dollars, the parish voted and stipulated with him, that, when the lands for the use of the ministry should be sold, the income of the fund to be produced by the sale should constitute a part of his salary; and in April of that year the demandant entered upon 'the lot demanded, claiming it as minister in right of his parish.

In 1770, the easterly part of *North Yarmouth*became a district, which included the territory now Freeport; and the town, in voting their assent to the separation, made an exception of the public lands reserved for the' ministry. In 1774, by a vote and grant of the town, the inhabitants of tne easterly end, or of the district aforesaid, took one of the ministerial lots there situate, but not the lot now in question, upon which the inhabitants there afterwards placed and erected their meeting-house; and in 1775, by another vote of the town, the inhabitants of the district, upon their petition to the town therefor, had the leave and privilege of “ taking the lumber cut or to be cut on the ministerial lot within the district, to build a meeting-house with.”

In September, 1789, the town of *Freeport*appointed an agent to take care of the ministerial land in that town, and voted [ * 95 ] that a part of it should be cleared every year, it * being then in a state of nature. In the same season, Mr. *Johnson*was settled as minister of *Freeport,*and immediately took possession of the ministerial lands, including the lot now demanded, began fencing it about two years after he was settled, enclosed a part of it, and continued in the possession and occupation of it until his dismission in 1806; after which the present tenant occupied it by order of a committee of *Freeport,*appointed to lease and take care of the same.

In 1794, a number of the inhabitants were, by an act of the legislature, exempted from taxes in the westerly part of *North Yarmouth,*called in the act “ the parish of which the Reverend Mr *Gilman*is pastor,” and were incorporated by the name of *“ the North-West Congregational Society in*North Yarmouth.” And in consequence of this separation, the other inhabitants, constituting Mr. *Gilman’s*parish, finding it inconvenient to conduct their *107parochial concerns as a town, and in the name of all the inhabitants, were convened as a parish, and assumed the name and style of *the First Parish in*North Yarmouth.

The cause was argued upon the exceptions at the last May term in this county.

*Whitman*for the tenant.

There was no reservation of these ministerial lands in the original grant of the township of *North Yarmouth.*It was merely an appropriation by the proprietors. The title, therefore, remained in them, or in the town, until they occasion ally, and from time to time, voted them to the use of the successive incumbents, who respectively entered upon and took possession of the parts so voted. Nor did any one of them occupy or claim any other parcels than those which had been so specially granted to them. But the town have never appropriated the lot demanded to the first parish or its minister; and the demandant shows no title on which he can recover, without such special appropriation.

There are several parishes within the original boundaries of *North Yarmouth,*older than that of which the demandant is the minister. The towns of *Harpswell, Durham,*and * *Pownal,*were once part of *North Yarmouth,*as well as [ * 96 ] *Freeport.*There remains yet a large town, of which this parish is but a portion. If the land demanded belongs exclusively to one parish, it would seem that such should be the eldest. But it belongs to no parish. It was originally in the town, as a corporation, to which, while it exists, there can be no successor who can lawfully claim it as such. The demandant took no interest or estate in the ministerial lands at his settlement.. He agreed to leave them at the disposal of the town, and it was stipulated that the income of the proceeds of them, when sold, should make a part of his salary as then fixed, not an addition to it. The evidence, then, will not support the present action, in which the demandant counts upon his own seisin, whatever might be the effect of the same evidence in another form of action for the same land.

The demandant must recover by his own strength, if he recover at all. It is no concern of his, whether the tenant, or the town of *Freeport,*have any title to the demanded premises or not. That town has, by its minister or agent, been in the quiet possession of the land for more than twenty years, claiming title to it. Nor has there ever been any possession or occupation of it by a minister of *North Yarmouth,*until 1810, when this demandant entered, previously to the commencement of this action.

*Mellen*and *Cutler*for the demandant.

The cause stood continued for advisement until this term, when the opinion of the Court was delivered as follows by

*108Sewall, J.

