Tobey v. President of Wareham Bank

Dewey, J. The great question in the present case is that which arises upon the construction of the St. of 1825, c. 121. The bank shares, which are the subject of the present controversy, are the proceeds of the sale of certain ministerial lands in the town of Wareham; not directly, however, inasmuch as the funds, whilst held by the town, were vested in other securities ; and it was only subsequently to the passing over of those securities, and by a new investment by the trustees of the parish, that the bank shares were purchased. This fact of the purchase of the shares by the trustees of the parish, and not of the town, might present an objection to a recovery against the present defendants; but in the view we have taken of the case, neither this objection, nor that taken to the election of the trustees of the town, or their capacity fully to enforce any claim of the town to these funds, has been deemed material. We think, upon the broader ground, the general question as to the corporate body which is to have the appointment of the trustees, and the control of the funds arising from the sale of the ministerial lands in Wareham, the case is clearly with the defendants. Originally, these lands vested in the town of Wareham, though appropriated “ to the support of the regular administration of gospel ordinances.” But they vested in the town in its parochial capacity. Every town was a corporation of that peculiar character, that it embraced, within the scope of its appropriate duties, those of a parish, until a separate parish was formed and organized within its limits. Brunswick v. Dunning, 7 Mass. 445. Under, this authority, it was formerly the usage of the towns to transact their parochial business at the regularly called town meetings ; making no difference, in this respect, whether acting on parochial subjects, or on matters of strictly municipal concern. Austin v. Thomas, 14 Mass. 338. The principle is now well settled, that where lands are holden by the town in its parochial capacity, the proceeds of the sale of such lands are also holden by the town in the like capacity ; and upon the separate organization of a parish, the parish succeeds to all the parochial property of the town [447] This doctrine is fully stated and sustained in the cases of Ludlow v. Sikes, 19 Pick. 317; Shrewsbury v. Smith, 14 Pick. 297; and Inhabitants of Milton v. First Congregational Parish in Milton, 10 Pick. 447. These authorities would entirely dispose of the question as to which corporation—that of the town or the parish — has the property and control of the proceeds of the lands holden by the town of Wareham in its parochial capacity, were it not for the further objection which is supposed to vary the case, and which arises from the provisions of the St. of 1825, c. 121. The first section of that statute authorizes, in general terms, the town of Wareham to make sale of certain ministerial lands. The second section authorizes the said town, at the annual meeting of its inhabitants, in March or April, to elect three or more persons, “ who shall be the trustees of the funds to be raised by the sale aforesaid.” Does this statute perpetuate the legal estate and control of these funds in the town of Wareham, irrespective of any change that might take place by the organization of the parish distinct from that of the town ? We think such was not its design; nor does a proper construction of it necessarily lead to that result. This statute is to be construed with reference to those well known and established principles, already stated, that towns acted in the double capacity of municipal and parochial corporations, and that parochial property passes from the town tc the parish, connected with the fact, that at the time of the enactment of this statute no separate organization of a parish had taken place. The authority of the town to sell these lands, and invest the proceeds thereof, was only equivalent to an authority to the first parish in Wareham. It was virtually an authority to act parochially in relation to these funds. The town of Wareham was to elect three or more trustees annually, to manage these funds, so long as they represented the parish; but upon the separate organization of the first parish of Wareham, this duty would devolve upon the parish, as directly connected with the appropriation of these funds. We cannot suppose the legislature intended by this statute — [448] apparently a mere enabling statute, authorizing the change of certain parochial property from real estate to personal — to change also the whole legal character of these funds, and to enact that they should forever be legally vested in the town, in contradistinction to the first parish. It is much more reasonable, and much more in accordance with our whole system of the tenure of parochial property, to consider the provision, as to the annual election of trustees by the town, to have been exclusively applicable to the town, while continuing to act in a parochial capacity, and that, upon the organization of a separate parish, not only the income of the funds was to be appropriated, from time to time, by the parish, but also that the legal estate and entire control of the property passed to the parish. The effect of this opinion is, therefore, that these funds, the subject of the present controversy, did, upon the separate organization of the first parish in Wareham, become the property of the parish, and were subject to its controland that the trustees to manage the same are to be elected by the parish, and not by the town. This view of the case settles the principal question between the parties before us. We do not perceive that the result is at all affected by the two minor points raised on the argument. It will not avail the plaintiffs to establish, if they could do so, that the parish, after being duly organized in 1828, and continuing so until 1844, through some neglect, failed to elect their annual officers in the year 1844. Such omission does not necessarily operate as a dissolution of the parish. Oakes v. Hill, 14 Pick. 442. The property vested in the parish by their organization in 1828, and the town ceased to have any control over the same after that period. The vote of the directors of the Wareham ^ ■ k, that “ the bank would allow interest at the rate of six per cent. per annum', on the dividends due on these shares cf the bank stock until the majority of the directors vote to the contrary, and notify the town trustees,” does not vary the case. [449] There are various objections to the legal effect or binding force of this vote of the directors. 1. It appears to have been adopted at a meeting attended by less than a major part of the directors. 2. It is no direct promise to pay the principal sum sought to be recovered in this action, but only the interest on the dividend; and to whom this is payable is equivocal; all the stipulation, in reference to the “ town trustees,” being that the interest should be paid until the directors “notify the town trustees that they would no longer allow interest on said dividend.”, 3. But the more weighty objection is, that it can have no effect, for want of any legal consideration. So far as it is a promise to the plaintiffs, it is upon the assumption that the shares belonged to the plaintiffs, and that, as such holders, they were entitled to any interest that might be allowed on dividends not called for. But it now appearing that the shares were in fact the property of the defendants, and they alone entitled to the dividends accruing thereon, there is no equitable or legal consideration for such promise to the plaintiffs. Nonsuit confirmed.