A committee chosen by a town to select and purchase a lot for a cemetery performed the duty assigned them, and made their report, which was accepted by the town. It was afterwards ascertained that a portion of the lot so located lay within twenty rods of a dwelling-house, and so could not be used for that purpose by reason of the statute. Held, that the committee might still, by virtue of their original appointment, purchase from the owner of the dwelling-house the right to locate the cemetery within twenty rods thereof.
SMITH, J.
The vote authorizing the committee to select and purchase a lot for a cemetery, means authority to purchase a lot which could be so used. A cemetery cannot be laid out within twenty rods of a "dwelling-house, store, or other place of business," without the consent of the owner of the same. G. L., c. 49, s. 2. So much of the land purchased by the committee as was situated within twenty rods of the dwelling-house owned by Pressey was unavailable for the purpose for which it had been bought, unless his consent could be obtained. The committee had authority to purchase his consent, if it was exercised seasonably; and the only question is, whether their authority as a committee had expired September 15, 1888. The purchase from Cobb was consummated, the deed taken, and the consideration paid, after the committee had made their report to the town, and between April 21 and May 12. The vote instructing the selectmen to lay out the new cemetery into lots, and to sell at auction the choice of as many lots as they should see fit, did not impose upon them duties which would bring them in conflict with the purchasing committee. There was no vote discharging the committee; and a purpose on the part of the town that the committee should not complete their unfinished labors does not appear from the action of the town in view of the circumstances as they existed. On the contrary, it may reasonably be inferred that the town expected the committee to do, within the scope of their authority, whatever was necessary to render the land purchased available for the purposes of a cemetery.
It is argued that Pressey was estopped to withhold his consent to the use of the land for a cemetery, and therefore that the release was without consideration. This objection is not tenable. Wyman had a contract for the purchase of the Pressey land, and was the equitable owner. It was Wyman, and not Pressey, who objected. It does not appear that he paid him any less for the land, and it is fair to infer that the money paid for the release was paid to Wyman. There was no estoppel.
The plaintiff is entitled to judgment for $100 and interest from the date of the writ.
Case discharged.
CLARK, J., did not sit: the others concurred.