Congregational Society & Church v. Newington , 53 N.H. 595 ( 1873 )

Ladd, J.

The case finds that since 1810 the town has at all times used said parsonage, and taken and applied the profits thereof to its municipal purposes, under a claim of right to do so, and with the knowledge of the plaintiff society; also, that there was in Newington, from 1715 down to 1868, a Trinitarian Congregational society, although not legally incorporated or organized, but maintaining religious services in the same meeting-house during all that period, with some interruptions, and that, at the close of the year 1862 or the beginning of 1863, the religious society was organized under the general law by the corporate name of the Congregational Society of Newington, which society has. ever since had regular religious worship in the old meetinghouse.

We think these facts show a ground upon which the case must be decided in favor of the defendants, without^ going into the question whether the deed created a trust in the town ; for, assuming (what was probably the fact) that, when the town accepted the deed from Nicholas Knight containing the explicit declaration that the premises were for a parsonage, and for the use and support of the ministers of the gospel, a charitable use was created for the object specified, and that tlie town, either in its municipal or parochial capacity, was therefore invested with the legal title as trustee, charged with the duty of administering the fund in behalf of the charity mentioned in the deed, we still think it is impossible to reach any other conclusion than that there has been such a distinct disavowal and renunciation of'the trust by the town, and such an uninterrupted occupation, for a period of more than sixty years, — or more than fifty years, if we reckon from 1819, when what is known as the Toleration Act was passed, — adverse to the right of the plaintiffs and all others, who may have had an interest in the premises, as must perfect the title in the trustee, even against a cestui que trust. The act was unequivocal. During all this long time the town took and applied the profits of the premises to its municipal purposes, under a claim of right to do so, and with the knowledge of the plaintiff society. No more unmistakable disavowal of the trust can well be conceived. When the town thus distinctly repudiated the trust, not only these plaintiffs,- but all others, if there were others, who claimed an equitable interest and right in the premises, as cestuis que trust, -were bound to come forward and assert their claims. There is no pretence that the plaintiffs were under any disability during this period, and we think their right is gone by reason of the adverse occupation of the property by the town.

It is true, that, to enable a trustee without giving up the possession to turn it into an adverse holding against the cestui que trust, the evidence must be clear and unmistakable, and such adverse claim must be brought home to the cestui que trust beyond question or doubt. Perry on Trusts, sec. 864. We think these conditions are entirely fulfilled in the present case, and that the Bill must be dismissed.