The Chancellor.
By a charter from Queen Anne, dated January 25, 1709, reciting, that, “the Rev. Mr. John Talbot, minister of the Church of St. Mary’s, in our town of Burlington, Daniel Coxe, (and others, naming them,) have, by their petition, desired that they might have our Royal grant and charter enabling them to act as a body corporate by the name of the Minister, Church Wardens and Vestrymen of St. Mary, in Burlington,” the said Queen willed, ordained, fye., “ that the Reverend Mr. John Talbot, the minister of our town of Burlington for the time being, Robert Wheeler and George Willis, Church Wardens of our said Church, and the two Church War[528]*528dens-for the time being, Col. Daniel Coxe,(and others, naming them,) and their successors to he elected ip manner as is .hereafter directed, be,and forever -hereafter shall be, one body politic and corporate, in-deed.and in name, -by tbe name of the Minister, Church Wardens and Vestrymen of the Church of Saint Mary, in Burlington, and .them and their successors,-by the same .name,,' TO do by these presents, for us, our heirs, and successors, make, ordain, &c., one body politic and corporate, to :have community and.succession -perpetual, -and that they, and-their successors, by that name shall .and may forever hereafter, be capable to purchase,, have, -take, -receive and enjoy, to them .and their successors, messuages, lands, in fee and perpetuity, (&c.,) for thebettensupporf .and maintenance of an -Orthodox minister in the-said Church, and the promotion of piety and -religion, and likewise the maintaining and keeping in repair the. fabric of the said Church, ‘and providing decent -.ornaments for the same, as also full power to give, grant, bargain, sell and dispose of any of the-said lands, either for term of years or in fee: Provided always that such and so many lands of the full value of such as are Sold he bona fide purchased and settled for the uses aforesaid and giving to the .said persons, and their successors forever, the' right, on notice, to .elect .and choose, by majority of voices, two Church Wardens, and ap many Vestrymen as shall be wanting to complete the number of twelve Vestrymen, besides tbe two Church Wardens.
On tbe 29th October,. 1712, John Tatham, of New York, and Mary bis wife, by'ian Indenture between them, .of the one .part, apd His Excellency Robert Hunter., Escp, Captain General .and Governor in Chief of the Provinces of New York and New Jersey, and one of .the members .of the Right Honourable the Society for the Propagation of the Gosp.el in foreign parts, of the other part, conveyed to .tbe said Robert Hunter, his heirs and assigns forever, .certain lands .at Burlington upon Delaware River, (describing them.) To Have and to Hold unto the said Robert Hunter, his heirs and assigns forever, to and for the Sole and only -proper use, benefit .and .behalf of tbe Right Honourable tbe Society for tbe Propagation of the Gospel in foreign [529]*529parts, and of their successors and assigns forever, and to no other use or uses whatsoever.
On the 13th April, 1803, by an Indenture between the said li the Society for the Propagation of the Gospel in foreign parts,” of the one part, and the Minister, Church Wardens and Vestrymen of Saint Mary’s Church, in the city of Burlington, in the State of New Jersey, of the other part, reciting, that the said lands were originally designed by the said Society for .the support and maintenance of the Episcopal Church in the said city of Burlington, but, since the separation of the Colonies from &c., have for the most part laid open, and unproductive, either to the said Society or to the said Episcopal Church; and that the Minister, Church Wardens and Vestrymen of the said Church have earnestly requested of the said Society to grant and convey the said lands to and for the use and maintenance of the said Episcopal Church in the city of Burlington, did, “ according to their estate and interest in the premises, and so far as they lawfully can or may, but not further or otherwise,” convey the said lands to the said Minister, Church Wardens and Vestrymen, and their successors and assigns. To Have and to Hold unto them, their successors and assigns forever, for the use and maintenance of the Episcopal Church, in the city of Burlington aforesaid, and .to and for no other use or uses whatsoever.
On the 15th September, 1847, an instrument of writing, under seal, purporting to be an agreement between “ the Minister, Church Wardens and Vestrymen of St. Mary’s Church, of the city of Burlington, in the State of New Jersey, of the first part, and Samuel Wesley Stockton, of the seeond part, was executed, by which the said party of the first .part agreed to convey to the said Stockton, his heirs and assigns, certain .parts of the said lands, (describing the parts,) and then follows this clause in the agreement, “ which comprises all the rihgt, title and interest of the said party of the first part in and to the ground within the above boundaries, excepting, nevertheless, to the owners of lots conveyed by the said party of the first part to Benjamin Shepherd and others the free use and privilege of a 15 feet alley way, running, áre.the aforesaid premises to be free and clear [530]*530of all incumbrance; and the said Stockton agreed, that, on tbe execution of tbe deed as aforesaid, he would pay, &c.; and, for the performance of the said covenants and agreements, each party was, by the said instrument, bound to the other in the <sum of $5,000; which sum it was thereby agreed should be the •■stipulated damages to be paid by the party delinquent to the other performing his or their part of the agreement; the said sum being hereby agreed, fixed upon and stipulated as a liquidated satisfaction to be made and paid, in case of the breach of the said agreement by either party, to the other performing. The agreement fixed a time and place for the delivery of the deed.
