THIS cause was cortified to this court from the circuit court of the United States for the district of Vermont; the judges of that court being opposed in opinion on certain questions of law which arose at the trial.
The action was an ejectment, brought to recover 'the 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 were 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 the 26th day of 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 for ever; 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 the 16th of 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 the 16th of 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 pounds, equal to twenty-three dollars and thirty-four cents, for each year; and the town of Pawlet have received the said sum, as rent, yearly, from Ozias Clarke, and have 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 contined 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 the 16th of 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 the 16th of July 1762 and the 16th of 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 the 20th of May 1785, a report was made to the society relative to their 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 several governments, shall appear to be most effectual for that purpose.