Mason V. Muncaster. parish of Fairfax, to which it belonged. The 1824. Vestries chosen in 1804, and subsequently, cannot be deemed the Vestries of the parish of Fairfax, but must be considered as the Vestries of the Episcopal Church of Alexandria, because, in the parish books, the entries constantly style them the Vestry of the Protestant Episcopal Church at, or in, or of, Alexandria, and not the Vestry of the parish of Fairfax. The congregation of Christ's Church actually separated themselves, in 1803, from the parish of Fairfax, and formed a distinct Episcopal Church; and the elections were made by subscribers and contributors to the Episcopal Church in Alexandria, and not by the parishioners at large of the parish of Fairfax. 2. This defect in the title being thus made out, it follows that the appellant has a right to require that the contract should be rescinded, unless there be some special objection to preclude him. As to the sale being under a decree, the English practice on this subject relates to objections arising on the abstract which is presented to the purcha ser. But defects subsequently discovered, may be objected, and if it appears that the vendor can make no title, the bill will be entertained. 'As to notice, there is no proof of actual notice; and the circumstances are not sufficient to infer constructive notice. Nor has the objection to the title been varied by taking possession. The doctrine is, that if the vendee has knowledge of the defects before he takes possession, it is considerea as a waiver of the objection, and it will be found that all the cases turn upon this distinction. 1824. Mason V. Muncaster. On the part of the respondents, it was insisted, 1. That the appellant had full notice, either actual or constructive, at the time of the sale, of all the facts and circumstances of which he now seeks to avail himself, in order to rescind the sale. The proceedings in the former case were alone sufficient to charge him with notice. 2. This being a judicial sale, under a decree, the party was bound to have applied to the Court below, either before confirmation of the sale, or afterwards, to rescind the sale, and cannot now maintain an independent bill for that purpose, the effect of which would be, collaterally, to set aside the sale, as it stands confirmed by the report." 3. The contract has been executed on the part of the appellant, by taking possession of the land, and it is now too late for him to make any objection to the sufficiency of the title." 4. But a careful examination would show that there was not any defect in the title. The former decision of this Court had put at rest the question as to the sufficiency of the deed from Jennings, to pass his title to the Church-Wardens, for the benefit of the parish. It was there determined that the conveyance could not operate by way of grant, but might operate by way of estoppel, to confirm to the church, and those claiming under it, the perpetual estate in the land. a 1 Fonbl. Eq. 371. Note 6. 1 Atk. 489. 3 Ves. jr. 333. 3 P. Wms. 220. 306. 1 Rev. Code, 80. s. 34. b 1 Ves. jr. 221. 226. 3 P. Wms. 191. 4 Dess. Ch. Rep. 134. 12 Ves. 25. c Terrett v. Taylor, 9 Cranch, 53. The present Vestry of the Episcopal Church at Alexandria, called Christ's Church, are the legal successors of the Vestry of the parish of Fairfax. From the year 1765 until 1801, the town of Alexandria was a part of the county of Fairfax, and the parish of Fairfax. After the year 1792, the Vestry met exclusively in Alexandria; the congregation at the Falls Church, by degrees became extinct; and the Vestry of the parish, with the church at Alexandria, has been constantly kept up, whilst the congregation that used to assemble at the Falls Church has ceased to exist. The consequence is, that the glebe land belongs to the Alexandria congregation, as much as if the two congregations had agreed to meet in the church at Alexandria, and had disposed of the other. There never was, and there never could be, two Vestries in the parish, that is, one for each church. Since the year 1776, there have been no compulsory means used for the support of the church, and it has rested on the voluntary contributions of the parishioners; yet every thing that has been done in respect to the property of the church, shows conclusively the regular succession of this Church and Vestry, as the Church and Vestry of the parish of Fairfax. The Vestry has been elected by the members and contributors to the church, but the right of voting did not belong to the parishioners generally, it was confined to those members and contributors. At the same time, no inhabitant of the parish has been denied the privilege of becoming a contributor, with its consequent right of voting. All parties who had 1824. Mason Muncaster. Mason V. Muncaster. 1824. any title to the property, were before the Court in the former case, in which the sale was decreed." It was unnecessary to make the whole body of parishionars parties to that suit. They have not individually any right or title to the property. It is the property of the parish, and the Vestry are the legal agents and representatives of the parishioners, with authority to administer and dispose of it. Feb. 20th. Mr. Justice STORY delivered the opinion of the Court. Upon the very voluminous pleadings in this case, assuming more the shape of elaborate arguments, than the simple and precise allegation of facts, which belong to Chancery proceedings, the principal questions discussed have been, 1. Whether the Vestry of the Episcopal Church of Alexandria, now known by the name of Christ's Church, is the regular Vestry in succession of the parish of Fairfax. 2. Whether the existence of another parish church, called the Falls Church, within the same parish, has any material bearing upon the title, either as to making parties, or settling the right to the glebe. 3. Whether the appellant had full notice of the true nature of the title before the purchase, and so took it with its infirmities, if any such existed. 4. Whether, this being the case of a judicial salc under a decree, the party was not bound to have applied to the Court below, before confirmation of the sale, or a 3 Ves. jr. 505 afterwards, to rescind the sale; and can now maintain an independent bill for that purpose, the effect of such bill being collaterally to set aside the sale, as it stands confirmed by the report. Another point was made at the bar, as to the sufficiency of the conveyance by Jennings to the Church-Wardens, in 1770, to pass his title in fee for the benefit of the parish. But that point was put at rest, in the case of Terrett v. Taylor, and is not now open for discussion.* a. Upon this point, the Court says, in the former case, “ Upon inspecting the deed, which is made a part of the bill, and bears date in 1770, the land appears to have been conveyed to the grantees, as Church-Wardens of Fairfax, and to their successors in that office, for ever It is also averred in the bill, that the plaintiffs, together with two of the defendants, (who are ChurchWardens,) are the Vestry of the Protestant Episcopal Church, commonly called the Episcopal Church of Alexandria, in the parish of Fairfax, and that the purchase was made by the Vesty of said parish and church, to whom the present Vestry are the legal and regular successors in the said Vestry; and that the purchase was made for the use and benefit of the said church in the said parish. No statute of Virginia has been cited, which creates Church-Wardens, a corporation for the purpose of holding lands; and at common law, their capacity was limited to personal estate. (1 Bl. Com. 394. Bro. Abr. Corp. 76. 84. 1 Roll. Abr. 893. 4. 10. Com. Dig. tit. Esglise, F. 3. 12 Hen. VII. 27. b. 13 Hen. VII. 7. 9. b. 37 Hen. VI. 6. 30. 1 Burns' Eccles. Law, 290. Gibs. 215.) It would seem, therefore, that the present deed did not operate by way of grant, to convey a fee to the Church-Wardens and their successors; for their successors, as such, could not take: nor to the Church-Wardens in their natural capacity; for heirs' is not in the deed. But the covenant of general warranty in the deed, binding the grantors and their heirs for ever, and warranting the lands to the Church-Wardens and their successors for ever, may well operate, by way of estoppel, to confirm to the church and its privies the perpetual and beneficial estate in the land." 9 Cranch, 52, 59. 1824. Mason V. Muncaster. |