Gasely v. Separatists' Society of Zoar

13 Ohio St. 144, 13 Ohio St. (N.S.) 144

• Court: Ohio Supreme Court
• Decided: December 15, 1862
• Status: Published

Opinion

Peok, J.

The original complainant, Anna Maria Gasely, claiming to be a member of an unincorporated religious society, called “The Separatists’ Society of Zoar,” and a joint and equal owner with her associates, of a large real and personal estate belonging to the association, in the county of Tus-carawas and elsewhere, sought in this action, to have an account of all its real and personal estate, and an assignment to her in severalty of her interest therein; and this right, since her decease, pending the litigation, is re-asserted by her heirs and personal representatives, who are now parties to the suit.

The right of Mrs. Gasely, and those claiming under her to an account and partition of the Zoar estate, if such right exists, has its origin in the articles of 1824, which were' signed by her on attaining majority in that year.

Prior to that time, she was not a member nor entitled to a proportionate share of the property. Her father was, however, a member of the society, and she had been living with him as one of his family, from his arrival at Zoar, in the fall of 1817, and was “ employed and supported (by the society) as the children of other members were.” Her father was entitled to her services during minority, which he appropriated to the use and benefit of the society of which he was a member. Mrs. Gasely’s services, therefore, if beneficial, conferred no right upon her to claim compensation on attaining full age, and imposed upon the association no legal or equitable obligation to account with her therefor.

Nor does it appear from the pleadings that she had any separate property, which she then surrendered to the common fund, of which partition is now demanded; but her interest therein seems to have been entirely prospective, and acquired solely by force of the articles, and subject to the limitations therein expressed.

In looking to the articles, to ascertain the nature and extent of her interest, we find one of its fundamental features, borrowed, substantially, from those of 1819, was, that there should not thereafter be any individual ownership in the property and effects of the association in any of its members ; hut that the same, and all future acquisitions resulting from the labors and enterprise of any and all its. subscribers, should constitute a common fund, devoted exclusively to the use of the society, under the management and control of directors chosen by the members. The subscribers thereby solemnly renounced, for themselves and their heirs, all right of separate ownership in the joint property, present and prospective, and declared that it should be and remain the property of the association; agreeing to work for and faithfully serve the society, receiving only a support, in sickness and in health, from the joint property, and also stipulating, that upon voluntary retirement or expulsion, for just cause, their respective interests in and right to support from the joint estate, should cease and determine.

It also appears from the pleadings that said Anna Maria, some time in the year 1830, married her co-complainant, John Gasely, who was also a member of the society, and that both signed the articles of 1833, which contained the same general features as to the property and its ownership. That they both continued to live at Zoar, as members of the community, until 1845, long after the society was incorporated That John Gasely was expelled from the society “ for just and sufficient cause,” in 1845, and that thereupon Mrs. Gasely, choosing rather to follow her husband than to remain, voluntarily departed and remained away until after the commencement of this suit, notwithstanding the directors frequently notified her, that the society were still willing to receive and care for herself and her children, if they would but return.

It is manifest from this statement as to the origin of Mrs. Gasely’s interest in the Zoar property, the agreement upon which it is based and her subsequent withdrawal from the society, that if the articles of 1824 are to any extent binding upon the parties, she was not, nor are her heirs now, entitled to the relief claimed in the petición.

She had not any right to any part of the Zoar estate, outside or independent of the articles of 1824, and the right she asserts under and by virtue of those articles, ignores a fundamental feature of the association, which has been uniformly adhered to from its original insertion in the articles of 1819, to the present time.

In 1824, Mrs. Gasely being then of age, unmarried and competent to contract for a consideration sufficient in law— her support out of the common fund while a member of the society — agreed with the other subscribers to become a member, and' in common with them, to labor for the accumulation ■of a joint or common fund in which none of the subscribers were to have separate or transmissible interests, and that all her interest therein, was to cease upon her withdrawal, or just expulsion from the society.

