Proof of special trust — Resulting trust — Pleading — Roman Catholic church Jurisdiction.
It appears, from the facts reported in the case, that the society or congregation usually worshipping in the Catholic church in Portsmouth numbers from 1,500 to 2,000, of whom the seventeen plaintiffs appear to be the only persons dissatisfied with the management of the property. They do not complain of the dedication of this church property to the pious uses of the catholic religion, but appear to claim that the society ought not to be excluded from the management and control of the property.
It is somewhat difficult to ascertain from the bill and the case on exactly what ground the plaintiffs desire to stand. Conceding, as they do, that this property has been given by themselves and by others to somebody for some purposes, they of course have no private rights of property. They do not profess to sue as well for the other members of the society as for themselves, so that they do not appear to represent, or claim to represent, the society collectively.
If I understand the views of the plaintiffs' counsel, they are these: They say that this property was given to McCallion, in the first instance, under such circumstances that a trust resulted to the society or congregation of Catholics in and around Portsmouth, and that, by our law, — Gen. Stats., ch. 139, sec. 5, — this fund or property having been given to that society, the society is, by virtue of the statute, endowed with corporate powers, for the purpose of protecting and managing the fund and property. I say resulting trust, because it is found by the court that the legal title to this property is vested in the bishop, but that no trust was declared in any of the conveyances of the property. No question appears to have been made in regard to the legal effect of the conveyance to McCallion, the mortgage by him, the levy on the equity of redemption for McCallion's debt by Owen Martin, the purchase of that equity by Bishop Fitzpatrick, and the purchase of the mortgage by the defendant Bacon. It is found, among the facts by
the court, that the legal title was in the bishop, now deceased, and that in the conveyances by which he obtained the title there was no declaration of trust. This is a statement of the general rule of the Catholic church, and also intended to apply to this particular case. In fact, it appears that no other result could be produced by the conveyances found in the case. I understand, therefore, the position of the plaintiffs to be, that, the legal title being first in McCallion and then in the bishop, the real ownership of the property was in the society.
Section 5, chapter 139, General Statutes, is as follows: "If any donation, gift, or grant be made to any unincorporated religious society, such society shall have the like power to manage, use, and employ the same according to the terms and conditions on which the same may be made, as incorporated societies may have by law; to elect suitable trustees, agents, or officers therefor, and to prosecute and sue for any right which may vest in them in consequence of such donation, gift, or grant; and such society shall be a corporation, so far as may be necessary for the purposes expressed in this section; but the income of the donations, gifts, or grants, to any such unincorporated religious society, shall not exceed the sum of $5,000 a year."
Under this statute, it is claimed that the society or congregation of Catholics is, for the purpose of managing this fund, a corporation, and entitled, by its duly authorized agents and committees, to sue and maintain actions, and liable to be sued. But the plaintiffs have not made this society a party, neither do they show any authority possessed by them to act for it.
It is true, that there are cases in which some of the members of the corporation may, on their own behalf and that of the other members, maintain a bill in their private capacity, where the corporation and its officers are negligently or fraudulently permitting its interests to be sacrificed.
Pearson v. Tower, ante 215, and Winsor v. Bailey, ante 218, were both cases in which a part of the stockholders suing the corporation and directors were obliged to amend, to the effect that they were suing as well for all the other stockholders as for themselves, and in each of those cases the corporation itself was made a party — March v. Eastern R. R. Co.,40 N.H. 548; and I think it would be so in this case. These plaintiffs, not being authorized by the corporation to assert and protect its rights, must make the quasi corporation a party, and must show in their bill some neglect or fraudulent collusion on the part of the quasi corporation, in order to entitle them to interfere and draw the affairs and property of the quasi corporation into litigation.* The bill is therefore on this theory bad, and cannot be maintained, for both these reasons.
