majority">

The case was continued nisi, and the opinion of the Court, WhitmaN C. J. concurring in the result only, was drawn up by

Tenney J.

This is an action of trespass, quare clausum fregit, brought by the plaintiff as the minister of the First Baptist Society in Kennebunk and for their use. The defendants, in their first plea, admit that they broke and entered the close described in the writ and declaration, and did certain acts complained of therein, but deny that they did any of the acts by force and arms and against the peace, and the plaintiff joined the issue tendered. In a second plea, as to the acts admitted to have been done, the defendants say, that the close was conveyed by the deed of George Taylor, dated October 20, 1835, to two of the defendants and others, therein named, to be held in trust for the First Baptist Society of Kennebunk, for the use and support of a minister of the Baptist denomination, and that the said two defendants, for themselves and the other surviving trustees named in the deed, and the other defendant as their servant, did the acts complained of and admitted by the defendants to have been done, as they might fully and lawfully do. To this plea the plaintiff replied, that when the alleged trespass was committed, he was the minister of the First Baptist Society of Kennebunk and in the posses*511sion and improvement of the premises described, as such minister, and by virtue of a lease from a committee of said society, they being also three of the trustees mentioned in the deed of George Taylor, and tendered an issue to the country, which was joined by the defendants.

The plaintiff introduced the deed referred to in the plea to two of the defendants and several other persons their heirs and assigns forever, in consideration of a certain specific sum paid by each grantee, and to be held by each in proportion to the sums respectively paid by them, as one entire property however, never to be divided or severed, for the use of the First Baptist Society in Kennebunk, to be forever kept for the sole use and support of a minister of the Baptist denomination. From evidence introduced by the plaintiff, it appeared, that prior to and at the time of the conveyance, there was a house situated in Kennebunk, appropriated for public worship, called the old school house afterwards, and occupied by an unincorporated society, having connected therewith a church of the Baptist denomination. Subsequently a now meetinghouse was built in the town of Lyman, and the old house was sold and taken down. Before the latter was removed meetings were held simultaneously for public worship in both houses. Two societies were incorporated under the statute, each bearing the name of the First Baptist Society in Kennebunk, and composed of certain of the grantees named in the deed, with others, and a part of the church connected with the old society, attached itself to one of the new societies and a part to the other. One society established public worship at the old and the other at the new house, and each claimed to be entitled to the premises in dispute. The plaintiff also professes to occupy the land under a lease from certain persons, who are named as grantees in the deed, as a committee of the society which worshipped in the new house, and the two defendants, who were grantees in the same deed, claimed to have a right to perform the acts complained of in the writ. Upon the pleadings and the above mentioned facts adduced by the plaintiff, a nonsuit was directed by the Court,

*512In trespass upon land, conveyed in trust, the trustees can maintain an action ; but if the cestui que trust be in actual possession, he should be the plaintiff, though it is otherwise in ejectment. 1 Chitty’s Pleadings, 49. An action can be maintained by a corporation, legally existing, for any invasion of their rights in real estate, in the same manner that it could be done by an individual who should be the owner. But one who is neither trustee or cestui que trust cannot maintain an action in his own name for the use of one or the other.

Assuming that the plaintiff was the minister of the society named in the deed, which is the cestui que trust, he cannot by virtue of that relation alone sustain the action for the use of that society, the minister not being, according to the terms of the deed, either trustee or cestui que trust.

But it is contended for the plaintiff, that the only issue presented by the pleadings, is, whether the committee (being three of the trustees named in the deed) under whom he claims by virtue of a lease, had authority to give him the right of possession and improvement of the premises described; and that it is immaterial, whether he is the minister of the first Baptist Society in Kennebunk or not, that term being used in the writ merely as descriptio personae.

Under a deed in trust the legal estate is in the trustee, and if there be several trustees, it is not in the power of one or more to exclude from the possession of the land conveyed another trustee. An attempt to do so would be inconsistent with rights, which. the law secures by such a deed. A lease given by a part of the trustees would confer no power superior to that possessed by the lessors, and possession taken under the lease could not in the least abridge the right of possession of other trustees; the latter, although a minority, would be equally entitled to possession with those who might constitute the majority, without being guilty of a trespass. Porter v. Hooper & al. 13 Maine R. 28.

When the deed was given by George Taylor, under which both parties claim, the society therein named as cestui que trust, does not appear to have had such an existence as would *513authorize them to act as a corporation; but it was well understood as being the society, which worshipped at the old house in Kennebunk. It does not appear from the evidence, that any attempt was ever made to obtain fronf the legislature an act, by which that society could exercise corporate powers. It was probably supposed by the grantees named in the deed, at the time of the execution thereof, that their purposes could be carried out by the trustees. But afterwards, a division of the old society having taken place, and two new societies hating been formed, each having some of the trustees in their number, and bearing the name of the First Society in Kennebunk, claim to be identical with the society referred to in the deed. Neither of these societies can be so considered. They are new corporations, having as such, no relation whatever to the old society. They may or not be composed partly of those who were trustees, or members of that society, for whose benefit the conveyance was made. Being so, and assuming the name of that society is no foundation at all for tho claim to be legally treated as the same. To yield to the truth of the proposition, that one or the other is the same thing as that, which was the cestui que trust in the deed, would be no less than to admit the absurdity, that an unincorporated society could be subdivided into an unlimited number of parts, and each be incorporated under the statute, preserving the name of the entire society, with which each might be identical and entitled to the use of the property appropriated.

Where it is alleged in the plaintiff’s replication, that he was the minister of the First Baptist Society in Kennebunk and in possession and improvement of the premises described, as such minister, and by virtue of the lease from the committee of said society, we are to understand, that the society referred to is the same named in the deed. The proof adduced upon the issue presented, does not sustain or tend to sustain the affirm-aitve of this issue, but proves the contrary, and therefore the lease can transfer no right greater, than that possessed by the trustees, who are the lessors ; and we have seen that their *514lights were not superior to those of the two defendants, who were also trustees under the deed.

Nonsuit confirmed.

Citation profile

How this case has been treated — in progress