Nothing could be more opposed to the terms and manifest intent of the articles than to hold, that any one of the subscribers upon affixing his signature thereto, acquired a proportionate share in the property then belonging to the society, which was subject to withdrawal by him from the common, fund on his voluntary retirement and transmissible upon his decease, to his heirs at law ; and yet the claim of the plaintiffs seems to go this length.

At the time Mrs. Gasely signed the articles, the society had been in successful operation for several years, during which period it had not only acquired an equitable interest in large and valuable tracts of land and a large personal estate, but had laid the foundations of its future prosperity broad and deep. These facts, deducihle from the pleadings, give peculiar significance to the provisions prohibiting individual ownership, and declaring the inviolability of the common property, and if the language were less clear than it is, we should be slow to give the articles a construction consistent with the claim of the plaintiffs. It would render the ligature so carefully prepared, a mere rope of sand, and confer upon incoming members, rights to which they are not equitably entitled as against the older members.

We must regard the withdrawal of Mrs. Gasely so far as her continuing rights to the common property are concerned, as voluntary on her part. The right of expulsion for good cause, is not only necessary for the preservation of harmony and good order, but is expressly reserved in the articles. It is conceded by the demurrer, that it was not exercised, in this instance, arbitrarily and without just and sufficient cause. Mrs. Gasely may have been, and doubtless was, placed in a trying position: but this should not deprive the society of the right of self-protection secured to it, and the most that can be said is, that it was her misfortune to be so connected by ties of affinity to one whom it became necessary for the society to expel. No improper influence seems to have been exercised by the directors. They left her free to choose for herself, and indeed, the answer avers a readiness still to receive her and her children, if they will but return and resume their duties to the society, it being willing to regard her case as an exception to the general rule.

It is said, however, that the articles, so far as they attempt to transfer the joint property from the individual members to the society, and create a common fund devoted exclusively to the uses of the association, to the exclusion of outgoing members, and the heirs of such as may have died, are in law invalid:

1st. Because there was no grantee capable in law of receiving and holding the property.

2d. Because the articles, if enforced, would create a perpetuity, which public policy forbids.

If these propositions were true, it is difficult to see how they could avail Mrs. Gasely or her heirs; especially, in regard to all that portion of the joint property, which hadheen acquired before the articles of 1824 were signed.

Mrs. Gasely acquired all the right which she or they now possess in that portion of the property, by virtue of the articles. It was a concession by the former owners to the incoming members upon certain terms, and only upon those terms.

If the grant is inoperative for want of a grantee capable of receiving and holding the property, or if the attempted transfer to the collective membership for the exclusive use of the society, is void as creating a perpetuity, the property necessarily reverts to its former owners and does not devolve upon the incoming members, in whom it was not previously vested, and who acquired no separate interest therein by the articles.

It is also difficult to perceive how Mrs. Gasely or her heirs are entitled to a divisible share in the subsequently acquired property, in professed requital for services rendered by her after becoming a member, and for which, as between herself and the remaining members, she has already received all that Tier contract entitled her to demand. The case here is not that of a futile effort to transfer property, resulting in a reverter of tbe property to its former owner; but a claim for further compensation for services rendered under an agreement,, where the pleadings admit that the compensation stipulated for, has leen fully paid and received.

The services of Mrs. Gasely undoubtedly contributed, in some degree, in aiding the agents of the society to acquire the property ; but the property itself never belonged to her in her own right, and the articles under which it was acquired, expressly preclude her from claiming any divisible interest in it. Those who remain may not perhaps be able to hold it; but the weakness of their title, surely can give hér no right to claim it in direct contravention of her express agreement.

Mrs. Gasely contracted for only a qualified interest in the property to be accumulated by their joint labors, and so long as she maintained her connection with the society, she, in common with her associates, had the use and benefit of all of it, and thereby received all the compensation she had stipulated to obtain.

The society still holds that property unimpaired and undisturbed, though Mrs. Gasely, by the very terms of her agreement, has no longer any right to its usufruct. Upon what principle, then, can she ask to disturb a possession and uproot a title which her own agreement contributed to create and establish, and as to which she had not any prior and paramount right ? Her labor contributed to its acquisition, it is true, and so did the labor of any outsider the compaiiy may have employed and paid his stipulated wages. Why should the rule hold good as to the one and fail as to the other ? Both are now strangers to the property and both have received the entire compensation agreed to be paid to them.

