Reed v. Stouffer

56 Md. 236, 1881 Md. LEXIS 94

Opinion

Grason, J.,

delivered the opinion of the Court.

It appears from the record of this case, that in the year 1787, John Eager Howard, in consideration of £100 specie, executed a deed of conveyance of a lot, at the corner of Lombard and Paca streets, in Baltimore City, to Abram Sitler and others, and their successors, as “trustees for the Society of German Baptists, commonly called Dunkers, to and for the use and behoof of the said German Baptist Society forever.” On the 17th day of November, 1808, John Eager Howard executed another deed of the same lot to trustees, some of whom are named as trustees in the deed of 1787, and others are different per sons. The last deed recites parts of the first deed, and states that it vested only a life estate in the trustees, by reason of the omission of legal words of perpetuity, whereas, it was the intention of said Howard, that the said lot of ground should at all times thereafter be used as a burial ground or place of deposit for the remains of the members of the Society of German Baptists, commonly called “Dunkers,” and such other persons, asa majority of the trustees, residing in Baltimore City or precincts, might think proper, and give permission to be buried therein; and that any house erected, or to be erected thereon, should and might, at all times, be used as a place of public or private worship for the said Society, or such other persons, as a majority of the trustees aforesaid, residing in the city and precincts of Baltimore, should think proper; and in pursuance of such intention, and to give full effect to the original grant, he conveys, for the consideration named in the first deed, the lot to the trustees, named in the second deed, their heirs and assigns, to have and to hold, &c., to them and the male heirs of their bodies, severally and lawfully begotten, and to their proper use as tenants in common, and, in the event of no male heirs, to their heirs generally, forever. “In trust, nevertheless, and to and for the uses, intents and purposes hereinbefore mentioned, and to and for no other use, intent dr purpose whatever.” In 1849, John Stouffer, said to be the only surviving trustee, and some of the heirs-at-law of the deceased trustees, named in the deed of 1808, executed a deed of license to the “Trustees of the Disciples of Jesus Christ, in the city and precincts of Baltimore,” to erect a house of public worship, on a part of said lot. The house was built, and a dispute arose between the two religious societies as to the exclusive right to worship therein, and a suit was instituted and was brought to this Court, in which it was decided that the license was valid and binding upon the parties; that the deed of Howard, executed in 1787, was in direct violation of the 34th Article of the Declaration of Rights, and therefore void, and that his deed of 1808, was the first valid and effective grant. Grove vs. Trustees, &c., 33 Md., 451. On the ninth day of November, 1874, a certificate of incorporation, alleged to be of the Society of Baptists referred to and described in the deed of 1808, was acknowledged and recorded under the general incorporation Act of 1868, ch. 471, and on the third day of December, 1874, the “ Trustees of the Church of the German Baptist Brethren” thus incorporated,filed a bill in the Circuit Court of Baltimore City, alleging that they were the cestuis que trust, for whom the lot was purchased and held in trust, and that, having become incorporated, they were entitled under the Act of 1868, ch. 471, to have a conveyance of the legal title of the lot, for which the bill prays, and for general relief.

