Society for Propagation of Gospel v. Town of Pawlet,
29 U.S. 480 (1830)

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U.S. Supreme Court

Society for Propagation of Gospel v. Town of Pawlet, 29 U.S. 4 Pet. 480 480 (1830)

Society for the Propagation of the Gospel v. Town of Pawlet

29 U.S. (4 Pet.) 480


Ejectment to recover a lot of land, being the first division lot laid out to the right of the society in the Town of Pawlet. The plaintiffs are described in the writ as

"The Society for the Propagation of the Gospel in Foreign Parts, a corporation duly established in England within the dominions of the King of the United Kingdom of Great Britain and Ireland, the members of which society, are aliens, and subjects of the said King."

The defendants pleaded the general issue of not guilty. The general issue admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued.

If the defendants meant to insist on the want of a corporate capacity in the plaintiff's to sue, it should have been insisted upon by a special plea in abatement or bar. Pleading to the merits has been held by this Court to be an admission of the capacity of the plaintiffs to sue. The general issue admits not only the competency of the plaintiffs to sue, but to sue in the particular action which they bring.

In the record there is abundant evidence to establish the right of the corporation to hold the land in controversy. It is given to them by the royal charter of 1761 which created the Town of Pawlet. The society is named among the grantees, as "The Society for Propagating the Gospel in Foreign Parts, to whom one share is given." This is a plain recognition by the Crown of the existence of the corporation and of its capacity to take. It would confer the power to take the land even if it had not previously existed.

The statutes of limitation of Vermont interpose no bar to the institution by the Society for the Propagation of the Gospel, &c., of an action for the recovery of the land in controversy.

The plaintiffs are a foreign corporation, the members of which are averred to be aliens and British subjects, and the natural presumption is that they are residents abroad.

The act of the Legislature of Vermont, which prohibits the recovery of mesne profits in certain cases, applies to the claims to such profits by the plaintiffs in this suit, and the provisions of the treaty of peace of 1783, and those of the treaty with Great Britain in 1794, do not interfere with the provisions o� that act. The law has prescribed the restrictions under which mesne profits shall be recovered, and these restrictions are obligatory on the citizens of the state. The plaintiffs take the benefit of the statute remedy to recover their right to the land, and they must take the remedy with all the statute restrictions.

The action was an ejectment, brought to recover "the

Page 29 U. S. 481

first division lot laid out to the right of said society in Pawlet, containing fifty acres."

The cause was tried at October term, 1828, and after the testimony on both sides was closed, the jury was discharged upon the disagreement of the judges of the court on the several points herein stated arising upon the facts agreed in the case and stated by the counsel for the parties. The facts agreed were,

On 26 August, 1761, George III, then King of Great Britain, by Benning Wentworth, Esq., Governor of the then Province of New Hampshire, made the grant or charter to the Town of Pawlet aforesaid, particularly describing the boundaries thereof to the grantees, whose names are entered on said grant, their heirs and assigns forever, to be divided to and among them into sixty-eight shares. Among the grantees whose names are entered in the said charter is "one whole share for the Society for the Propagation of the Gospel in Foreign Parts." A copy of the charter was filed among the proceedings.

And afterwards, on 16 April, 1795, Ozias Clarke executed the counterpart of a lease to the selectmen of the Town of Pawlet, for the time being, for and on behalf of said town, his heirs, executors, administrators and assigns, of the tract of land mentioned in the plaintiffs' declaration, described as follows, to-wit, all that tract of land, situate, lying and being in Pawlet aforesaid, known and distinguished by being the first division fifty-acre lot, laid out to the right known by the name of the Society, or Propagation Right, to have and to hold the demised premises, with the privileges and appurtenances thereto belonging, &c., from 16 April, 1795, and onwards as long as trees grow and water runs -- his yielding and paying yearly, and at the end of every year, the sum of seven pounds lawful money, &c. A copy of the lease was annexed and made part of this case. And thereupon Ozias Clarke entered into the immediate possession and occupancy of the said lot of land, and has been ever since in the possession and occupancy of the same, and has paid the rent aforesaid to the Town of Pawlet, yearly and every year since, at the rate of seven

Page 29 U. S. 482

pounds, equal to twenty-three dollars and thirty-four cents, for each year, and the Town of Pawlet has received the said sum as rent yearly from Ozias Clarke, and has applied the same for the benefit of schools in the Town of Pawlet. And Edward Clarke, the father of Ozias Clarke, went into the possession of the lot in the spring of the year 1780, it not appearing that he had purchased any title thereto, and so continued in the possession thereof till the defendant entered.

