Troy v. Haskell , 33 N.H. 533 ( 1856 )

Fowleb, J.

By the deed from Thomas Tolman the demanded premises were conveyed to the town of Fitzwilliam “for the use and benefit of the public, and to be improved for a public common, and no other purpose.” This conveyance vested the legal estate in Fitzwilliam; for it is well settled that when an estate is conveyed to trustees with a requisition to do any act to which the seizin and possession of the legal estate are necessary, the fee will vest in them; in other words, the legal estate will vest whenever it is necessary for the purpose of effecting the trust. Upham v. Varney, 15 N. H. 466, 467, and authorities.

But Fitzwilliam held the premises only as trustee. The town, as a corporation, had no beneficial interest in them. The town was the mere instrument for carrying out the intention of the grantor. It was not a mere depositary of the estate, but bound to see that the design of the grantee was effectuated by the perpetual dedication of the premises to the purposes of a public common.

Under these circumstances, did the act dissevering a portion of Fitzwilliam, and constituting a new town by the name of Troy, within whose limits the demanded premises were situate, divest the title from Fitzwilliam and transfer it to Troy ? Did it discharge Fitzwilliam from her obligations as trustee and impose them upon Troy ? It seems to us clearly not, and we are unable to discover any sound principle of law or equity leading to such a conclusion. The general doctrine is well established, that such a division would in no way affect the title of Fitzwilliam to any property, movable or immovable, belonging to the corporation, wherever situate, nor release her from any duties or obligations incumbent upon her in respect to the same.

In Union Baptist Society v. Candia, 2 N. H. 20, where the question in relation to the ownership of a lot of land granted to Chester for the use of the ministry, and subsequently sold by Candia, within whose limits it had fallen by the incorporation of a portion of Chester into a town by that name, was discussed, the court said: “ Whether by the grant there vested in Chester an absolute fee, a base fee determinable on the settlement of a minister, a trust for each theological association, or any other imaginable interest, is of no consequence. Candia is now sued, and yet it is apparent that when Candia was formed from Chester, though this lot fell within its boundaries, it was not conveyed to that town, either in its charter of incorporation or by any vote of Chester. The title to it, therefore, like the title to all other land within its limits, remained unchanged; and the town acquired over that, as over other land, only a corporate jurisdiction. It is questionable whether the trust would not have been violated by an attempt to pass the title to Candia. True it is, Candía has since proceeded to sell this lot; hut upon these facts, the sale could pass no title to the purchasers, and upon the covenants or otherwise the town is liable to refund to them whatever has been received.”

In Windham v. Portland, 4 Mass. 889, where the question involved related to the settlement of a pauper, and an attempt was made to charge him upon Portland, on the ground that his residence, when he acquired his settlement, was in that portion of Falmouth which had been incorporated as Portland, prior to .the passage of the statute relating to the settlement of paupers on the division of towns, Chief Justice Parsons, in delivering the opinion of the court, remarked: “ A town incorporated may acquire property, real or personal. It enjoys corporate rights and privileges, and is subject to obligations and duties. If a part of its territory and inhabitants are separated from it, by annexation to another, or by the erection of a new corporation, the former corporation still, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties, unless some provision should be made by the act authorizing the separation. Thus it would continue seized of all its lands, possessed of all its personal property, entitled to all its rights of action, bound by all its contracts, and subject to all its duties.”

This doctrine was expressly recognized and applied to counties by Chief Justice Parker, in delivering the opinion of the court in Hampshire v. Franklin, 16 Mass. 86, where it is said that “ by general principles of law, as well as by judicial construction of statutes, if a part of the territory and inhabitants of. a town are separated from it by annexation to another, or by the erection of a new corporation, the remaining part of the town, or the former corporation, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties ; unless some express provision to the contrary should be made by the act authorizing the separation. And the same principles will apply with equal force where a county is divided.”

In Denton v. Jackson, 2 Johns. Ch. 336, although the question was not decided, the learned Chancellor, while confirming generally the doctrine advanced in the cases we have cited, intimated an opinion that if a town were so divided that a part of common lands belonging to the inhabitants, but holden by the town, should be included within, the limits of the new town, the new town might thereafterwards hold what of those lands fell within then.' limits, on the ground that the legislature intended, in the absence of any provision to the contrary, that each town should thereafter take to itself the common lands falling within its boundaries.

Even if this suggestion be sound, of which there may well be serious doubts, it evidently can have no application to the present case ; for the inhabitants of Eitzwilliam and Troy were and still continue to be only interested in the demanded premises in common with the rest of the community, and therefore no presumption of any intention of the legislature that Troy should take them exclusively to herself, can arise. Any other corporation might as well have been trustee as the town of Eitzwilliam ; for instance, the county of Cheshire, or the State of New-Hampshire. It may be supposed that Eitzwilliam was selected because the premises were within her limits, and she would be more likely to see that the intention of the grantor was faithfully executed, than any other corporation; but there is nothing incompatible with the discharge of her duties as trustee, in the fact that the subject of the trust has since been transferred to the territorial jurisdiction of another town.

We are, therefore, of the opinion that the deed of Thomas Tolman vested the legal title to the demanded premises in the town of Fitzwilliam as trustee for the public; that the act incorporating Troy merely conferred on the new town territorial and municipal jurisdiction over those premises, but did not transfer to it the legal title; and, upon the authorities, it seems clear that the legal title remained in Eitzwilliam after the passage of that act, as it had before been. At all events, Troy having no legal title to any portion of the demanded premises, the questions arising upon the pleadings become immaterial, the present action cannot be maintained, and there must be

Judgment for the defendant on the report.