Answers were filed by some of the heirs of the trustees named in the deed of 1808, in which it is denied that the complainants were beneficiaries under that deed, or in any manner entitled to the lot thereby conveyed. In January, 1875, Charles E. and George T. Stouffer, heirs of trustees under that deed, filed their bill in the same Court, in which they allege that in consequence of the growth of the city, the lot has become unsuitable for burial purposes, and that it is necessary and would be for the interest and advantage of all 'the parties interested therein, that said burial ground should be sold, and the proceeds distributed amongst them, the remains therein interred, being first carefully removed. The Trustees of the Church of the German Baptist Brethren answered, insisting on their right to have a'conveyance of the lot, and denying that the complainants, the heirs of the original trustees, had any beneficial interest in the lot, or any right to have it sold, or to receive the proceeds thereof; but the answer does not notice, in any manner, the allegation in the bill, that the lot was no longer suitable for a burial place. Answers were also filed by some of the heirs, of the original trus-’ tees under the deed, and by lot-holders assenting to a sale of the lot and distribution óf the proceeds of sale. An interlocutory decree was passed against those who had not answered, and afterwards evidence was taken as to the identity of the Society o'f German Baptist Brethren, with the Society of German Baptists, called “Dunkers,” and its acts of ownership and user of the lot, and its being no longer suitable as a burial place. The two cases were consolidated, and, on the 23rd day of October, lSTT, an agreement of the parties was filed, consenting to a sale of the lot,'and that the proceeds should he brought into Court, and held subject to the further order of the Court, the right being reserved to the parties to share in the distribution of the fund, and all their rights against the same, as they had against the land itself; and a decree was passed accordingly. Some time afterwards, this decrtee was rescinded by agreement of the parties to the cause, and an amended bill was filed, alleging that the trustees were notified by the heirs of John Eager Howard, that, in case the property should be diverted from its use as a burial ground, by a sale thereof, they would claim the same, and further alleging that the heirs of Howard have no interest in the property, but that by the true interpretation of the deed of 1808, the title of the grantees was not made to depend on the continued ' user of said property as a burial ground, but, as the claim of said heirs has thrown a cloud on the title, which would seriously affect its sale, they ask that they he brought in as defendants, and be enjoined from setting up any claim or title to the property; and be declared to have- no right, title, interest or estate therein. The Trustees of the Church of the German Baptist Brethren answered the amended bill, in which they also deny that the heirs of John Eager Howard have any interest in the property, or any right to object to or call in question their rights as asserted in their original bill or theil answer to the bill filed by the Stouffers. The heirs of Howard answered, setting forth their views of the proper construction of the deed of 1808, and the uses to which the property conveyed thereby was to be applied, and the interest which the complainants took therein. The cause was argued, and the Circuit Court decided that the decree for a sale of the property had been rightfully passed, and that a purchaser under that decree would take a valid title. Another decree, was passed for a sale, reserving the question of the distribution of the proceeds of sale for the future orders of the Court; and from this decree the heirs of John Eager Howard have taken this appeal, and the main question presented is, whether the property can be sold, or whether it must continue to be held as a place of burial of deceased members of the Society of Herman Baptists, and of such others as a majority .of the trustees of that denomination of Christians, being and residing in Baltimore City or precincts, may think proper and give permission to he buried there P

