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managers of the property thus appropriated—limitations upon the capacity of donors to make such gifts were first imposed. These commenced in England in the time of Henry III. ; but the learned authors of the history of the corporations of that realm affirm, that cities were not included in them-- perhaps upon the ground that the grants Tere for the public good ;' and, although the same effect was produced by the grant in perpetuity to the inhabitants,' ""the same practical inconvenience did not arise from it, por was it at the time considered a mortmain." 'A'century later there was a direct inhibition upon grants to cities, boroughs, and others, which have perpetual commonalty, and others which have offices perpetual,' and, therefore, 'be as perpetual as people of religion.' The English statutes of mortmain forfeit to the king or superior lord the estates granted, which right is to be exerted by entry; a license, therefore, from the king severs the forfeiture. The legal history of the continent on this subject does not materially vary from that of England. The same alternations of favor, encouragement, jealousy, restraint, and prohibition, are discernible. The Code Napoleon, maintaining the spirit of the ordinances of the monarchy, in 1731, 1749, 1762, provides that donations, during life or by will, for the benefit of hospitals of the poor of a commune, or of stablishments of public utility, shall not take effect, except so far as they shall be authorized by an ordinance of the gov. ernment. The learned Savigny, writing for Germany, says: “Modern legislation, for reasons of policy or political economy, has restrained conveyances in mortmain, but those restrictions formed no part of the common law. The laws of Spain contained no material change of the Roman and ecclesiastical laws upon this subject.”

$ 429. These Restrictions not in Force in this Country. “This legislation of Europe was directed to check the wealth and influence of juridicial persons who had existed for centuries there, some of whom had outlived the necessities which had led to their organization and endow. ment. Political reasons entered largely into the motives

Mereweth. & Steph. Hist. Corp. 489, 702.

for this legislation--reasons which never extended their influence to this continent, and, consequently, it has not been introduced into our systems of jurisprudence.


§ 430. Result of Legislation in Europe.—“The precise result of the legislation is, that corporations there in England and Europe), with the capacity of acquiring prop erty, must derive their capacity from the sovereign authority, and the practice is to limit that general capacity within narrow limits, or to subject each acquisition to the revisal of the sovereign."

§ 431. It is a settled rule of the common law that a grant, to be valid, must be to a corporation, or to some certain person named, who can take, by force of the grant. and hold either in his own right or as trustee.' Therefore, a grant by an individual, of a lot of land to “the people of” a specified county, not incorporated, is void. So a reservation in a deed, in favor of the inhabitants of an unincorporated place, is invalid.' But a grant by the State or

12 Kent Com. 282, 283; Whicker v. Hume, 14 Beav. 509; see, also, Chambers o. St. Louis, 29 Mo. 543, 575, and remarks of Scott, J.

? Per Mr. Justice Campbell, 15 How. 404_407.

3 Co. Litt. 3, a; 10 Co. 26, 6; Com. Dig. tit. Capacity, B. 1; Shep. Touch. 236. “ It is a general rule, that corporations must take and grant by their corporate name.” 2 Kent Com. 291. A corporation aggregate can have no predecessor, and in a writ of right can only count on its own seizin. A statute of 1772, in Massachusetts, provided that twelve persons should be chosen annually by the inhabitants of the town of Boston as overseers of the poor, and they were duly incorporated. In 1822 the town of Boston was changed to a city, the act providing for the election of a board of overseers for the city who shall have all the powers and be subject to all the duties now, by law, pertaining to the overseers of the poor for the town of Boston. It was decided, upon great consideration-Shaw, C. J., delivering the opinion—that this was a continuance, and not a dissolution or suspension, of the corporation of 1772; that the bodies were public corporations, aggregate and not sole, with perpetual succession; that a grant to them of real estate carried the fee, without being, to their successors, and that in a writ of right they can count only upon their own seizin within thirty years next before the commencernent of the action. Overseers of the Poor, &c. 0. Sears, 22 Pick. 122, 1839.

* Jackson o. Cory, 8 Johns. 385, 1811; Jackson v. Hartwell, Ib. 422. • Hornbeck o. Westbrook, 9 Johns. 73, 1812. See reference to this case

by the sovereign authority having the right to create corporations, to one or more persons who are named as patentees for themselves and the inhabitants of a designated town is valid, because the grant itself, coming from this source, confers a capacity to take and hold the lands in a corporate character.