The answers state that "By the law, usage, and polity of the Roman Catholic church, the title to all lands used for religious purposes, churches, and so forth, is vested in the bishop of the diocese in which
the same are situated, for the use and benefit of the universal Catholic church; and all gifts and contributions for such purposes are understood to be made under that rule."
The case finds that "By the usages of the Roman Catholic church in New England, all church structures are held in the name of the bishop for the use of the congregations who respectively attend public worship therein. The legal title is vested in the bishop. No trust was expressed in any of the conveyances above referred to, but the money was furnished by the people, not by the bishop. The bishop appoints the priests to the several parishes in the diocese, and removes them at his pleasure. Any misconduct of the priest is corrected by complaint to the bishop, who is himself answerable to his ecclesiastical superiors."
It is true that the court has found that although the legal title to this church and church property was in the bishop, yet the money was furnished by the people. There is an ambiguity in the word "people," which might mean the whole society or congregation collectively, or it might mean the gifts of individuals, members of the society. The bill and answer and report, taken together, show that the funds were the gifts and subscriptions and contributions of individuals, and not always of Roman Catholics. If any trust then resulted, it would be to the individuals who contributed the fund, and not to the society. Lord HARDWICKE, as cited by Kent, 4 Com. 306, said that a resulting trust, arising by operation of law, existed (1) when the estate was purchased in the name of one person, and the consideration came from another; (2) when a trust was declared only as to part, and nothing was said as to the residue: that residue remaining undisposed of, remained to the heir at law. He observed that he did not know of any other instances of a resulting trust, unless in cases of fraud.
Now it is not claimed in this case that there has been any fraud. The property was conveyed to McCallion just exactly as those who gave the money intended it to be. There is no claim or pretence that the funds which have been contributed have not been fairly and honestly laid out, in repairing, enlarging, and insuring the original church, and in rebuilding the new one; and it is not denied that a regular Catholic service has been secured to the society.
In the absence, then, of all pretence of fraud, the only trusts which could result would be those described above by Lord HARDWICKE.
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Proof of special trust — Resulting trust — Pleading — Roman Catholic church Jurisdiction.
It appears, from the facts reported in the case, that the society or congregation usually worshipping in the Catholic church in Portsmouth numbers from 1,500 to 2,000, of whom the seventeen plaintiffs appear to be the only persons dissatisfied with the management of the property. They do not complain of the dedication of this church property to the pious uses of the catholic religion, but appear to claim that the society ought not to be excluded from the management and control of the property.
It is somewhat difficult to ascertain from the bill and the case on exactly what ground the plaintiffs desire to stand. Conceding, as they do, that this property has been given by themselves and by others to somebody for some purposes, they of course have no private rights of property. They do not profess to sue as well for the other members of the society as for themselves, so that they do not appear to represent, or claim to represent, the society collectively.
If I understand the views of the plaintiffs' counsel, they are these: They say that this property was given to McCallion, in the first instance, under such circumstances that a trust resulted to the society or congregation of Catholics in and around Portsmouth, and that, by our law, — Gen. Stats., ch. 139, sec. 5, — this fund or property having been given to that society, the society is, by virtue of the statute, endowed with corporate powers, for the purpose of protecting and managing the fund and property. I say resulting trust, because it is found by the court that the legal title to this property is vested in the bishop, but that no trust was declared in any of the conveyances of the property. No question appears to have been made in regard to the legal effect of the conveyance to McCallion, the mortgage by him, the levy on the equity of redemption for McCallion's debt by Owen Martin, the purchase of that equity by Bishop Fitzpatrick, and the purchase of the mortgage by the defendant Bacon. It is found, among the facts by
the court, that the legal title was in the bishop, now deceased, and that in the conveyances by which he obtained the title there was no declaration of trust. This is a statement of the general rule of the Catholic church, and also intended to apply to this particular case. In fact, it appears that no other result could be produced by the conveyances found in the case. I understand, therefore, the position of the plaintiffs to be, that, the legal title being first in McCallion and then in the bishop, the real ownership of the property was in the society.