It has been contended by the appellees’ counsel, that' the decree for the sale was rightfully passed by virtue of the Act of 1868, ch. 2.11. That Act provides that after notice is given as directed by it, and evidence taken, the Court may decree a sale upon being satisfied by the evidence that it is necessary, and would- be to the interest and advantage of the parties interested, that the ground should be sold, and shall distribute the .proceeds of sale among the parties interested, according to their several interests, as the same shall be shown to the Court, and that a sale under such decree shall pass the title to the purchaser thereof, free and discharged of, and from the corporation or trustees who may hold the same, their successor and assigns, and of all persons in interest as lot-holders in such ground, whether they are entitled as'original lot-holders, and whether they are residents or non residents, adults or infants. Béfore a decree for a sale can be passed under this Act, tbe proof must be sufficient to satisfy the Court that such sale is necessary, as well as for the interest and advantage of the parties interested in the place of burial. Only two witnesses were examined as to this point, Samuel Beavan and Edward D. Pollitt, who both testified, that in their judgment, it would be for the interest and advantage of the parties interested, that the lot should be sold. Neither of them however testified that it was necessary to have it sold, nor was either of them asked any question with respect to the necessity for its being sold. Mr'. Beavan owned property on the opposite corner, and Mr. Pollitt lived opposite, and it very dearly appears from their evidence, that they are both much opposed to having any grave-yard within the city limits, because in their opinion, they stand in the way of business improvements, and they think that that portion of the city, in which the grave-yard is located, would be much benefited by its removal; and Pollitt seems anxious to have it removed, because his chamber window looks directly into it, and he says it is very unpleasant to look into a grave-yard. The proof also shows that this lot has a wall around it, and is kept in a snug and clean condition, and that in the last twenty-five years there have been but four persons buried there, and not more than fifty or sixty since it was deeded by General Howard for that purpose. We are clearly of opinion that the proof does not come up to the requirements of the Act of 1868, so as to justify a decree for a sale of the lot under its provisions. We can find nothing in the proof to show that the lot in question is not a suitable place for the burial of the dead. Not many have been interred in it, owing, we infer, not to the fact that the lot is unsuited for the burial of the dead, buA solely to the fact of the paucity of members of the society for whose use the lot was conveyed by General Howard. There is still ample room for the burial of such of the German Baptists, called Dunkers, as may die, and likely to he for a long time to come. The lot is enclosed within walls, and is proved to he kept in proper condition, and no cause is shown why it is not a suitable place for burial of the dead, except what is assigned by two witnesses, both of whom live in its immediate vicinity, one of whom thinks it stands in the way of the improvement of his own property, and the other .of whom wishes it removed, because a sight of it from his chamber window produces disagreeable feelings. Such facts do not constitute such unsuitableness for a place of burial, and such necessity for its removal as are contemplated by the law, and are not sufficient to warrant a sale of it, even for the purpose of investing the proceeds of the sale in other ground, to be held and used as a burial ground. But in no event have the trustees, named in the deed of 1808, their heirs and assigns, or the “Trustees of the Church of the German Baptist Brethren,” or their successors, any right to have the lot in question sold, and the proceeds of such sale distributed among themselves, or their cestuis que trust. The deed of 1808 in express terms declares the intention of the grantor, in creating the estate, to part with the use of the property conveyed, for the particular purposes set forth. in the deed, and for no other purpose, and the grantees by their acceptance of that deed, are bound by that intention. The intention of the parties to a deed is to be carried into effect and accomplished, unless other expressions in the deed positively forbid it. Peyton vs. Ayres, 2 Mel. Ch. Dec., 64 ; or unless that intention violates some established principle of law. Hope, Adm’r of Hope vs. Hutchins, 9 G. & J., 78. By the express terms of the deed, it was the intention of the parties to it, to dedicate the lot conveyed to the uses therein specially declared; and neither they, their heirs, the cestuis que trust, nor the lot-holders, have any right to divert it from those uses. The fact that a valuable consideration was paid for the grant can make no difference. The estate conveyed and granted in express and exclusive terms, cannot be enlarged hy the amount of the consideration paid. Where uses are declared, they are to he held as correspondent to the consideration. Fonblanque’s Equity, Booh 11, sec. i, notara, and the authorities there cited. And it certainly cannot he inferred from the amount of the consideration paid, that the grantor intended to convey an estate, which the grantees were expressly prohibited hy the 34th Article of the Declaration of Rights from taking ; that Article declaring void all gifts and conveyances of land to religious societies, except not exceeding two acres on which to erect a building for divine worship, or to he used as a place of burial for the dead. It is manifest that neither the original trustees named in the deed of 1808, nor their heirs, nor the lot-holders have any right to have the lot sold, and the proceeds of the sale distributed among them or any of them. It must he held and used in strict conformity to the terms of the deed by which it was conveyed, and for the uses therein specially declared. Should it he diverted from those uses, the terms of the deed, under which alone it is now held, would he violated, and the heirs of General Howard would immediately become re-invested with the title to the lot.

The only remaining question to he disposed of, is whether “ The Trustees of the Church of the German Baptist Brethren,” have a right to a conveyance of the lot in question from the heirs of the trustees, to whom it was conveyed hy the deed of 1808! Their bill was filed for the purpose of compelling such conveyance. Article 40, sec. 168, of the Revised Code enacts, that “the person or persons holding lands or goods and chattels in trust for any particular church or society, shall convey the same to the corporation of such particular church or society, as soon as the same shall he formed under this Article.” The proof shows that the “ Trustees of the Church of the German Baptist Brethren,” is composed of German Baptists, commonly called “ Dunkers,” and that they are the same parties for whose use the lot was conveyed to trustees hy the deed of 1808. The proof further shows that they acknowledged a certificate of incorporation, hy the name of the te Trustees of the Church of the German Baptist Brethren,” before a Judge of the Circuit Court for Carroll County, on the ninth day of November, 1874, and that it was duly recorded in the office of the clerk of said Court. In effecting this incorporation, the requirements of the Revised Code, Article 40, secs. 157 to 168 inclusive, seem to have been substantially complied with, and the society has therefore been duly and legally incorporated. The corporation is therefore entitled to a conve37'ance of the lot in question, to he held by it, however, subject to the uses declared by the deed of 1808. We will therefore pass a decree, reversing the decree appealed from, and remanding the cause in order that a decree may he passed by the Court below, in conformity to the views expressed in this opinion.

(Decided 6th May, 1881.)

Decree reversed, and cause remanded.