The opinion of the Court was delivered by
Sergeant, J.
The questions that present themselves on this record for determination, independently of the bills of exception, may be reduced to two. 1st. Whether the defendants have shown a right to break and .enter the church, which is the trespass complained of. 2d. Whether, if they havé not, the plaintiffs can maintain this action.
1. To determine the rights of persons claiming as members of either of the congregations by whom this church was originally erected and endowed, there is no other guide than the articles of agreement of the 5th of June, 1788, and the deed of the 10th of June, 1794, conveying the legal title of the land and premises to trustees in trust for the German Lutheran and German Reformed congregations of the Dry Lands. By the former, the respective rights of these congregations, and the privileges, powers and duties of their officers and members are prescribed : by the latter they are placed' on ■ the footing of cestui que trusts,' entitled as such to the protection of a Court of equity; and the legal title is vested in trustees, who possess with it the legal remedies appertaining to it, and the capacity to transmit the title to heirs or new trustees by assignment. The articles of agreement form the fundamental rules and regulations, and are in the nature of a constitution, under which the congregations jointly and severally enjoy certain temporal and religious rights. This mode of holding real estate in trust for religious societies, and others of a charitable nature, was frequently adopted in Pennsylvania when it was a province, instead of a charter of incorporation: and sales and grants of lands for these purposes were ratified and confirmed by act of assembly as early as 1730. The same act gave authority to any religious society of protestants within the province thereafter to take, receive and hold the same, for the uses prescribed in the grant. Their privileges and rights are also explicitly reserved and protected by the constitutions of 1776, 1790 and 1838. They are not incorporated bodies, in the proper sense of the term, but resemble them in this, that their trusts are of [520]*520a public character, and are specially recognised and provided for by the laws and constitution of the commonwealth. By the act of 1818 power is given to the Supreme and other Courts'to remove trustees who abuse or neglect their trusts, and to call them to account. And by the late act of 1836, the chancery jurisdiction of the Courts seems extended to such societies or associations, among others.
The present is an actioh of trespass : the breaking and entering is admitted, but the defendants justify under their rights as members of the religious society of the German Lutheran congregation of the Dry Lands; and their rights in that respect are the subject of decision. The first question is, what right to enter belongs to them as cestui que trusts in the deed from S. Wistar to Gress and Brown : for the trustees are to permit and suffer the premises to be at the disposal, and under the care, regulation 'and management of the two religious societies or congregations, and for no other intent or purpose whatsoever. And these religious societies, their rights and powers, are only known by the articles of agreement of the 5th of June, 1788, under which they were created, and the property and 'privileges of all are to be held and enjoyed. I do not take into view any authority that may be supposed to be derived from the charter of incorporation obtained in 1837. We give no opinion whatever on the justification by virtue of that charter. The Court below threw it out of consideration, and it is not for the plaintiffs in error to complain of an instruction favourable to themselves. It has not been urged by either side here, nor could it properly be presented on this record 'for our consideration. I shall inquire only how far the defendants made out a justification .as members of the German Lutheran society, and cestui que trusts under the deed.
That the defendants were members of the religious society of the German Lutheran congregation of the Dry Lands, mentioned in the articles and deed, seems to have been shown; and it is clear, that as such' they had a full right to enter the church at all times for the enjoyment of their rights as members of that' religious society, agreeably to the tenor of the articles; but it does not follow that they had a right to enter it for a purpose not authorised by them. It could not be contended, that as such members they could enter at any time and for any purpose they pleased. A member entering and breaking a window would be guilty of a trespass. A portion of the members combining and entering to pervert the building to a profane or improper use, would be equally guilty of a'trespass. In Carey v. Holt, (2 Str. 1239,) it is laid down, that in all cases of exceeding the authority given by law, the party is a trespasser; citing The Six Carpenters’ Case, (8 Co. Rep., 2 Roll’s Mr. 501.) And trespass was held to lie for entering a market and erecting a stall there, to sell meat, without the license of the owner of the soil; though the defendant had, of common right, a liberty of coming [521]*521into the market for the purpose of buying and selling. It follows# then, that to excuse the defendants, the purpose for which they entered must be lawful; that is, it must be in conformity with the rules and stipulations of the original agreement under which the two societies were formed, and with the form of government, discipline and organization according to which the land and buildings were purchased and held. If the entry of the defendants was, as it seems clearly shown it was, by a portion of the congregation, a section of the members, in order to assert and maintain a right to place a preacher of their own in the pulpit, then the question arises, was such purpose lawful? Had they a right to do so under the articles?