§ 432. The English statutes of mortmain are not in force in this country, unless by virtue of express legislation to that effect;' and consequently, a municipal corporation has the common law or implied power, unless restrained by charter or statute, to purchase and hold all such real estate as may be necessary to the proper exercise of any power specifically granted, or essential to those purposes of municipal government for which it was created. This power


and Jackson 0. Cory, 8 Johns. 385, by Sarage, C. J., in North Hempstead ». Hempstead, 2 Wend. 109, 133. Although a deed may not operate as a grant because of a want of legal capacity in the grantee to take, yet if it contains a general covenant of warranty it may operate by way of estoppel. Terrett v. Taylor, 9 Cranch (U. S.) 43, 52, 53; Mason o. Muncaster, 9 Wheat. 445. As to grants and devises for charitable purposes, see infra.

North Hempstead v. Hempstead, 2 Wend. 109, 133, 1828; and see, also, Denton v. Jackson, 2 Johns. Ch. 320; 7 Ib. 254; Goodrell 0. Jackson, 20 Johns. 706; Jackson 0. Leroy, 5 Cow. 397; Bow v. Allentown, 34 N. H. 351,

The right of a municipal corporation to its grants of property is not destroyed by a change of its name, and an enlargement of its territory, and a reconstruction of its powers. Girard 0. Philadelphia, 7 Wall. 1; ante, chap. IV. sec. 52; chap. V.; chap. VII. sec. 115.

? Perin v. Carey (charitable devise to Cincinnati), 24 How. 465, 1860; Davison College v. Chambers' Executors, 3 Jones Eq. (N, C.) 253, 1857; 2 Kent Com. 282, 283; Chambers v. St. Louis, 29 Mo. 543, 575, per Scott, J.; 2 Wasb. Real Property (2d edition), 591, top; Paige o. Heinburg, 40 Vt. 81.

* Ketchum 0. Buffalo, 14 N. Y. 356, 360, 1856, per Selden, Jo. ; 2 Kent Com. 281; Co. Litt. 44 a, 3006; 1 Kyd on Corp. 76, 78, 108, 115; State o. Commissioners, &c., 3 Zabr. (N. J.) 510; Nicoll o. Railroad Company, 12 N. Y. (2 Kern.) 121, 127; McCartee v. Orphans' Society, 9 Cow, 437; Ex parte Iron Company, 7 Cow. 240, 552; Heirs of Reynolds v. Commissioners, &c., 5 Ohio, 204, 1831; Perin o. Carey, supra; State o. Brown, 3 Dutch. (N. J.) 13; Davison College 0. Chambers' Executors (full discussion), 3 Jones Eq. (N. C.) 253; Paige 0. Heinburg, 40 Vt. 81; State o. Madison, 7 Wis. 688; Louisville v. Commonwealth, 1 Duvall (Ky.) 295. Implied or express restrictions on the right to take and hold real estate are not, in this country, construed in a spirit of hostility and jealousy. Per Scott, J., in Chambers v. St. Louis, 29 Mo. 543, 573, 576.

may be, and indeed, often is, conferred in express terms, But it may result, in the absence of express provision, as a necessary incident to powers specifically granted. To illustrate the last proposition : Power is given to a city to “establish markets,” that is, public places for the sale of commodities. To establish such place, ground is necessary. A market house on the public streets, or on the public square, would be a nuisance. It could not be erected or established upon private property without consent or grant. Thus, by this course of reasoning, the result is reached that power to establish a market,” of necessity, implies or carries with it the power to lease or purchase the requisite site. Such an authority could not probably be deduced from the words to regulate markets,” because the words "to regulate" "naturally, if not necessarily, pre-suppose the existence of the thing to be regulated."

§ 433. The charter is the source of power in respect to the property rights of the corporation. If the charter be silent, the implied power exists, at least to the extent just stated, to acquire, hold, and alienate or dispose of property. But it is not unusual for the charter to grant the power and fix its limits. Where this done, the terms and purpose of the grant determine the nature, extent, and limitations of the power, the charter being construed, of course, in the light of the general legislation of the state.

And general authority to purchase and hold property should, doubtless, be construed to mean for purposes authorized by the charter, and not for speculation or profit."


'Ketchum 0. Buffalo, 14 N. Y. 356, 1856. See, also Peterson v. Mayor, &c. of New York, 17 N. Y. 449, reversing S. C., 4 E. D. Smith, 113, 1858; Le Couteleux o. Buffalo, 33 N. Y. 333, 1865.

