
29 U.S. 480 (____)
4 Pet. 480
THE SOCIETY FOR THE PROPAGATION OF THE GOSPEL IN FOREIGN PARTS PLAINTIFFS
vs.
THE TOWN OF PAWLET AND OZIAS CLARKE.
Supreme Court of United States.

*484 The case was argued by Mr Webster, for the plaintiffs; and by Mr Doddridge, for the defendants. Mr Doddridge also presented the written argument of Mr J.C. Wright, for the defendants; as did Mr. Webster, an argument for the *485 plaintiffs, prepared by the counsel in the circuit court of Vermont.
*500 Mr Justice STORY delivered the opinion of the Court; Mr Justice BALDWIN dissenting on the first point.
This cause is certified to this court, from the circuit court for the district of Vermont; upon certain points upon which the judges of that court were opposed in opinion.
The original action was an ejectment, in the nature of a real action, according to the local practice, in which no fictitious persons intervene; and it was brought in May 1824, to recover a certain lot of land, being the first division lot *501 laid out to the right of a society in the town of Pawlet. The plaintiffs are described in the writ as "the society for the propagation of the gospel in foreign parts, a corporation duly established in England, within the dominions of the king of the united kingdom of Great Britain and Ireland, the members of which society are aliens and subjects of the said king." The defendants pleaded the general issue, not guilty, which was joined; and the cause was submitted to a jury for trial. By agreement of the parties at the trial, the jury were discharged from giving any verdict; upon the disagreement of the judges upon the points growing out of the facts stated in the record. Those points have been argued before us; and it remains for me to pronounce the decision of the court.
The first point is, whether the plaintiffs have shown that they have any right to hold lands.
In considering this point, it is material to observe that no plea in abatement has been filed, denying the capacity of the plaintiffs to sue; and no special plea in abatement, or bar, that there is no such corporation as stated in the writ[(a)]. The general issue is pleaded, which admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued. If the defendants meant to have insisted upon the want of a corporate capacity in the plaintiffs to sue, it should have been insisted upon by a special plea in abatement or bar. Pleading to the merits has been held by this court to be an admission of the capacity of the plaintiffs to sue. Conard vs. The Atlantic Insurance Company, 1 Peters's Rep. 386, 450[(b)].
But the point here raised is not so much whether the plaintiffs are entitled to sue generally as a corporation, as whether they have shown a right to hold lands. The general issue admits not only the competency of the plaintiffs to sue, *502 but to sue in the particular action which they bring. But in the present case, we think, there is abundant evidence in the record to establish the right of the corporation to hold the lands in controversy. In the first place, it is given to them by the royal charter of 1761, which created the town of Pawlet. Among the grantees therein named, is "the society for the propagation of the gospel in foreign parts," to whom one share in the township is given. This is a plain recognition, by the crown, of the existence of the corporation, and of its capacity to take. It would confer the power to take the lands, even if it had not previously existed. And the other proceedings stated on the record, establish the fact that the society had received various other donations from the crown of the same nature; and had accepted them. Besides, the act of 1794, under which the town of Pawlet claims the lands, distinctly admits the existence of the corporation, and its capacity to take the very land in controversy.
"Whereas," says the act, "the society for the propagation of the gospel in foreign parts is a corporation created by and existing within a foreign jurisdiction, to which they alone are amenable; by reason whereof, at the time of the late revolution of this and of the United States from the jurisdiction of Great Britain, all lands in this state, granted to the society for the propagation of the gospel in foreign parts, became vested in this state, &c."
And the act then proceeds to grant the right of the state, so vested in them, to the various towns in which they are situated. So that the title set up by the state is under the society, as a corporation originally capable to take the lands, and actually taking them; and their title being divested, and vesting in the state by the revolution. In the latter particular the legislature were mistaken in point of law. This court had occasion to decide that question, in The Society for the Propagation of the Gospel in Foreign Parts vs. The Town of New Haven, 8 Wheat. 464; where it was held that the revolution did not divest the title of the society, although it was a foreign corporation. That case came before us upon a special verdict, which found the original charter of the society granted by William the Third, and *503 its power to hold lands, &c. We do not, however, rely on that finding, as it is not incorporated into the present case. But we think the other circumstances sufficient, prima facie, to establish the right of the society as a corporation to hold lands; and particularly the lands in question. In Conard vs. The Atlantic Insurance Company, 1 Peters's Rep. 386, 450, the court held evidence, far less direct and satisfactory, prima facie evidence of the corporate character of the plaintiffs. A certificate ought accordingly to be sent to the circuit court in answer to the first question; that the plaintiffs have shown that they have a right to hold the lands in controversy.