In the argument upon the exceptions filed for the tenant in this action, the title of the demandant has been placed upon the ground of a demand of a tract of land appropriated to pious uses; and, whatever uncertainty there might have been in a title of this description, as to the person or corporation entitled, the manner of vesting, and the course of inheritance or succession of the estate, all doubts of this kind were removed by the solicitude of our ancestors upon subjects of this nature. [ *97 ] *In 1754, by a statute, (1) revised and reenacted in most of its provisions since the revolution, (2) it was declared and established that the minister or ministers of the several Protestant churches, of whatever denomination, are and shall be deemed capable of taking in succession any parsonage land or lands granted to the minister and his successors, or to the use of the ministers, and of suing or defending all actions touching the same. In the several cases which have occurred, where the construction and application of this ancient statute, as it may be called, have been brought in question, the decisions of the superior court, and of this Court, have finally settled the following rules or principles, according to the traditions and reports which we have upon the subject.

A donation of lands to the use of the ministry has the same import, and is as much within the purview of the statute, as a donation of parsonage lands to the use of the minister or ministers, — the case provided for by the terms of the statute. (3) Both intend the ministers in their official capacity, designating them in the one case by the name of the officer, and in the other by the name of his office. Lands and tenements, thus given and appropriated to pious uses, are holden by the minister of the parish or corporation, for whose particular benefit the gift or appropriation is made, as an estate in fee simple in him and his successors; the first appointed minister and his successors taking the same, upon a regular settlement and ordination, as a sole corporation ; and until the appointment, and during vacancies in the ministry, the estate being in abeyance, but in the custody, and therefore in the possession and under the care, of the parish or aggregate corporation. And, independently of the interposition of the legislature for the purpose, the estate in lands appropriated to the benefit of a parish or religious society, by whatever description incorporated, remains with the residue of the original parish or society, and is not in [ * 98 ] any manner transferred or distributed * by a separation, *109or change among the members, or in the territorial limits of the corporation. (4)

Applying these rules and decisions to the case at bar, unless it is distinguishable upon 'the grounds suggested by the counsel for the tenant, it seems to result undeniably upon the question of title, that the right or share in the township of *North Yarmouth,*according to the original extent of that territory or grant, vested in the first minister, (if the statute, considered as declaratory and to remove doubts, had any retrospective operation,) or at least in Mr. *Loring,*or whoever was their minister in 1754, as an estate to him and his successors ; and all the consequences of this statute title, as it may be called, then, if not before, took effect upon the lots of land drawn to the appropriated right or share ; one of which was the lot now in question. From that time, therefore, whatever might have been the effect of a previous disposition, if any had happened, this tract of land became unalienable by the town, and the estate of their ministers, to be holden by them in succession. And this succession is with the ministers of the first parish, as it is now called ; which, to this purpose, is the religious society or corporation to whose use and benefit the appropriation was made, being what remains of that aggregate corporation, after the separation and changes of limits which have taken place under the sanction of the legislature.

But the tenant makes it a question, whether the appropriation, in the case at bar, was a donation of the kind contemplated and provided for by the statute. It is argued against the supposed title of the demandant, that the right or share appropriated to the use of the ministry, and the lots drawn upon that right, were never out of the town, as an estate or property transferred from them; that occasionally, and so far only as the votes of the town appropriated them, in their contracts with their ministers at their settlement, those individuals had the use and occupation; that this is further proved by the disposition made of one of the lots to the easterly district, and by the other aid afforded * them in building their meeting-house; and that the [ * 99 ] demandant, at his settlement, consented to the same construction, then adopted and acted upon by his parish in the terms made with him, contradictory to the construction of the supposed grant or donation now contended for by him. And it must be allowed that the conduct of the town of *North Yarmouth,*in the instances stated and referred to, gives a strong coloring to this argument, and to the suggestions upon which it proceeds.

*110Titles in real estate are not lost, however, by mistaken apprehensions of legal rights or duties. The proprietors of *North*Yarmouth, who made the appropriation in question, and the inhabitants there, then or afterwards incorporated as a town, for whose benefit the appropriation was made, are to be regarded as different bodies or collections of men, even if at any time constituted by the same individuals, because proceeding and acting with different purposes, and in different capacities. The proprietors appropriated, and the town accepted, the appropriation, as appears by their votes, in the time of Mr. *Cutter,*their "first minister; and the statute of 1754 established the title of the minister, and controlled the assumed authority of the town.