The. manner in which this agreement was signed, and the nature and contents of the deed which was prepared as a fulfilment of the agreement on the part of the party thereto of the first part, and the manner in which the said deed was executed and acknowledged, will be found in the statement of the case given by the Reporter.
Stockton did not attend at the time and place fixed for the delivery of the deed. The bill is exhibited to compel a specific performance by him of the said agreement.
The defence set up by the answer is, that the complainants are not able to make a good title. And the principal point discussed on the argument of the case was, whether the complainants could make a good title.
The first ground taken by the Counsel of the defendant is, that the deed of April 13, 1803, from ££ The Society for the propagation of the Gospel in foreign parts,” to “ The Minister, Church Wardens and Vestrymen of Saint'Mary’s Church, in the city of Burlington,” gives the land, not to the use of the said Minister, &c., of St. Mary’s Church only, and, therefore, that the said Minister, &c., of St. Mary’s Church are not, as contended by the Counsel of the complainant, both trustee and sole cestui que trust; but gives the land to the said Minister, &c., of St. Mary’s Church, their successors and assigns forever, for the use and maintenance of the Episcopal Church in the city of Burlington, including, not merely the parish of St. Mary, [531]*531or the said Minister, &e., of St.
Free access — add to your briefcase to read the full text and ask questions with AI
The Chancellor.
By a charter from Queen Anne, dated January 25, 1709, reciting, that, “the Rev. Mr. John Talbot, minister of the Church of St. Mary’s, in our town of Burlington, Daniel Coxe, (and others, naming them,) have, by their petition, desired that they might have our Royal grant and charter enabling them to act as a body corporate by the name of the Minister, Church Wardens and Vestrymen of St. Mary, in Burlington,” the said Queen willed, ordained, fye., “ that the Reverend Mr. John Talbot, the minister of our town of Burlington for the time being, Robert Wheeler and George Willis, Church Wardens of our said Church, and the two Church War[528]*528dens-for the time being, Col. Daniel Coxe,(and others, naming them,) and their successors to he elected ip manner as is .hereafter directed, be,and forever -hereafter shall be, one body politic and corporate, in-deed.and in name, -by tbe name of the Minister, Church Wardens and Vestrymen of the Church of Saint Mary, in Burlington, and .them and their successors,-by the same .name,,' TO do by these presents, for us, our heirs, and successors, make, ordain, &c., one body politic and corporate, to :have community and.succession -perpetual, -and that they, and-their successors, by that name shall .and may forever hereafter, be capable to purchase,, have, -take, -receive and enjoy, to them .and their successors, messuages, lands, in fee and perpetuity, (&c.,) for thebettensupporf .and maintenance of an -Orthodox minister in the-said Church, and the promotion of piety and -religion, and likewise the maintaining and keeping in repair the. fabric of the said Church, ‘and providing decent -.ornaments for the same, as also full power to give, grant, bargain, sell and dispose of any of the-said lands, either for term of years or in fee: Provided always that such and so many lands of the full value of such as are Sold he bona fide purchased and settled for the uses aforesaid and giving to the .said persons, and their successors forever, the' right, on notice, to .elect .and choose, by majority of voices, two Church Wardens, and ap many Vestrymen as shall be wanting to complete the number of twelve Vestrymen, besides tbe two Church Wardens.
On tbe 29th October,. 1712, John Tatham, of New York, and Mary bis wife, by'ian Indenture between them, .of the one .part, apd His Excellency Robert Hunter., Escp, Captain General .and Governor in Chief of the Provinces of New York and New Jersey, and one of .the members .of the Right Honourable the Society for the Propagation of the Gosp.el in foreign parts, of the other part, conveyed to .tbe said Robert Hunter, his heirs and assigns forever, .certain lands .at Burlington upon Delaware River, (describing them.) To Have and to Hold unto the said Robert Hunter, his heirs and assigns forever, to and for the Sole and only -proper use, benefit .and .behalf of tbe Right Honourable tbe Society for tbe Propagation of the Gospel in foreign [529]*529parts, and of their successors and assigns forever, and to no other use or uses whatsoever.
On the 13th April, 1803, by an Indenture between the said li the Society for the Propagation of the Gospel in foreign parts,” of the one part, and the Minister, Church Wardens and Vestrymen of Saint Mary’s Church, in the city of Burlington, in the State of New Jersey, of the other part, reciting, that the said lands were originally designed by the said Society for .the support and maintenance of the Episcopal Church in the said city of Burlington, but, since the separation of the Colonies from &c., have for the most part laid open, and unproductive, either to the said Society or to the said Episcopal Church; and that the Minister, Church Wardens and Vestrymen of the said Church have earnestly requested of the said Society to grant and convey the said lands to and for the use and maintenance of the said Episcopal Church in the city of Burlington, did, “ according to their estate and interest in the premises, and so far as they lawfully can or may, but not further or otherwise,” convey the said lands to the said Minister, Church Wardens and Vestrymen, and their successors and assigns. To Have and to Hold unto them, their successors and assigns forever, for the use and maintenance of the Episcopal Church, in the city of Burlington aforesaid, and .to and for no other use or uses whatsoever.
