Colby v. Northfield & Tilton Congregational Society ( 1884 )

The plaintiff does not controvert the general doctrine announced in Jones v. Towne, 58 N.H. 464, but he claims that the repairs in this case were made by the pew-owners, according to the provisions of Gen. Laws, c. 154, ss. 12, 13, and that the society had no right to locate or assign his pews. The society owned the building and sold the pews, "reserving to themselves and their successors the entire control and management of said house." This reservation did not, however, enlarge or change the rights of the society at common law; for, under that, the pew-holders have merely a qualified and usufructuary right in their pews, subject to the right of the society to remodel them and to alter the internal structure of the building, or enlarge or remove it, or sell the edifice and rebuild elsewhere. The pew-holder's right is a modified ownership, subject to the superior title included in the ownership of the house. Jones v. Towne, supra. Nor was the common-law right of the plaintiff changed by the statute. The statute prescribes the way in which the paramount right of the society may be enjoyed and enforced. It does not affect the common-law right of the pew-owner.

The plaintiff owned his pews subject to the right of the society to the control and management of the house, and to the right of three fourths of the pew-owners to make such repairs and modifications as they saw fit. April 30, 1880, a meeting of the pew-owners was held, agreeably to the provisions of the statute, at which they, by a three-fourths vote of those present and voting, voted to repair their house of public worship, modify the interior thereof, remove the pews therein, and provide new ones; and otherwise change the interior accommodations of the house as the agent or agents chosen by them should deem advisable, and to raise for the purpose a sum not exceeding $1,500 by assessment of the pew-holders. The improvements cost $6,000. Subsequently,, on the same day, the society voted to ratify and confirm the votes of the pew-holders, and accept and agree to the agents appointed by the pew-holders, and waived all right, if any they possessed, to control or interfere with the action taken by the pew-holders. By this vote the society confirmed the action of the pew-holders, and the agents appointed by them became the agents of the society. Whether the pew-holders could make the new assignment is a question that does not arise. Their agents made the assignment, as they were authorized to do by a vote of the society and the assent of the pew-holders implied from their silence and inaction; and the assignment thus authorized is valid. If it were unauthorized and invalid, there would be a question how the plaintiff could own any particular pew in severalty without a partition of property commingled by the reconstruction. No injustice appears in the partition that has been made, and the plaintiff has no equitable or legal cause of complaint.

Judgment for the defendants.

CARPENTER, J., did not sit: the others concurred.