The second point is, whether the plaintiffs are barred by the three years' limitation in the act of the 27th of October 1783, or any other statute of limitations of Vermont.
The act of 1785 recites in the preamble, that many persons have purchased supposed titles to lands within the state; and have taken possession and made large improvements, &c. It then proceeds to provide in the first eight sections, for the allowance of improvements, &c. to the tenants, in cases of eviction under superior titles. There is a proviso which prevents these sections from extending to any thing future. The ninth section is as follows: "provided always, and it is hereby further enacted by the authority aforesaid, that this act shall not extend to any person or persons settled on lands granted or sequestered for public, pious, or charitable uses; nor to any person who has got possession of lands by virtue of any contract made between him and the legal owner or owners thereof." The tenth section provides, that nothing in the act shall be construed to deprive any person of his remedy at law against his voucher. The eleventh and last section is as follows: "that no writ of right or other real action, no action of ejectment or other possessory action of any name or nature soever, shall be sued, prosecuted or maintained for the recovery of any lands, tenements or hereditaments, where the cause of action has accrued before the passing of this act; unless such action be commenced within three years next after the 1st of July in the present year of our lord, 1788."
*504 Now, in order to avail themselves of the statute bar under this last section, it is necessary for the defendants to show that the cause of action of the plaintiffs accrued before the passing of that act. To establish that, it is necessary to show that there had been an actual ouster of the plaintiffs, by some person entering into possession adversely to the plaintiffs. No such ouster is shown upon the facts. It is, indeed, stated, "that Edward Clarke, the father of the said Ozias Clarke, went into possession of the said lot in the spring of the year 1780, it not appearing that he had purchased any title thereto; and so continued in possession thereof until the said defendant entered as aforesaid;" that is under the lease of the town. Edward Clarke is therefore to be treated as a mere intruder, without title; and no ouster can be presumed in favour of such a naked possession. And it is not unworthy of notice, that the fourth section of the act of 1785 provided "that no person, who hath ousted the rightful owner, or got possession of any improved estate by ouster, otherwise than by legal process, shall take any advantage or benefit by this act." So that a plain intention appears on the part of the legislature not to give its protection to mere intruders, who designedly ousted the rightful owners.
It is also to be considered that the defendants do not assert any claim of title under him or in connexion with him; and the other circumstances of the case lead to the presumption, that he never set up any possession adverse to the society's rights; for the possession was yielded without objection to the town, when the act of 1794 enabled the town to assert a title to it.
The act of 1785, being then in terms applicable only to cases where the cause of action accrued before the passing of that act, cannot govern this case where no such cause existed. There is, moreover, another difficulty in setting it up as a bar, if the proviso of the ninth section extends, as we think it does, to every section of the act. It has been argued by the counsel for the defendants, that the ninth section ought to be restricted in its operation to the eight preceding sections. But we see no sufficient reason for this. The words are "that this act shall not extend," &c.; not that *505 the prior sections of this act shall not extend, &c. It would be strange, indeed, if the legislature should interfere to prevent any improvements being paid for, in cases of lands granted or sequestered for public, pious, or charitable uses; and yet should allow so short a period as three years to bar, for ever, the right of the grantees for charity. There are good grounds why statutes of limitation should not be applied against grants for public, pious, and charitable uses, when they may well be applied against mere private rights. The public have a deep and permanent interest in such charities; and that interest far outweighs all considerations of mere private convenience. The legislature of Vermont has thought so; for we shall find, in its subsequent legislation, that it has by a similar provision excepted from the operation of all the subsequent statutes of limitation, grants to such uses. There is then no reason why the court should construe the words of the ninth section as less extensive than their literal import. The case ought to be very strong, which would justify any court to depart from the terms of an act; and especially to adopt a restrictive construction which is subversive of public rights, and justified by no known policy of the legislature. We feel compelled, therefore, to construe the words, that "this act shall not extend, &c." as embracing the whole act, and carving an exception out of the operation of the eleventh section of it.