Bank of Michigan o. Niles, 1 Doug. (Mich.) 401; Davison College v. Chambers' Executors, 3 Jones Eq. (N. C.) 253, 1857; State Bank o. Brack enridge, 7 Blackf. (Ind.) 395, 1815. Ante, chapters V., VI., XII., XIV. A special provision in a charter authorizing the corporation to take and hold real estate by purchase, is to be construed as meaning that it may do this, subject to the restrictions created by the general statutes of the state relating to this matter. McCartee v. Orphan Asylum Society, 9 Cow. 437, 1827. Charter and general law construed together, being in pari materia. Chambers o. St. Louis (Mullanphy Will Case), 29 Mo. 543, 1860. A city, owning the soil, may, like other owners, reclaim the land between high and low water

$ 434.

“The inference," says Chancellor Kent, from the statutes creating corporations and authorizing them to hold real estate to a certain limited extent is, that our statute corporations cannot take and hold real estate for purposes foreign to their institution." In an important

mark, and when thus reclaimed a highway may be laid out upon it. Richardson v. Boston, 24 How. (U. S.) 188, and cases cited. Ante, sec. 73. Rights to alluvion within corporate limits: Kennedy v. Municipality, 10 La. An. 54; Barett v. New Orleans, 13 16. 105; 16. 154; Ib. 349; Remy 2. Municipality, 11 Ib. 148; Carrollton Railroad Company o. Winthrop, 5 IV. 36; Beaufort v. Duncan, 1 Jones Law, 234; Richardson v. Boston, 24 How. (U. S.) 188, and cases cited. Rights as riparian proprietor to wharf out : Ante, sec. 70; Dana v. Wharf Company, 31 Cal. 118; People o. Broadway Wharf Company, 16. 33; San Francisco 0. Calderwood, 16. 585; Bell v. Gough, 3 Zabr. 624. Ante, secs. 70–75.

A municipality owning land is not estopped to claim title to it, because its officers, without authority, have assessed the same to a private person, re. turned the same as delinquent, and subsequently sold it at a tax sale. The reason is, that all these acts of its officers are unauthorized and void, and a purchaser at a tax sale is bound to take notice of the extent of their powers. St. Louis o. Gorman, 29 Mo. 593, 1860. Same principle: Rossire v. Boston, 4 Allen, 57; McFarland v. Kerr, 10 Bosw. (N. Y.) 249.

As to adverse possession against public corporations: Ib.; Turney v. Chamberlain, 15 Ill. 271; Alton o. Illinois Transfer Company, 12 Ill. 60.

Special powers construed : State v. University, 4 Humph. 157; State v. Madison, 7 Wis. 688; Beaver Dam v. Frings, 17 Wis. 398; Galloway v. Loudon, Law Rep. 1 H. L. 34; Heyward v. Mayor, &c. of New York, 7 N. Y. 314; Lauenstein v. Fond du Lac, 28 Wis. 336, 1871. A deed of land to a town and its assigns, for value, expressed in the usual terms of a conveyance, and containing covenants, was construed to grant a fee simple, although the land was expressed to be for the use of a common, or a meeting-house green." Beach v. Haynes, 12 Vt. 15, 1840; State v. Woodward, 23 Ib. 92, 1850. Wben conveyance to a corporation passes a full title, and not one in trust or conditional: Kerlin v. Campbell, 3 Harris (Pa.) 500; Wright v. Linn, 9 Barr, 433; Holiday o. Frisbie, 15 Cal. 630. When a tract of land is granted for a specific purpose, as for a school house, and a school house is erected and a school maintained therein, the grant is not forfeited by the use of a portion of the land, not needed for the school, for other purposes, such as leasing it for cultivation, or for building an engine house thereol, or the like. Castleton v. Langdon, 19 Vt. 210, 1847; vide Index-Dedicul tion. Under the power to purchase and hold property, a city and county may own buildings us tenants in common, to be used for their respective public purposes. De Witt v. San Francisco, 2 Cal. 289, 1852. See Bergen e. Clarkson, 1 Halst. (N. J.) 352. Ante, p. 209, sec. 92. Rights of county and city respecting jail built by the corporate authorities of the city. Felts v. The Mayor, &c., 2 Head (Tenn.) 363.

·Kent Com. 283.

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