Besides, it may be observed, that a relinquishment or alienation, made by the minister for the time being, is valid against himself; and, although no alienation by the town is valid against the minister, if made without his concurrence and consent, this mutual restriction is no obstacle to any temporary arrangement, in which the minister and people concur; as in a reservation of ministerial lands, to be continued in the occupation of the parish, by a stipulation with the minister at his settlement. Nor is it pretended, in the case at bar, that the tenant holds or claims the lot demanded under any license or title derived from the first parish, or from the demandant, or any of his predecessors in the ministry.

And upon the whole, in what depends on the title of the demandant to the lands and premises described in the [ * 100 ] writ, * the Court have no hesitation in considering the action maintained by the evidence; and that the lot of land demanded is recoverable by him in the right of the first parish of *North Yarmouth;*but whether in this action upon his own seisin, under all the circumstances of this case, is a question of some difficulty ; in considering which, however, we are disposed to give a liberal effect to the evidence, and to presume rather in favor of the action than against it, where a formal objection is relied on; and, if it prevails, the demandant is to be turned round to another action, to avoid a mere right of possession. The limitations upon real actions, and the saluatary provisions of law in that respect, are not, however, to be neglected.

The demandant declares upon his own seisin, and it is incumbent upon him to maintain this averment of his writ, to enable him to recover the premises demanded in this action.

In April, 1810, the demandant entered upon the lot in question : and if his entry was then lawful, his seisin is sufficiently proved. In what depends upon the title, this question has been settled in his *111favor; but the title is not sufficient, as a right of entry, if the seisin and possession under it had been interrupted by an actual disseisin and ouster for a term of twenty years.

We cannot consider the agreement between Mr. *Gilman*and his parish as in any respect an ouster or dispossession. The lands reserved by that agreement were holden under him. The agree ment itself was a recognition of his title, and it could have no operation to prejudice the rights of his successor. Besides, it may bo called a lawful disposition, in which the minister and the parish mutually consented. And until the incorporation of *Freeport,*in 1789, there seems to be no pretence of any possession adverse to the title of the ministers of the first parish of *North Yarmouth.*At some period after that incorporation, an adverse possession commenced, which was continued by the tenant when the demandant entered upon him in April, 1810.

* If the vote of the town of *Freeport*respecting minis- [*101 ] terial lands, or what is said by the possession taken by Mr. *Johnson*in the autumn of 1789, were evidence of a disseisin then committed, the entry of the demandant was not lawful, being after an adverse possession of more than twenty years; and perhaps this is a question which the jury was more competent to have settled than the Court. But as the time is distinguished by the evidence, when Mr. *Johnson’s*possession commenced, as an actual and permanent occupation, which was not until about two years after September, 1789, and as nothing is said of any visible and notorious occupation under the vote of the town, or by Mr. *Johnson,*previous to his improve ment by fencing, we think the jury were correctly instructed in this particular also; and that the verdict for the demandant may be confirmed.

The exceptions are accordingly overruled, and judgment is to be entered on the verdict, (a)

(1)

 See *Mass. Stat.*vol. ii. 1037. *Appendix.*

(2)

*Stat.*1785, c. 51.

(3)

2 *Mass. Rep.*500, *Weston*vs. *Hunt*

(4)

7 *Mass. Rep.*445, *Brunswick*vs. *Dunning.*

(a)

**[Vide *Inhab. Harrison vs.*Bridgeton, 16 *Mass. Rep.*16. — *Jewett*vs. Burrough, 15 *Mass. Rep.*464. — *Austin*vs. Thomas, 14 *Mass. Rep.*333. — *Inhab. First*Par. Shap*leigh*vs. Gilman, 13 *Mass. Rep.*190. — *Dillingham*vs. *Snow,*3 *Mass. Rep.*276.—5 *Mass. Rep.*547. — *First Parish Medford*vs. *Pratt,*4 *Pick.*222. — *First Parish*Bruns*wick*vs. *Dunning,*7 *Mass. Rep.*445. — *Baker*vs. Fales, 16 *Mass.*Rep. 488. — *Eages*vs *Marlborough,*post, 430. — *Milford*vs. *Godfrey,*1 Pick. 91. — Ed.]