Section 5, chapter 139, General Statutes, is as follows: "If any donation, gift, or grant be made to any unincorporated religious society, such society shall have the like power to manage, use, and employ the same according to the terms and conditions on which the same may be made, as incorporated societies may have by law; to elect suitable trustees, agents, or officers therefor, and to prosecute and sue for any right which may vest in them in consequence of such donation, gift, or grant; and such society shall be a corporation, so far as may be necessary for the purposes expressed in this section; but the income of the donations, gifts, or grants, to any such unincorporated religious society, shall not exceed the sum of $5,000 a year."
Under this statute, it is claimed that the society or congregation of Catholics is, for the purpose of managing this fund, a corporation, and entitled, by its duly authorized agents and committees, to sue and maintain actions, and liable to be sued. But the plaintiffs have not made this society a party, neither do they show any authority possessed by them to act for it.
It is true, that there are cases in which some of the members of the corporation may, on their own behalf and that of the other members, maintain a bill in their private capacity, where the corporation and its officers are negligently or fraudulently permitting its interests to be sacrificed.
Pearson v. Tower, ante 215, and Winsor v. Bailey, ante 218, were both cases in which a part of the stockholders suing the corporation and directors were obliged to amend, to the effect that they were suing as well for all the other stockholders as for themselves, and in each of those cases the corporation itself was made a party — March v. Eastern R. R. Co.,40 N.H. 548; and I think it would be so in this case. These plaintiffs, not being authorized by the corporation to assert and protect its rights, must make the quasi corporation a party, and must show in their bill some neglect or fraudulent collusion on the part of the quasi corporation, in order to entitle them to interfere and draw the affairs and property of the quasi corporation into litigation.* The bill is therefore on this theory bad, and cannot be maintained, for both these reasons.
The answers state that "By the law, usage, and polity of the Roman Catholic church, the title to all lands used for religious purposes, churches, and so forth, is vested in the bishop of the diocese in which
the same are situated, for the use and benefit of the universal Catholic church; and all gifts and contributions for such purposes are understood to be made under that rule."
The case finds that "By the usages of the Roman Catholic church in New England, all church structures are held in the name of the bishop for the use of the congregations who respectively attend public worship therein. The legal title is vested in the bishop. No trust was expressed in any of the conveyances above referred to, but the money was furnished by the people, not by the bishop. The bishop appoints the priests to the several parishes in the diocese, and removes them at his pleasure. Any misconduct of the priest is corrected by complaint to the bishop, who is himself answerable to his ecclesiastical superiors."
It is true that the court has found that although the legal title to this church and church property was in the bishop, yet the money was furnished by the people. There is an ambiguity in the word "people," which might mean the whole society or congregation collectively, or it might mean the gifts of individuals, members of the society. The bill and answer and report, taken together, show that the funds were the gifts and subscriptions and contributions of individuals, and not always of Roman Catholics. If any trust then resulted, it would be to the individuals who contributed the fund, and not to the society. Lord HARDWICKE, as cited by Kent, 4 Com. 306, said that a resulting trust, arising by operation of law, existed (1) when the estate was purchased in the name of one person, and the consideration came from another; (2) when a trust was declared only as to part, and nothing was said as to the residue: that residue remaining undisposed of, remained to the heir at law. He observed that he did not know of any other instances of a resulting trust, unless in cases of fraud.
Now it is not claimed in this case that there has been any fraud. The property was conveyed to McCallion just exactly as those who gave the money intended it to be. There is no claim or pretence that the funds which have been contributed have not been fairly and honestly laid out, in repairing, enlarging, and insuring the original church, and in rebuilding the new one; and it is not denied that a regular Catholic service has been secured to the society.
In the absence, then, of all pretence of fraud, the only trusts which could result would be those described above by Lord HARDWICKE. There being no declaration of trust for any part of the estate, it could not be the last of those mentioned, and it must therefore be the first, so that the effect would be that this property would be owned by the individuals who had contributed to the fund without any special trust at all, which is the exact contrary to the trust claimed in the bill.