Let us then see how far any subsequent statute of limitations of the state applies to the case. The next statute in the order of time, is the act of the 10th of March 1787, which provided as follows: "that no writ of right or other real action, no action of ejectment, &c. shall "hereafter be sued, &c. for the recovery of any lands, &c. where the cause of action shall accrue after the passing of this act, but within fifteen years next after the cause of action shall accrue to the plaintiff or demandant, and those under whom he or they may claim. And that no person having a right of entry into any lands, &c. shall hereafter thereinto enter but within fifteen years after such right of entry shall accrue." This act contained no provision excepting grants for public, pious, or charitable uses from its operation. But it contained *506 a proviso that the act should not extend to bar any infant, person imprisoned, or beyond seas, without any of the United States. The act was prospective, and applied only where the cause of action accrued after the passing of it. This act was superseded and repealed by another act of the 10th of November 1797, which constitutes the present governing statute of limitations of the state. It contains, however, a proviso (sec. 13) that the act shall not be construed to extend to or affect any right or rights, action or actions, remedies, fines, forfeitures, privileges, or advantages, accruing under any former act or acts, clause or clauses of acts falling within the construction of that act, in any manner whatsoever; but that all proceedings may be had, and advantages taken thereon, in the same manner as though that act had not been passed; and that the former act or acts of limitation, clause or clauses of acts, which are or were in force at the time of passing the act, shall, for all such purposes, be and remain in full force. This proviso preserved the operation and force of the act of 1787, as to causes of action accruing in the intermediate period between the act of 1787, and the act of 1797.
In this view of the matter, it is important to consider the entry of the defendant under the lease of the town, on the 16th of April 1795. If that entry was adverse to the title of the plaintiffs, then the act of 1787 began to run upon it from that period; for the cause of action of the plaintiffs then accrued to them by the ouster.
It has been contended by the plaintiffs' counsel, that the entry of Clarke under the lease in 1795, was an entry for the plaintiffs, and in virtue of their title, and not adverse to it. We do not think so. The town of Pawlet claimed the right to the property, not as tenants to, or subordinate to the right of the plaintiffs; but as grantees under the state. Their title, though derivative from, and consistent with the original title of the plaintiffs, was a present claim in exclusion of, and adverse to the plaintiffs. They claimed the possession, as their own, in fee simple; and not as the possession of the plaintiffs. A vendee in fee derives his title from the vendor; but his title, though derivative, is adverse to *507 that of the vendor. He enters and holds possession for himself, and not for the vendor. Such was the doctrine of this court in Blight's Lessee vs. Rochester, 7 Wheat. Rep. 535, 547, 548. The lessee in the present case did not enter to maintain the right of the plaintiffs, but of the town. He was not the lessee of the plaintiffs, and acquired no possession by their consent, or with their privity. This entry then was adverse to any subsisting title in them, and with an intention to exclude it. It was therefore, in every just sense, an entry adverse to, and not under the plaintiffs.
The case then falls within the act of 1787; and unless the plaintiffs are "beyond seas" within the proviso of that act, they would, upon the mere terms of that act, be barred. The facts stated upon the record, do not enable us to say whether there is absolute proof to that effect. The plaintiffs are a foreign corporation, the members of which are averred to be aliens and British subjects; and the natural presumption is, that they are resident abroad. If so, there cannot be a doubt, that they are within the exception. If any of the corporators were resident in the United States, then a nicer question might arise as to the effect of the proviso; whether it applied to the corporation itself, or to the corporators, as representing the corporation. But this it is unnecessary to devise; and on this we give no opinion.
There is the less reason for it, because, by a subsequent act, passed on the 11th of November 1802, (long before the fifteen years under the act of 1787 had run,) it was provided "that nothing contained in any statute of limitations heretofore passed, shall be construed to extend to any lands granted, given, sequestered or appropriated to any public, pious, or charitable uses; or to any lands belonging to this state. And any proper action of ejectment or other possessory action may be commenced, prosecuted, or defended for the recovery of any such land or lands, any thing in any act or statute of limitations heretofore passed to the contrary notwithstanding." This act of course suspended the act of 1787, as to all cases within its purview. That the grants to the society for the propagation of the gospel were deemed to be grants for pious and charitable uses within it, is apparent *508 from the subsequent legislation of the state, as well as from the objects of the institution. In November 1819 the legislature passed an act repealing this exception, so far as related to the rights "of lands in the state, granted to the society for the propagation of the gospel in foreign parts," thus plainly declaring that they were previously protected by it. This repeal cannot have any retrospective operation, as to let in the general operation of the statute of limitations in the intermediate period between 1802 and 1819; but must upon principle be held to revive the statute only in future. The present suit was brought in 1824, and the statute period of fifteen years had not then run against the plaintiffs.
