THIS case came before the Court upon a certificate of a division in opinion of the Judges of the Circuit Court for the District of Vermont. It was an action of ejectment, brought by the plaintiffs against the defendants, in that Court. The material facts, upon which the question of law arose, were stated in a special verdict, and are as follow:
By a charter granted by William III., in the thirteenth year of his reign, a number of persons, subjects of England, and there residing, were incorporated by the name of 'The Society for the Propagation of the Gospel in Foreign Parts,' in order that a better provision might be made for the preaching of the gospel, and the maintenance of an orthodox clergy in the colonies of Great Britain. The usual corporate powers were bestowed upon this society, and, amongst others, it was authorized to purchase estates of inheritance to the value of 2000 pounds per annum, and estates for lives or years, and goods and chattels, of any value. This charter of incorporation was duly accepted by the persons therein named; and the corporation has ever since existed, and now exists, as an organized body politic and corporate, in England, all the members thereof being subjects of the king of Great Britain.
On the 2d of November, 1761, a grant was made by the governor of the province of New-Hampshire, in the name of the king, by which a certain tract of land, in that province, was granted to the inhabitants of the said province, and of the king's other governments, and to their heirs and assigns, whose names were entered on the grant. The tract so granted, was to be incorporated into a town, by the name of New-Haven, and to be divided into sixty-eight shares, one of which was granted to 'The Society for the Propagation of the Gospel in Foreign Parts.' The tract of land, thus granted, was divided among the grantees by sundry votes and proceedings of a majority of them; which, by the law and usage of Vermont, render such partition legal. The premises demanded by the plaintiffs, in this ejectment, were set off to them in the above partition, but they had no agency in the division, nor was it necessary, by the law and usage of Vermont, in order to render the same valid.
On the 30th of October, 1794, the Legislature of Vermont passed an act, declaring, that the rights to land in that State, granted under the authority of the British government, previous to the revolution, to 'The Society for the Propagation of the Gospel in Foreign Parts,' were thereby granted severally to the respective towns in which such lands lay, and to their use for ever. The act then proceeds to authorize the selectmen of each town, to sue for and recover such lands, if necessary, and to lease them out, reserving an annual rent, to be appropriated to the support of schools. Under this law, the selectmen of the town of New-Haven executed a perpetual lease of a part of the demanded premises, to the defendant, William Wheeler, on the 10th of February, 1800, reserving an annual rent of 5 dollars and 50 cents; immediately after which, the said Wheeler entered upon the land so leased, and has ever since held the possession thereof. Similar donations were made, about the same time with the above grant, to the plaintiffs, of lands lying within the limits of Vermont, by the governor of New-Hampshire, in the name of the king; but the plaintiffs never entered upon such lands, nor upon the demanded premises, nor in any manner asserted a claim or title thereto, until the commencement of this suit.
The verdict found a number of acts of the State of Vermont respecting improvements or settlements, and also the limitation of actions; but as the discussions at the bar did not involve any questions connected with those acts, those parts of the special verdict need not be more particularly noticed.
Upon this special verdict, the Judges of the Court below were divided in opinion upon the question, whether judgment should be rendered for the plaintiffs or defendants, and the question was thereupon certified to this Court.
The cause was argued at the last term by Mr. Hopkinson, for the plaintiffs, and by Mr. Webster, for the defendants, and continued to the present term for advisement. Feb. 15th, 1822.