Chamberlain v. Bussey , 5 Me. 164 ( 1827 )

This case having been argued last year, and continued for-advisement, the opinion of the Court was delivered in this term, by

Melles C. J.

The premises demanded are what the demand-ant claims as his share in common, as one of the members or proprietors in a corporation called “the Ten Proprietors,” which has long existed, and still continues to exist, under that title. No objections are made to the derivation of what the demandant considers as his right or property; though some have be'en urged as to the proportion claimed; but this needs not to be examined, as our decision has no connection with that point.

In the argument two grounds of objection are relied upon, against the demandant’s right to maintain this action; — first, that the land, of which an undivided proportion is claimed as the demandant’s property, never belonged to the Ten Proprietors; — and secondly, that if it did, and does now, no action can be brought to recover it, except in the name of the Ten Proprietors ; and that no individual proprietor can maintain an action for his proportion, declaring on his own individual seisin. As to the first point, it appears on a careful examination of the reported facts, that no part of the land which had been assigned to the Ten Proprietors was lost, or taken away, in consequence of the interference with the Plymouth patent; and of course the land, which was granted to make up the deficiency, was granted to Henry Knox and others, interested in the Waldo patent; but the Ten Proprietors were not interested ; and therefore no part of the tract granted could enure to their use. Besides, there is a total uncertainty as to every person, as grantee, excepting Henry Knox. And in addition to all these facts, it appears that the Ten Proprietors took a bond of indemnity from Brigadier Waldo, to secure them against all eventual loss, by reason of surveying the patent, according to the directions of the General Court. So that the fact is, they guarded themselves from any anticipated loss, by the personal security of Waldo ; and that at last it was ascertained that the anticipated loss or damage was never in fact sustained. The decision of this point settles the cause ; but we are disposed to express our opinion on the second also, as it has been the subject of investigation and argument.

By the operation of the provincial statutes, in force when the Ten Proprietors were incorporated, by virtue of a warrant issued on the application of a certain number of those proprietors, the seisin which the individuals had of their respective shares in common, became tra> sferred to the proprietary; and thereupon the Proprietors could sue writs of entry, declaring on their own seisin as such, witho'ut giving the names of the members composing the corporation. The seisin being, in the company, they could, at a legal meeting, manage and even disDo se of any part of the property, by a major vote in interest of the Proprietors. The statute of this State,' on this subject, contains nearly the same provisions as the provincial statutes. So long as'a man remains a member or proprietor, his common interest is subject to that control which the law has given to a majority in interest. But he may withdraw from the company, and by process of partition have his share assigned to him to hold in severalty; though such a partition would not be granted, until all liens legally created and existing on the property by him owned, had been removed. It was settled in Mitchell v. Starbuck & al. 10. Mass. 5. that such process of partition would lie by one proprietor, against the corporation or proprietary of which he was one. But as against all others, the rights of the proprietors are to be asserted and enforced by action, in the name of the proprietors or company, by which they are called and known on their own records; and their individual rights are suspended as to remedy by legal process. Such has been the long received and long established doctrine on this subject, and it is not now to be disturbed ; and as the fact disproves the seisin alleged, the objection is good on the general issue. On both grounds we are of opinion that the verdict is right, and of course there must he Judgment for the tenant.