It is unnecessary to enter upon the consideration of the statute of limitations of 1797, which contains similar provisions as to this subject with that of 1787, and the exception of persons "beyond seas." Charitable and pious grants were not excepted from its operation; but that defect was cured by an act passed on the 26th of October 1801, in terms similar in substance to those of the act of 1802, already referred to. The act of 1797, applies in terms only to future causes of action, to causes of action accruing after the passing of the act; and limits the action to the period of fifteen years. If it had applied to the present case, it would have been open to the same reasoning upon the exceptions, which have been already suggested in reference to the act of 1787.
Upon this second question our opinion is, that a certificate ought to be sent to the circuit court, that the plaintiffs are not barred by the three years' limitation, in the act of the 27th of October 1785, or by any other of the statutes of limitations of Vermont.
The next point is, whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits; and if so, for what length of time.
Previous to the year 1797, the English action of ejectment was in use in Vermont, and the common law applicable to it, as well as the action for mesne profits consequential upon recovery in ejectment. By an act passed on the 2d of March 1797, the mode of proceeding was altered. *509 The suit was required to be brought directly between the real parties, and against both landlords and tenants; and by that and a subsequent act, the judgment was made conclusive between the parties. It was further provided, that in every such action, if judgment should be rendered for the plaintiff, he should recover, as well his damages, as the seisin and possession of the premises. This provision has ever since remained in full force, and has superseded in such cases the action for mesne profits. In November 1800, an act was passed, declaring, "that in all actions of ejectment which now are, or hereafter may be brought, the plaintiff shall recover nothing for the mesne profits, except upon such part of said improvements as were made by the plaintiff, or plaintiffs, or such person or persons under whom he, she or they hold." The act contained a proviso, that it should not extend to any person or persons in possession of any lands granted for public or pious uses. This act continued in force until November 1820, when an act passed containing the same general provision as to the mesne profits; but the proviso in favour of lands granted to pious and charitable uses was silently dropped, and must be deemed to be repealed by implication.
The question then is, whether the act of 1820 does not take away the right to mesne profits in this case; for the state of facts does not show that any improvements have ever been made by the plaintiffs. The treaty of peace of 1783, the British treaty of 1794, do not apply to the case. The right of action, if any, of the plaintiffs, did not accrue until the year 1795. The entry then made by the defendants was the first ouster: and at that time, in the action of ejectment, the plaintiffs could not have recovered any damages; but would have been driven to an action of trespass for mesne profits. The legislature was competent to regulate the remedy by ejectment, and to limit its operation. It has so limited it. It has taken away by implication the right to recover mesne profits, as consequential upon the recovery in ejectment, and given the party his damages in the latter action. It has prescribed the restrictions upon which mesne profits shall be recovered; and these restrictions are obligatory *510 upon the citizens of the state. The plaintiffs have not, in this particular, any privileges by treaty beyond those of citizens. They take the benefit of the statute remedy to recover their right to the lands; and they must take the remedy with all the statute restrictions.
Upon this last question our opinion is, that it ought to be certified to the circuit court, that under the laws of Vermont the plaintiffs are not entitled to recover any mesne profits; unless so far as they can bring their case within the provisions of the third section of the act of the 15th of November 1820.
This cause came on to be heard on the transcript of the record, from the circuit court of the United States for the district of Vermont, and on the points or questions on which the judges of the said circuit court were opposed in opinion, and which points or questions were certified to this court for its opinion, in pursuance of the act of congress for that purpose made and provided, and was argued by counsel; on consideration whereof, it is ordered by this court, that it be certified to the said circuit court, on the points aforesaid, that this court is of opinion, 1. That the plaintiffs have shown that they have a right to hold lands, and especially the lands in controversy. 2. That the plaintiffs are not barred by the three years limitation in the act of the 27th of October 1785, or by any other of the statutes of limitations of Vermont. And, 3. That under the laws of Vermont, the plaintiffs are not entitled to recover any mesne profits, unless so far as they can bring their case within the provisions of the third section of the act of Vermont of the 15th of November 1820. All of which is accordingly hereby certified to the said circuit court of the United States for the district of Vermont.
NOTES
[(a)]  Comyn's Dig. Abatement, E. 16. Mayor, &c. of Stafford vs. Bolton, 1 Bos. & Pull. 40. 1 Saunders's Rep. 340. Williams's Notes. 6 Taunt. Rep. 467. 7 Taunt. 546.
[(b)]  See the case of Sutton Hospital, 10 Co. 30, b. Comyn's Dig. Franchise, F. 6, 10, 11, 15. Capacity, A. 2. See also Proprietors of Kenebeck Purchase vs. Call, 1 Mass. Rep. 482, 484. Mayor, &c. of Stafford vs. Bolton, 1 Bos. & Pull. 40. 1 Saunders's Rep. 340, note by Williams.
