Dorsey, J.,
delivered his opinion as follows :—
Having assented to the affirmance of the order of the cofirt below, dissolving the injunction issued in this case, for different reasons than those expressed in the opinion of this court, it is due to those from whom I differ, as well as to myself, that I should briefly state my views upon this subject. The gene[401]*401ral power of the corporation of Baltimore, to charge the ordinary tax for the paving of streets on the adjoining lots, in front whereof the pavement has been made, was conceded in the argument of both parties; as well it might be, after the principle has been so fully settled by the decisions of this court. But it is insisted, that the lot in question is exempt from such a charge, because it has been appropriated as a site for a church and grave yard, for the Roman Catholics of the city of Baltimore. And to establish such an exemption, numerous acts of Assembly, imposing taxes, or burthens, have been referred to, in which the exemption of such property has been specifically provided for. So far from such acts of Assembly shewing a general exemption from such burthens, independently of legislative enactment, they form the strongest ground for the opposite Conclusion; and assume the liability of such property, but for the special statutory exemption. I think, therefore, that the injunction issued in this case, ought to have been dissolved, because the lot of ground in question, was legally chargeable with the burthen attempted to be imposed upon it.
But suppose such legal liability be not so clear; and that it is a doubtful question of law, or that the legal exemption is clearly sustainable. What is the proper tribunal for the determination of such a question? Not a court of equity; but a court of law. There is no sufficient ground for the interposition of a court of equity, by way of injunction. By permitting the appellee to proceed in doing that, against which he has been enjoined, no irreparable injury or injustice is done to the appellant. If the property were liable to the charge, it Was against law, equity, and conscience, for a court of equity to interfere to prevent its enforcement. If it were not liable, then no such injury would have been, by the acts enjoined, inflicted upon the appellants, or any body else, as would have warranted the interposition of a court of equity, by way of injunction. The contemplated sale for the payment of the paving tax, would have divested the owners of the lot of no right, legal or equitable. The purchaser at the sale must have sued in ejectment, to recover possession; and in that action he must have been defeated, if the paving tax were not legally [402]*402charged upon, the property. As an authority for this, if indeed an authority could be requisite to establish so plain a proposition, see The Trustees of Louisville vs. Gwatheney and Grentsinger, 1 A. K. Marshall, 554. Upon this ground, therefore, the order dissolving the injunction ought to be affirmed.
But I cannot assent to the affirmance of the order appealed from, upon the ground that the appellants have no standing in a court of equity, and for that reason, only, not entitled to the relief they seek. Such a proposition assumes, that Robert Walsh, Jr., the heir at law of the surviving trustee, would be entitled to such an injunction as was issued in this case; that he had no interest in the lot of ground, but for the protection of the rights and interests of the cestui que trusts, the Roman Catholics of the city of Baltimore, is apparent upon the face of the conveyance. If then such a trustee refuse to exert the powers necessary for the protection of his cestui que trusts ; or be in a situation, as here, where he has not the means of doing so; should a court of equity deny all relief to an application of the cestui que trusts; on the ground that they cannot be heard in their own behalf, that they have no standing in a court of chancery? Nay, is it not a fundamental distinction between courts of law and courts of equity, that in the former, cestui que trusts cannot be parties, their rights not being recognised at law; but in the latter, they not only may, but must be parties, in all cases where their rights or interests are to be adjudicated? The appellants are Roman Catholics of the city of Baltimore. As such they are cestui que trusts, intended to be benefited by the deed from Fell. If they have no standing in a court of equity, when seeking the protection of then-rights, nobody else can have any. In respect to himself, the rights of the trustee are purely legal; and having no personal interest in the trust fund, he would have no pretence for claiming the interposition of a court of equity, but for the protection of the interests of his cestui que trusts. If for them he could seek it, they can seek it for themselves.
In the case before us, no question can arise as to the forfeiture of the estate conveyed, by a breach of the condition annexed to it. The heirs of Fell, only, and not strangers to [403]*403tlie deed, can take advantage, and claim the benefit of such a forfeiture.
