UNION BAPTIST SOCIETY vs. THE TOWN OF CANDIA

The 4th, 5th, and 6th articles in our Bill of Rights, make ample provision for liberty of conscience.(l) But freedom of belief and of worship in religion is one thing; the rights of property are another, and are totally distinct.

( 1 ) 9 Cranch, 333, 334

In Massachusetts and Vermont, express statutes have been enacted on the subject of property dedicated to pious uses. 9 Cranch 335, Pawlet vs. Clark et al.—Colonial Charters 606.—5 Mass. Rep. 554.—14 ditto 338.

In this state, however, neither the constitution nor statutes have attempted to regulate the remedies, the titles, or the income of such property; and consequently all donations of it, whether to ministers, churches, parishes, or towns, must be governed by the established principles of the common law.(l) ⅝

At the same time we wish it distinctly understood, that if those principles are in any case clearly inapplicable to our state of society and our political institutions, we shall not hesitate to disregard them; and, on the subject of religion, none feel more earnestly disposed than ourselves to enforce the sacred injunction of the constitution, that “ every de- “ nomination of Christians, demeaning themselves quietly and “ as good subjects of the state, shall be equally under the projection of the law.” (1 New-Hampshire Laws, 2.)

But the facts in this case do not raise the important questions, contemplated by the plaintiffs, whether a town, as a civil corporation, has the sole right; or whether each individual, each settled minister, each religious society, or each religious incorporation in a town, has a proportionate right to property given “ for the use of the ministry.”

Because the lot No. 90, was granted to Chester, and not to Candia; and 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 to the plaintiffs. The plaintiffs are incorporated in Candia, not in Chester; 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, 10 Mass. Rep. 342, 94 Semb. 7 Mass. Rep. 445.

It is questionable, whether the trust would not have been violated, by an attempt to pass the title to Candía.* True it is, that Candía has since proceeded to sell this lot: but upon these facts, the sale could pass no tide to the purchasers, and upon the covenants or otherwise, the town is liable to refund to them whatever has been received.

Nor is Candía estopped to deny its title to this lot in an action with the present plaintiffs, whatever might be the casein an aclion with parties or privies to the sale. Com. Di. "Estoppel" C.—Co. Litt, 352a. 2 D. & E. 169, Fairtitle vs. Gilbert et. al.

Whether Candía may not have exercised an adverse possession over this lot more than twenty years; and, whether such possession would bar the title of a public corporation, like Chester, or of other claimants not then perhaps in esse, are questions, which do not arise on the present testimony.