This was an action of assumpsit for the use and occupation of a house by the defendants for town meetings. Upon the facts reported, the jury were instructed, for the purposes of the trial, that the defendants had no right to hold their meetings in the said house against the will of the proprietors ; or, if they ever had such a right, it was terminated by the sale to the plaintiff. To these instructions the defendants except; and the main question is, whether the defendants had a right to hold their meetings in the house purchased-by the plaintiff, without his consent, or payment therefor.

The plaintiff purchased the house in 1841, from the Congregational Society in Rehoboth, and their title was derived from the proprietors of the common and undivided lands in that town. In their deed to the society, it appears that by the vote of the proprietors, authorizing the said conveyance *30to the society, a reservation was made in favor of the defendants, granting them the privilege of holding town meetings in the said meeting-house, and that the committee, appointed to make the deed, were directed to make it with said reservation. It has been argued for the plaintiff that this vote is recited in the preamble of the conveyance, and that no such reservation qs contained in the granting part of the deed. But this argument cannot avail the plaintiff, for if the grant was not made in pursuance of the vote, the conveyance was made without authority, and was void. And the grantees, in that case, would hold under the vote of the proprietors, subject to the reservation. But there can be no doubt that the conveyance was intended to be made in pursuance of the vote, and may be so construed.

This privilege had been enjoyed for nearly fifty years before the sale of the house to the plaintiffs; and after such a long and undisturbed enjoyment, the society could not be allowed to dispute the defendants’ right. So it was decided in Goddard v. Dakin, 10 Met. 94. And as the plaintiff had notice of this reservation, by the record of the deed to the society, he, we think, would be equally bound by the estoppel. If, however, there were any doubt on this point, we think a grant may be presumed from the Congregational Society.

To this ground of defence it is objected, that the defendants are estopped to deny the plaintiff’s title, by the agreement made with the plaintiff by two of the selectmen of the town, as stated in the report of the case. If the selectmen had been authorized by the defendants to make the agreement", this might be considered a valid objection. But there was no evidence of any such authority, and the selectmen were not authorized, by virtue of their office, to make the agreement in behalf of the town. This agreement was inadvertently made, probably under a mistake of the defendants’ rights. Subsequently, when the keys of the house were delivered to the selectmen by the plaintiff, they asserted the right of occupation by the town; and although this right was denied by the plaintiff, he suffered them to take away the *31keys. Whether this might he considered as an implied consent, on his part, that the liability of the town to pay for the occupation of the house was to depend on the validity or invalidity of their title, it is not necessary to decide, as the selectmen had no authority to bind the town. 16 Mass. 48.

It has been contended by the plaintiff’s counsel, that by the votes of the town to build a new town house, they have impliedly abandoned their right in the plaintiff’s house. But these votes, we think, do not justify any such implication. The votes were prospective, and were passed in contemplation of the necessity of providing a new place for town meetings when the old meeting-house should be removed.

New trial granted