Chambers, J.,
delivered the opinion of this court.
The questions which relate to the merits of this case, involve considerations of the deepest interest to the feelings of the parties affected by the proceedings set forth in the bill.
The prospect of being called to witness the exposure to public sale of the mouldering remains of those who gave to us our being, or received theirs from us, is quite sufficient to call into exercise the warmest passions indulged by a community, of refined sensibilities. Reverence for the dead, must be the sentiment of all who can respect the living. And although the view taken by the court, will prevent them from expressing an opinion of the law, as applicable to the merits of the case, they will not consider it out of place to say, that they are fully convinced of the political and moral obligation of the constituted authorities, to protect the community over which they exercise jurisdiction, from the infliction of such injuries. They owe it to their citizens, as well upon the principle of “protection,” against an act more calculated to destroy their happiness, than are many of the petty offences against which their enactments are properly directed, as also upon the principle of cultivating a sound state of social, moral, and religious character, which cannot be successfully attained by the precepts of schools and colleges, while their instructions are counteracted by the exhibition of spectacles which must shock, and ultimately weaken, the moral sense.
They owe it to the ashes of the dead. Instinct teaches the propriety of reverence for the dead, and the practice of all ages and people has conformed to its teaching.
The court however in the present case, have no other purpose in alluding to such considerations, than to invite the notice of the proper authorities to tlie subject, that they may exempt from sale, as well the temples set apart for the worship and service of that Almighty Being, whose we are, ourselves, and whose, is all we have, as also the ground consecrated to the undisturbed repose of the dead.
[404]*404We propose to decide the case before ns on its peculiar circumstances. The deed from Fell, is for the use “of the Roman Catholics of Baltimore town,
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Dorsey, J.,
delivered his opinion as follows :—
Having assented to the affirmance of the order of the cofirt below, dissolving the injunction issued in this case, for different reasons than those expressed in the opinion of this court, it is due to those from whom I differ, as well as to myself, that I should briefly state my views upon this subject. The gene[401]*401ral power of the corporation of Baltimore, to charge the ordinary tax for the paving of streets on the adjoining lots, in front whereof the pavement has been made, was conceded in the argument of both parties; as well it might be, after the principle has been so fully settled by the decisions of this court. But it is insisted, that the lot in question is exempt from such a charge, because it has been appropriated as a site for a church and grave yard, for the Roman Catholics of the city of Baltimore. And to establish such an exemption, numerous acts of Assembly, imposing taxes, or burthens, have been referred to, in which the exemption of such property has been specifically provided for. So far from such acts of Assembly shewing a general exemption from such burthens, independently of legislative enactment, they form the strongest ground for the opposite Conclusion; and assume the liability of such property, but for the special statutory exemption. I think, therefore, that the injunction issued in this case, ought to have been dissolved, because the lot of ground in question, was legally chargeable with the burthen attempted to be imposed upon it.
But suppose such legal liability be not so clear; and that it is a doubtful question of law, or that the legal exemption is clearly sustainable. What is the proper tribunal for the determination of such a question? Not a court of equity; but a court of law. There is no sufficient ground for the interposition of a court of equity, by way of injunction. By permitting the appellee to proceed in doing that, against which he has been enjoined, no irreparable injury or injustice is done to the appellant. If the property were liable to the charge, it Was against law, equity, and conscience, for a court of equity to interfere to prevent its enforcement. If it were not liable, then no such injury would have been, by the acts enjoined, inflicted upon the appellants, or any body else, as would have warranted the interposition of a court of equity, by way of injunction. The contemplated sale for the payment of the paving tax, would have divested the owners of the lot of no right, legal or equitable. The purchaser at the sale must have sued in ejectment, to recover possession; and in that action he must have been defeated, if the paving tax were not legally [402]*402charged upon, the property. As an authority for this, if indeed an authority could be requisite to establish so plain a proposition, see The Trustees of Louisville vs. Gwatheney and Grentsinger, 1 A. K. Marshall, 554. Upon this ground, therefore, the order dissolving the injunction ought to be affirmed.