The court, however, finds that the legal title to the property is vested in the bishop, and that by none of the conveyances have any trusts in writing been declared. It is very well settled, — Hall v. Congdon, ante 104, — that under such circumstances no parol evidence could be given to prove any special trust;, so that, independently of the statements in
the answers, the property is vested in the bishop, free from all trusts whatever. It may have been prudent and wise, or it may not have been prudent and wise, in those who gave this money, to entrust it so absolutely to the bishop, without exacting from him a written declaration of the trusts on which he was to hold it. They certainly had right to do so, and they certainly have done so.
The answers, however, show that this property is vested in the bishop for the use of the universal Catholic church; that the defendant Walsh, and the other priests who, under the bishop's direction, have controlled and managed this property, are responsible to the bishop only, and the bishop is responsible to his ecclesiastical superiors. No special trust having been declared in writing, and none being capable of being proved by parol, it is a matter between the bishop and his own conscience whether he will appropriate this property, thus vested absolutely in him for the benefit of the Catholic church, according to its rules and regulations, or otherwise. So long as he does not use the property so as to injure others or violate the laws, it is not easy to see how he is amenable to the laws.
It is clear that this court cannot, in this suit, take this property from the hands of the bishop, and place it in the hands of a new trustee.
And so far as the bill claims an accounting from the defendants Walsh and Bacon, it clearly must fail. The money which has been expended on this church property has been given absolutely to the bishop, to be used by him and under his direction, without accounting to anybody but his ecclesiastical superiors.
So, in regard to the complaint that the defendant Walsh has wrongfully excluded the plaintiffs from some of the religious services in the church, the court has not found that it is contrary to the usages and rule of the Catholic church to exact from those who are able to pay contributions, according to their means, for the support of the institutions of religion according to the Catholic faith. The case, therefore, does not call for an expression of the views of the court on this point; but I am very strongly of the opinion that this is entirely a matter of ecclesiastical jurisdiction, with which this court has nothing to do.
The bill also contains formidable charges of indecent and abusive speech on the part of the defendant Walsh, in regard to some or all of these plaintiffs.
It is enough, perhaps, to say here, that the court has not found the fact to be so. I do not understand that the bill charges any expressions of a slanderous or defamatory character. The language stated in the bill consists rather of imprecations and communications, doubtless calculated, if it had been used, to wound deeply the sensibilities of the persons against whom it is alleged to have been directed. It does not appear to me that such matters are within the civil jurisdiction of the courts. They are, rather, matters of ecclesiastical cognizance. It is quite likely that in many religious denominations, Protestant as well as others, there may be exercised a good deal of spiritual tyranny; and there may be, and probably are, many persons who, from the effect, perhaps, of
early education and associations, and the natural constitution of their mental character, are unable to resist such influences. Civil courts can protect their rights of person and property, but cannot liberate their souls. The court, however, has entirely negatived all conduct of this kind complained of in the bill.
It will be observed, that the whole question in this case is as to the conflicting claims and rights of these plaintiffs on the one hand, and of the society or congregation of Catholics in Portsmouth and their ecclesiastical directors and guides on the other. Both parties claim under the same title; and that is the legal title once vested in the defendant Bacon, and now, we must suppose, in his successor. It is true, the counsel for the plaintiffs claims that the mortgage from McCallion to his vendor was void, as not having been sanctioned by the society; but most assuredly, putting it in the strongest way for the plaintiffs, the society could not be made a quasi corporation until the gift which was to make them so had been completed, and the transaction, of the deed to McCallion and the mortgage back, must be considered as one.
As between these plaintiffs, then, on the one hand, and the defendants on the other, who I think must be considered as really representing the society, it appears to me that the right is with the defendants and that the bill must be dismissed.
LADD, J., concurred.
* But see Marston v. Durgin, 54 N.H. 374. REPORTER.