The case agreed contains extracts from the minutes of the society stating the proceedings thereof at their meetings in London relative to the land in Vermont granted by Governor Wentworth to the society. The first meeting was held on 16 July, 1762, and these minutes show the measures adopted by the society relative to the lands from that period down to 1810.

The proceedings on 16 July, 1762, and 16 March, 1764, show an acceptance of the donation and a resolution that agents be appointed to take charge of the patents and warrants for the land, and for such other purposes as the interests of the society may require.

At a meeting of the society held December 17, 1773, the society agreed that it be recommended to the society to empower Mr. Cossitt to see that justice be done to the society in the allotment of glebes, &c., in New Hampshire.

The society resolved to agree that a letter of attorney be sent to the Governor of New Hampshire empowering Mr. Cossitt to act in behalf of the society with regard to these lands, and leaving blanks for other persons whom the governor may think proper to insert.

On 20 May, 1785, a report was made to the society relative to its lands, and the meeting resolved that the secretary do write to some one or more members of the church of England in each of the states of America in which the society has any property to take all proper care in securing said property, and further to inform such persons that it is the intention of the society to make over all such property to the use of the episcopal church in that country, in whatever manner and form, after communication with the

Page 29 U. S. 483

several governments, shall appear to be most effectual for that purpose.

On 16 May, 1794, an application was made to the society through the Bishop of New York by the episcopal convention of Vermont requesting the society to convey, for the support of the episcopal church of that diocese, the land held by the society in Vermont, under grants from New Hampshire. The committee of the society made a report as follows:

The committee agreed in opinion that the Bishop of New York be assured of the society's readiness to concur in any measures which can forward the establishment of an episcopal church. But having considered that former applications have been made from the State of Vermont, differing in their intentions from the present, which were rejected by the society in May, 1790, and at the same time Mr. Parker of Boston, when he obtained a deed from the society for the conveyance of their lands in New Hampshire, had signified that he should not trouble them respecting Vermont till he should know the operation of that deed, and having never since heard from Mr. Parker on that subject, are of the opinion that there is not sufficient ground for the society to execute the present deed.

At a meeting of the society on 16 November, 1810, the secretary of the society was directed to obtain the fullest and most particular information respecting the nature and value of the rights of the society to the lands in Vermont, with the best means of recovering and rendering the same available.

In consequence of certain votes of the society expressive of its intention to appropriate the avails of their lands in the State of Vermont for the use of the protestant episcopal church in that state, the convention of the church in that state made application to the society for the power of attorney, and the said society executed to the Right Rev. Alexander V. Griswold, bishop of the eastern diocese, and the other agents therein named, the power of attorney, dated December 5, 1816, a copy of which was annexed to the case.

Page 29 U. S. 484

The act of the Legislature of Vermont passed October 27, 1785, entitled an act for settling disputes respecting landed property; an act entitled an act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein, passed November 5, 1800; also, the several acts to keep the acts last aforesaid in force for later periods than those contained in said act; an act passed November 15, 1820, entitled an act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein; and all the statutes ever passed in Vermont for the limitation of actions, and all the additions thereto, as found in the several statute books, including the act passed November 16, 1819, entitled an act repealing parts of certain acts therein mentioned; an act passed October 26, 1787, authorizing the selectmen of the several towns to improve the glebe and society's lands, and an act in addition thereto, passed October 26, 1789; an act passed October 30, 1794, entitled an act directing the appropriation of the lands in the state, heretofore granted by the British government to the Society for the Propagation of the Gospel in Foreign Parts, and all other statutes of said state, that either party considers applicable to this case, are to be considered as a part of this case.

Upon the foregoing case, the opinions of the judges of the circuit court were opposed upon the following points:

1. Whether the plaintiffs have shown that they have any right to hold lands?

2. Whether the plaintiffs are barred by the three years' limitation in the act of 27 October, 1785, or any other of the statutes of limitation?

3. Whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits, and if so for what length of time?

Page 29 U. S. 500

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