Thorndike v. Barrett

The cause being continued nisi for advisement, the opinion of the Court was delivered at the ensuing August term in Oxford, by Mellen C. J. The only question is whether the deed from John Molineaux to William Molineaux, bearing'date Sept. 14, 1790, and recorded May 13, 1793, the execution of which was admitted, and which was offered in evidence without objection, is legal proof of a conveyance of the land therein described. A [385] verdict has been found for the demandant, and he is entitled to judgment, unless the deed is to be pronounced inoperative as a conveyance of the premises demanded. We are to form our opinion upon the deed before us. Having been executed almost thirty five years ago, and then approved by the standing committee of the proprietors, it is entitled to a liberal construction, and ought to be sanctioned as an effectual conveyance, unless legal principles strictly forbid it ; and upon the most careful examination, and comparison of it with those cases which have been supposed to be similar to it, we are satisfied that it is legal evidence of a conveyance of the land therein described. It appears by the deed that the Twenty Associates, Sept. 23, 1785, voted that Beauchamp’s Meek, of which the premises demanded are a part, should be sold by the standing committee, at public or private sale; — that at a meeting of said committee Oct. 31, 1785, the clerk informed them that said William Molineaux had offered six shillings per acre, being the highest offer ; that there upon the committee accepted the offer made by him ; — that at another meeting of the committee Dec. 12,1789, the clerk of thg propriety was authorized by them to execute a good and lawful deed of said Beauchamp’s Meek, agreeably to the usual forms in like cases practised, to the said William Molineaux ; — the form of which deeds according to a vote of the proprietors of May 13, 1768, was to be such as “the standing committee should judge necessary” for the purpose of granting and conveying the lands of the company; which deed or deeds should “be approved “of by at least two of the committee, and expressed on the same “in writing under their hands.” It is a principle of law, well established in Massachusetts and this State, that towns and proprietors of common lands may alienate their lands by vote. Adams v. Frothingham 3 Mass. 352. Codman v. Winslow 10 Mass. 146, Springfield v. Miller 12 Mass. 415. Such a vote would clearly have been sufficient. This is the usual mode of proceeding among proprietors of lands in common. In the same manner by a vote of such proprietors, and a draft of lots, their common lands are considered as legally divided. All the conveyances of property in severalty by the proprietors of the Kennebec purchase are effected by their vote, by which, as they express it, they “ vote, [386] grant and assign” to A B, &c.; — and by another vote, a mode of certifying such vote or grant and perpetuating the evidence of it, for the use and in the possession of the grantee, or person to whom the land is voted, is designated ; to which mode the clerk of the proprietors conforms, by giving an instrument, in the nature of a certificate of the vote, and, in some degree, resembling a deed ; being under the seal of the company, and signed, and acknowledged by the clerk before a Justice of the Peace. These modes of conveyance, various as they are, have been adopted and sanctioned, in virtue of a provision contained in successive statutes relating to this subject, by which proprietors of lands in common “are empowered to order, manage, improve, divide and “ dispose of [their common lands] in such way apd manner as shall “ be concluded and agreed upon by the major part of the inte- “ rested present at any legal meeting; the votes to be collected “and accounted according to the interests.” Underthis statute authority the above mentioned vote of 1768 was passed by the twenty associates, as to the sale of their lands, and mode of conveying the same, and perpetuating the grant or sale. It is proper here to observe that this power given to proprietors is a peculiar one; a power of agreeing on the mode of dividing and disposing of their property ; — a power which persons in their individual capacities do not possess; they must conform to those principles and modes of conveyance which our statutes have distinctly and explicitly prescribed. The difference is important. Viewing these principles, in connection with the several votes of the Twenty Associates, the proceedings of the standing committee in making the contract of sale, and in writing approving of the deed, in behalf of the proprietors, which the clerk had made “ agreeably to the usual forms in like cases practised,” we are well satisfied that they can never be permitted to deny that the title to the lands described in the deed passed to the grantee. ' We are confirmed in this opinion by the case of Mayo & al. v. Libby 12 Mass. 339. The Court there held that a resolve, releasing to “ each settler” in Hampden, who was on the land before a certain day, one hundred acres in severalty, to be laid out so as to include his improvements, although it did not give any bounds or description of the same, was sufficient to pass the estate in the [387] hundred acres ; — leaving those particulars to be afterwards settled by a surveyor. Is there any essential difference between that case and this ? There the name of each settler was to be ascertained and the bounds of his lot fixed by a surveyor, after the resolve was passed. Here the name of the purchaser and the price were to be ascertained and fixed by the standing committee, after the vote of sale was passed; and the evidence of the whole to be preserved and delivered to the purchaser by a deed or instrument, made, executed and sanctioned in the manner and form prescribed by the vote of the proprietors; and which was carefully observed and adopted with respect to the deed in question. This case differs from Stinchfield v. Little 1 Greenl. 231. There the question was, whether the instrument declared on was the deed of Little. The only question arose upon the plea of non esl factum. In the present case the question is whether the estate passed from the Twenty Associates to William Molineaux by the deed under consideration. In that case Little was held answerable because he had bound himself by some of his covenants in the deed; covenants into which he need not to have entered. In the present case, there is no question of covenants. The lapse of time since the deed was executed may be considered of importance also in another point of view. We have had occasion once before to examine this cause: see 2 Greenl. 312. Several questions were presented by the former report of the Judge who sat in the trial of the cause, and the verdict was set aside because certain proposed testimony was rejected; apart of which had relation to an asserted disseisin of William Molineaux. By the report now before us it seems that all other questions were satisfactorily disposed of, except that as to the effect of the conveyance from the company to Molineaux. The deed to him, as we have before stated, has been registered more than thirty-two years. And now, by the statute of limitations, the Twenty Associates are barred of all remedy by action to recover the demanded premises; because ever since the conveyance, William Molineaux and those claiming under him have held all, or a.part the lands openly and adversely to the proprietors. Such we must consider to be the fact, since the second verdict has put a negative upon all pretence of disseisin committed upon him. The [388] case before us has several peculiar characteristics, which distinguish it from all those with which it has been compared; and not deeming the decisions in those cases as necessarily applicable this, we feel authorized, as well as disposed, to pronounce the deed, under all the circumstances attending it, as a conveyance of the land there indescribed. Such was the unquestioned belief of all concerned at the time; and we perceive no principle of law which should prevent our giving it the operation and effect intended. We are all of opinion that there must be judgment on the verdict.