Dix v. School District No. 2

[314] The opinion of the court was delivered by Kellogg, J. The bill of exceptions contains a statement of the facts, upon which judgment was rendered in the court below; and to that judgment several objections have been urged in this court, which are now to be considered. 1. It is said, that the plaintiffs are not entitled to recover, by reason of a variance between the contract proved and the one set forth in the declaration. If a variance, of a substantial character, is found to exist between the contract proved and the one declared upon, it must be conceded, it would be fatal to a recovery upon the special count. But we are not able to discover any variance of that character. Thea declaration sets forth a contract to convey the land, subject to the following reservations and restrictions, — that the district should hold the land for the purpose of erecting a school house thereon, — that the school house should be so located, that the west end should be as far west as the front end of the meeting house, — that no erections should be made upon the land between the school house and the highway,— and that the land should remain a public common. The case finds, that the plaintiff Lathrop proposed to the district, at their meeting on the seventeenth of November, and before the vote was passed, authorizing the prudential committee to buy the land, to sell it, subject to the following restrictions, — that the school house should be placed so far back upon the land, that the front part of it should be upon a line with the Congregational meeting house, — that no building should be erected upon the land in front of the school house and the Congregational meeting house, — and that the land should be kept open. The vote of the district, authorizing the purchase, was passed immediately upon receiving the plaintiff’s proposition. It is therefore a reasonable and natural inference, that the district authorized the purchase upon the terms proposed by the plaintiffs. The only difference between the restrictions proved and those alleged in the declaration is, that in the former the district are restrained from making erections in front of the school house and meeting house, while in the declaration and in the deed the restriction is limited to the school house. We think, it is no ground of complaint by the district, that the land was obtained by their agent [315] upon terms more favorable to the district, than they had authorized. The restrictions imposed upon them must be confined to those expressed in the deed; and these are found to correspond with those set forth in the declaration. Again, it has been urged, that there is a variance between the proof and the declaration, as to the location of the school house; but we are unable to perceive it. The terms used in specifying the restrictions, it is true, are not precisely the same in both, but they express the same idea, and impose the same obligation. In both, the restriction requires the school house to be placed so far back, that the west end shall not be farther west than the line of the meeting house. Again, it is objected, that while by the contract the land is only required to be kept open, yet by the deed the land is to remain as a public common. The proof shows, that, at the time of the purchase, the land was, and had been for some years, unenclosed and open to the public; and the deed, we think, only imposes upon the district the obligation to keep the land open, as it then was. It contemplates nothing more. 2. It is insisted, that the court erred in admitting the evidence showing the terms, upon which the plaintiffs offered to sell the land to the defendants. This evidence was proper, to show the circumstances, under which the vote of the district was passed, authorizing a purchase of the land, and the terms and conditions, which the plaintiffs would require upon a sale of it. It was intimately connected with the vote of the seventeenth of November, and it may well be supposed, that this induced the vote, and that the vote was passed with reference to those proposals. We think the evidence was properly admitted. But even if it were admitted, that there is such a variance, as is contended by the defendant, and if the evidence of the proposals made by Lathrop to the district were laid out of the case, still we are inclined to think, the plaintiffs might well recover, upon the general count. The object of the district was, to purchase land whereon to erect a school house ; and although the vote of the district, authorizing the purchase, was general in its terms, yet we think, the prudential committee, to whom the general power was delegated, might well purchase upon the terms he did, inasmuch as the restrictions in the deed in no manner defeat or impair the object [316] of the purchase. The district did, indeed, limit the prudential committee as to the particular land to purchase, and the price to be paid for it. Beyond this they did not undertake to restrict the committee ; for we think the language of the vote does not necessarily import, that the purchase should be made free of all restrictions. Doubtless the purchase should be such as not to defeat the object of the grant, or prejudice the district in the enjoyment of it. Those objects were fully attained, and in a manner satisfactory to the agent of the district. It is objected, that the deed of the plaintiffs does not convey to the district any interest in the premises, inasmuch as the plaintiffs derived their supposed title from the Congregational Society, through Hastings and Smith, describing themselves as agents of the society. It is deemed a sufficient answer to this objection, that the deed was satisfactory to the agent of the district, and was by him accepted. The district are presumed to have known the title of the plaintiffs ; for it appeared of record. The district must have contemplated the purchase to be made of the plaintiffs. The agent procured a deed with the usual covenants of warranty, which he accepted; and by that acceptance the district is bound. If the title is defective, the district have their remedy upon the covenants in the deed. 4. It is urged, that there was no legal notice to the inhabitants of the district, that the subject of the purchase of land, on which to erect the school house, was to be acted upon at the meeting, and consequently that the vote was invalid. The statute requires, that the time, place and object of the meeting shall be stated in the notice. The warning contained an article in these words, — “ To see what measures the district will take in relation to building a school house.” This was sufficient notice to the inhabitants, to justify the meeting in acting upon all matters, and adopting all measures, which should be deemed necessary and proper for the erection of a school house. If the district had no land, on which to erect the house, it would be as necessary to procure it, as it would be to provide materials for the building; for the house could not be built without land, on which to erect it. The evidence in the case shows, that the subject of building a school house and fixing its location had been the occasion of frequent meetings of the district, during the season of 1846. In March of [317] that year the district directed the sale of their real estate; and it does not appear, that they had any land at the time of the purchase of the plaintiffs. In June of the same year they procured a location to be made by the selectmen, which was subsequently changed. This clearly shows, that the district had land to purchase, as well as a house to build; and of this the district seem to have been fully aware. We think, the notice was amply sufficient to apprise the inhabitants of the district, that at the meeting all necessary measures were to be taken for the building of a school house, and as necessarily incident to that was the purchase of land on which to erect it. This disposes of all the objections raised, and we discover nothing to justify us in disturbing the judgment of the court below. Consequently the judgment of the county court is affirmed.