On the 15th September, 1847, an instrument of writing, under seal, purporting to be an agreement between “ the Minister, Church Wardens and Vestrymen of St. Mary’s Church, of the city of Burlington, in the State of New Jersey, of the first part, and Samuel Wesley Stockton, of the seeond part, was executed, by which the said party of the first .part agreed to convey to the said Stockton, his heirs and assigns, certain .parts of the said lands, (describing the parts,) and then follows this clause in the agreement, “ which comprises all the rihgt, title and interest of the said party of the first part in and to the ground within the above boundaries, excepting, nevertheless, to the owners of lots conveyed by the said party of the first part to Benjamin Shepherd and others the free use and privilege of a 15 feet alley way, running, áre.the aforesaid premises to be free and clear [530]*530of all incumbrance; and the said Stockton agreed, that, on tbe execution of tbe deed as aforesaid, he would pay, &c.; and, for the performance of the said covenants and agreements, each party was, by the said instrument, bound to the other in the <sum of $5,000; which sum it was thereby agreed should be the •■stipulated damages to be paid by the party delinquent to the other performing his or their part of the agreement; the said sum being hereby agreed, fixed upon and stipulated as a liquidated satisfaction to be made and paid, in case of the breach of the said agreement by either party, to the other performing. The agreement fixed a time and place for the delivery of the deed.
The. manner in which this agreement was signed, and the nature and contents of the deed which was prepared as a fulfilment of the agreement on the part of the party thereto of the first part, and the manner in which the said deed was executed and acknowledged, will be found in the statement of the case given by the Reporter.
Stockton did not attend at the time and place fixed for the delivery of the deed. The bill is exhibited to compel a specific performance by him of the said agreement.
The defence set up by the answer is, that the complainants are not able to make a good title. And the principal point discussed on the argument of the case was, whether the complainants could make a good title.
The first ground taken by the Counsel of the defendant is, that the deed of April 13, 1803, from ££ The Society for the propagation of the Gospel in foreign parts,” to “ The Minister, Church Wardens and Vestrymen of Saint'Mary’s Church, in the city of Burlington,” gives the land, not to the use of the said Minister, &c., of St. Mary’s Church only, and, therefore, that the said Minister, &c., of St. Mary’s Church are not, as contended by the Counsel of the complainant, both trustee and sole cestui que trust; but gives the land to the said Minister, &c., of St. Mary’s Church, their successors and assigns forever, for the use and maintenance of the Episcopal Church in the city of Burlington, including, not merely the parish of St. Mary, [531]*531or the said Minister, &e., of St. Mary’s Church, but all other Episcopal parishes or congregations that are, or may in time to come be established in the city of Burlington; and that, therefore, the defendant should not be compelled, with notice of this trust, derived from the title deed of the complainants, to take a deed for the lands from the complainants, under th said agreement between them and him.
This construction of the said deed strikes my mind with much force; and, without saying that it is indisputably correct, it might be sufficient, of itself, to induce a denial of the specific performance prayed by the complainants, on the ground, that a specific performance, at the instance of a vendor, will not be decreed, unless his ability to make a title which will secure to the purchaser the full enjoyment of the property, free from embarrassment, be unquestionable.
But there is another embarrassment to which the defendant would be subjected if he should be compelled to take a title from the complainants. The charter from Queen Anne to “ The Minister, Church Wardens and Vestrymen of the Church of Saint Mary, in Burlington,” limits the power to sell lands, therein given, by the proviso, that such and so many lands, of the full value of such as shall be sold, be bona fide purchased and settled for the uses declared in the said charter. Without examining particularly the doctrine as to the duty of purchasers to see to the application of the purchase money, and the distinctions which prevail on this subject, it is sufficient to say, that this proviso might be a serious embarrassment to a purchaser. He would be subjected to the issue of the question, whether the purpose to which the money arising from the sale is required to be applied be of a definite and limited, or of a general and unlimited nature. If the first, he would, as it seems from the authorities, be bound to see that the purchase money was applied to the purpose mentioned in the proviso. Story’s Eq. Jar., section 1127.
Again, by the agreement for sale and purchase, in this case, a certain sum is agreed, fixed upon and stipulated, as a liquidated satisfaction to be made and paid, in case of the breach of the [532]*532said agreement by either party to the other performing. The parties have fixed their own measure of damages for breach of the agreement; and, whether the sum, from its amount, $5,000, should be considered by this Court as liquidated damages or only in the nature of a penalty, which I have not-now the means of determining, this -provision of the agreement shows that each party contemplated a resort to an action at law for damages, in case of therfailure of the other.to perform on his part.
The relief prayed by the complainants, is denied.
Order accordingly.