It is also said, in this connection, that the cession in the articles of individual interests to the collective membership is void under Sec. 1 of the “ act for prevention of frauds and perjuries,” which avoids all deeds of gift and conveyances of goods and chattels made in trust for the use of the person ox persons making the same, inasmuch as the use is in part fof the grantors them,selves.

But this statute, if applicable to the mere substitution of •an indivisible for a divisible use, of which grave doubts may well be entertained, would nqt avail the present plaintiffs, for the reasons already stated. The property then owned by the society and to which their ancestress had no previous title, could not revert to her, and a separate interest in the subsequent acquisitions was excluded by the very terms of her contract of service; and, secondly, the statute was enacted to prevent frauds upon creditors and purchasers, and is satisfied by protecting their rights and leaving the qualified use good as against the grantor, his heirs and representatives.

This aspect of the case is decisive of the rights of the plaintiffs and renders it unnecessary to determine the other questions urged upon our notice in regard to the character of the association of 1824 and its legal capacity to receive and hold a surrender by individual members of their separate interests in the joint effects, and the further and perhaps still graver question whether the perpetual devotion of the property and its proceeds to the uses of the society, qualified by the powers delegated to the directors and a majority of the members, creates such a perpetuity as avoids the surrender.

We regard it simply as a case in which the equity powers of the court are invoked to decree an account and partition in favor of those who do not show any present legal or equitable right to the property in which they claim to participate, and found their right principally, if not altogether, upon the legal incapacity of the present possessors to hold it.

It is proper for us to remark that the validity of the articles of 1824 in the very respects in which they are now assailed has been twice determined in the courts of the United States in the case of Goesele et al. v. Bimeler et al.; first in the circuit court (5 McLean 223), and afterward, on appeal, in the supreme court (14 How. 589), and in both courts their validity in these respects was distinctly affirmed and the right of individual" members -and their representatives to partition denied in a case in some respects much stronger than the one-under consideration.

Goesele was one of the original members and had contributed to some extent' to the general fund out of his private means. He had also labored to improve portions of the estate before the plan of a community of property had been adopted and while the original understanding that each member was to have as much land as he could pay for prevailed. He signed the articles of 1819 and those of 1824 and died in full membership in 1827, before the company was incorporated. Upon his decease his heirs at law sought in that action. to obtain partition, and their right to it depended, of course, upon the invalidity of the articles of 1824, as in that event he had a pre-existing interest in the property.

The cause seems to have been closely contested in both the circuit and supreme courts, and a unanimous decision affirming the validity of these articles was pronounced.

"We have not deemed it necessary, in disposing of the case before us, to determine the validity of the articles'of 1824; but inasmuch as the decision in the “ Goesele case” has been severely and somewhat rudely criticised by the counsel for-the plaintiffs, we take this occasion to remark that, after an examination of the opinion, we are not prepared to say that the decision was incorrect, and it is certainly sustained by several decisions closely resembling it. Schriber v. Rapp, 5 Watts, 351; Baker et al. v. Nachtrieb, 19 How. 126; Waite v. Merrill et al., 4 Greenleaf Rep. 102; Gass & Bonta v. Wilhite et al., 2 Dana 170.

We have followed the lead of counsel in disposing of this case upon the articles of 1824, but we do not wish to be understood that the articles of 1833, signed b.y Mrs. Gasely during coverture, with the assent of her husband, and the acceptance by them of the act of incorporation, coupled with twelve years’ acquiescence and affirmative action under it, are to be entirely disregarded as a defense to an action asking, equitable relief; but the question is intentionally left open, and undetermined, to be considered hereafter should a case requiring its application arise.

Demurrer to answer overruled, and cause remanded to district court for further proceedings.

Sutliee’, C.J., and BeiNKerhoee and Scott, JJ., concurred. GholsoN, J., did not sit in the case