But I cannot assent to the affirmance of the order appealed from, upon the ground that the appellants have no standing in a court of equity, and for that reason, only, not entitled to the relief they seek. Such a proposition assumes, that Robert Walsh, Jr., the heir at law of the surviving trustee, would be entitled to such an injunction as was issued in this case; that he had no interest in the lot of ground, but for the protection of the rights and interests of the cestui que trusts, the Roman Catholics of the city of Baltimore, is apparent upon the face of the conveyance. If then such a trustee refuse to exert the powers necessary for the protection of his cestui que trusts ; or be in a situation, as here, where he has not the means of doing so; should a court of equity deny all relief to an application of the cestui que trusts; on the ground that they cannot be heard in their own behalf, that they have no standing in a court of chancery? Nay, is it not a fundamental distinction between courts of law and courts of equity, that in the former, cestui que trusts cannot be parties, their rights not being recognised at law; but in the latter, they not only may, but must be parties, in all cases where their rights or interests are to be adjudicated? The appellants are Roman Catholics of the city of Baltimore. As such they are cestui que trusts, intended to be benefited by the deed from Fell. If they have no standing in a court of equity, when seeking the protection of then-rights, nobody else can have any. In respect to himself, the rights of the trustee are purely legal; and having no personal interest in the trust fund, he would have no pretence for claiming the interposition of a court of equity, but for the protection of the interests of his cestui que trusts. If for them he could seek it, they can seek it for themselves.
In the case before us, no question can arise as to the forfeiture of the estate conveyed, by a breach of the condition annexed to it. The heirs of Fell, only, and not strangers to [403]*403tlie deed, can take advantage, and claim the benefit of such a forfeiture.
Chambers, J.,
delivered the opinion of this court.
The questions which relate to the merits of this case, involve considerations of the deepest interest to the feelings of the parties affected by the proceedings set forth in the bill.
The prospect of being called to witness the exposure to public sale of the mouldering remains of those who gave to us our being, or received theirs from us, is quite sufficient to call into exercise the warmest passions indulged by a community, of refined sensibilities. Reverence for the dead, must be the sentiment of all who can respect the living. And although the view taken by the court, will prevent them from expressing an opinion of the law, as applicable to the merits of the case, they will not consider it out of place to say, that they are fully convinced of the political and moral obligation of the constituted authorities, to protect the community over which they exercise jurisdiction, from the infliction of such injuries. They owe it to their citizens, as well upon the principle of “protection,” against an act more calculated to destroy their happiness, than are many of the petty offences against which their enactments are properly directed, as also upon the principle of cultivating a sound state of social, moral, and religious character, which cannot be successfully attained by the precepts of schools and colleges, while their instructions are counteracted by the exhibition of spectacles which must shock, and ultimately weaken, the moral sense.
They owe it to the ashes of the dead. Instinct teaches the propriety of reverence for the dead, and the practice of all ages and people has conformed to its teaching.
The court however in the present case, have no other purpose in alluding to such considerations, than to invite the notice of the proper authorities to tlie subject, that they may exempt from sale, as well the temples set apart for the worship and service of that Almighty Being, whose we are, ourselves, and whose, is all we have, as also the ground consecrated to the undisturbed repose of the dead.
[404]*404We propose to decide the case before ns on its peculiar circumstances. The deed from Fell, is for the use “of the Roman Catholics of Baltimore town, thereon to build, constitute and erect, a church or chappel, and to lay out a burying ground for the property and advantage of the said Roman Catholics of Baltimore town, and for no other use,” &c. And it is declared to be the true intent of the parties, “that if the said trustees, the survivor or survivors of them, or their assigns, do not build the said church or chappel on the land aforesaid, and appropriate the residue for a burial ground for the Roman Catholics of Baltimore town,” then the deed is to be vpid, and “the reversion, and remainder, &c., to be and remain to the said William Fell, his heirs,” &c. It cannot be doubted, that if it was competent to the grantor to make the conveyance to the uses expressed in the deed, it was equally competent to provide for a restoration of the property to himself or his heirs, on the failure of the grantees to apply it tp the purposes of the grant. If the grantees could decline the execution of the trust, ip one particular, they had equal authority to neglect it in another ; if they could fail to build the church, they had the same power to decline using the “residue of the land, as a burial place,”
The bill, in fact, does allege an entire alteration in the use of the burial ground, as defined, in the deed, when it says, that sipce the erection of St. Patrick’s Church — which is not on the granted premises, — “the use of said burial ground hath been confined to the congregation of that church.”
As the foundation of title, the bill alleges, that the lot was used as a burial ground during the life of Fell, and with his knowledge, consent, and approbation, and with the knowledge and assent of the trustees, and that after the execution of the deed, “the members of the Catholic Church in the eastern part of the city,” with the knowledge and consent of the surviving trustee, and with the knowledge of, and without-objection from, “the heirs of Fell, did erect St. Patrick’s Church on another lot,” retaining the use of the lot so conveyed by Fell, as a burial ground, for the congregation of said church.
[405]*405We cannot agree with the appellant’s counsel, that any or all of these facts can give to the complainant, Dolan, as a priest of the Catholic Church in said city, and pastor of St. Patrick’s Church, “or to the other complainant, Peter Foy, who claims as a resident of the city, and a member of the Catholic Church, before and at the time of the date of said deed, and ever since,” and as having “buried in the said ground, members of his family, who were members of the Catholic Church, at the time of death,” any interest, legal or equitable, to entitle them to claim the interposition of this court.
Objection was taken to the bill, for the systematic and uniform departure from the language of the deed, in describing the persons for whose use the property was intended. In every instance they are called in the deed “Roman Catholicsin every instance they are called in the bill, “ Catholics,” a designation which, if not common to every branch of the Christian Church, is certainly not exclusively applicable to the particular branch whose members claim under this deed.
We however waive this point, which might be the occasion of an amendment, and we waive also another, not alluded to in the argument, to wit, the sufficiency and certainty in the intended objects of the trust.
We do not think the appellants, or either of them, have any standing in a court of equity, which can entitle them to the interposition of its process. If the conditions of the deed have not been performed, the whole estate, legal and equitable, will have reverted to the heirs of the grantor, unless the heirs of the surviving trustee can allege, and prove in a court of equity, such positive agreement on the part of Fell, or his heirs; or such specific acts of the parties, with the distinct knowledge of the grantor, or his heirs, amounting to evidence of such an agreement, as would entitle the claimants, by a bill for specific execution of such agreement, to a deed of conveyance, discharged of the conditions so violated. There is no such agreement, there are no such facts alleged in this bill, — The trustees had no power to alter or change the na[406]*406ture and object of the trust, or dispense with the exact performance of the condition; a court of chancery has no such power. The owner of the property had the exclusive right to prescribe the terms of his grant, and in case of non-compliance with them, the grantees must suffer the just and inevitable consequences of their failure. We do not mean to say, that title could be derived from Fell, or his heirs, in no other mode but by a formal deed, duly executed and recorded, to enable a court of equity to enforce rights acquired by their assent, but there is nothing set forth in the proceedings, which can be regarded as at all sufficient for that purpose. The pastor of Si. Patrick’s Church, as such, has no right to, or control over, the property, by the terms of the deed; or by any appointment of the grantor, or his heirs, or even of the trustees. Nor is the interest of the other appellant, in any view we can take of the subject, such as will entitle him to the proceeding which has been resorted to.
We are compelled therefore to affirm the decree of Baltimore county court, dissolving the injunction.
decree affirmed.