Here again I throw out of the question, whether Mr. Yeager was duly elected preacher or not — 'Whether the church was then vacant or not — whether, even if he were not de jure preacher, he was not so defacto, under colour of right, and entitled to hold and be regarded as such, in consequence of his having been actually elected and inducted by the church council, the body to whom, by the articles, the authority to elect the preacher is expressly intrusted. The question is, not on the strength or weakness of Mr. Yeager’s title, but on the validity of the acts of the defendants. And I am not able to perceive in these articles any authority given to a body of the members to place a preacher of their own in the pulpit. By the fourth article the trustees, in conjunction with and by the consent of the elders and wardens, have the right to elect and remove the ministers. And by the eighth article no other minister is to preach in the church, except by the consent of the regular minister and vestry, whose part it is at such a time to direct public worship. Whether, therefore, the pulpit was vacant or filled, the consent of the vestry or church council is necessary to give authority to preach; and no other person or persons can give such authority without violating the fundamental articles, and leading to confusion and distraction in the church. - If one portion of the members can do so, another may. If there may be in the same society "two preachers at the same time, representing different sections of the members, there may be twenty.
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The opinion of the Court was delivered by
Sergeant, J.
The questions that present themselves on this record for determination, independently of the bills of exception, may be reduced to two. 1st. Whether the defendants have shown a right to break and .enter the church, which is the trespass complained of. 2d. Whether, if they havé not, the plaintiffs can maintain this action.
1. To determine the rights of persons claiming as members of either of the congregations by whom this church was originally erected and endowed, there is no other guide than the articles of agreement of the 5th of June, 1788, and the deed of the 10th of June, 1794, conveying the legal title of the land and premises to trustees in trust for the German Lutheran and German Reformed congregations of the Dry Lands. By the former, the respective rights of these congregations, and the privileges, powers and duties of their officers and members are prescribed : by the latter they are placed' on ■ the footing of cestui que trusts,' entitled as such to the protection of a Court of equity; and the legal title is vested in trustees, who possess with it the legal remedies appertaining to it, and the capacity to transmit the title to heirs or new trustees by assignment. The articles of agreement form the fundamental rules and regulations, and are in the nature of a constitution, under which the congregations jointly and severally enjoy certain temporal and religious rights. This mode of holding real estate in trust for religious societies, and others of a charitable nature, was frequently adopted in Pennsylvania when it was a province, instead of a charter of incorporation: and sales and grants of lands for these purposes were ratified and confirmed by act of assembly as early as 1730. The same act gave authority to any religious society of protestants within the province thereafter to take, receive and hold the same, for the uses prescribed in the grant. Their privileges and rights are also explicitly reserved and protected by the constitutions of 1776, 1790 and 1838. They are not incorporated bodies, in the proper sense of the term, but resemble them in this, that their trusts are of [520]*520a public character, and are specially recognised and provided for by the laws and constitution of the commonwealth. By the act of 1818 power is given to the Supreme and other Courts'to remove trustees who abuse or neglect their trusts, and to call them to account. And by the late act of 1836, the chancery jurisdiction of the Courts seems extended to such societies or associations, among others.
The present is an actioh of trespass : the breaking and entering is admitted, but the defendants justify under their rights as members of the religious society of the German Lutheran congregation of the Dry Lands; and their rights in that respect are the subject of decision. The first question is, what right to enter belongs to them as cestui que trusts in the deed from S. Wistar to Gress and Brown : for the trustees are to permit and suffer the premises to be at the disposal, and under the care, regulation 'and management of the two religious societies or congregations, and for no other intent or purpose whatsoever. And these religious societies, their rights and powers, are only known by the articles of agreement of the 5th of June, 1788, under which they were created, and the property and 'privileges of all are to be held and enjoyed. I do not take into view any authority that may be supposed to be derived from the charter of incorporation obtained in 1837. We give no opinion whatever on the justification by virtue of that charter. The Court below threw it out of consideration, and it is not for the plaintiffs in error to complain of an instruction favourable to themselves. It has not been urged by either side here, nor could it properly be presented on this record 'for our consideration. I shall inquire only how far the defendants made out a justification .as members of the German Lutheran society, and cestui que trusts under the deed.
That the defendants were members of the religious society of the German Lutheran congregation of the Dry Lands, mentioned in the articles and deed, seems to have been shown; and it is clear, that as such' they had a full right to enter the church at all times for the enjoyment of their rights as members of that' religious society, agreeably to the tenor of the articles; but it does not follow that they had a right to enter it for a purpose not authorised by them. It could not be contended, that as such members they could enter at any time and for any purpose they pleased. A member entering and breaking a window would be guilty of a trespass. A portion of the members combining and entering to pervert the building to a profane or improper use, would be equally guilty of a'trespass. In Carey v. Holt, (2 Str. 1239,) it is laid down, that in all cases of exceeding the authority given by law, the party is a trespasser; citing The Six Carpenters’ Case, (8 Co. Rep., 2 Roll’s Mr. 501.) And trespass was held to lie for entering a market and erecting a stall there, to sell meat, without the license of the owner of the soil; though the defendant had, of common right, a liberty of coming [521]*521into the market for the purpose of buying and selling. It follows# then, that to excuse the defendants, the purpose for which they entered must be lawful; that is, it must be in conformity with the rules and stipulations of the original agreement under which the two societies were formed, and with the form of government, discipline and organization according to which the land and buildings were purchased and held. If the entry of the defendants was, as it seems clearly shown it was, by a portion of the congregation, a section of the members, in order to assert and maintain a right to place a preacher of their own in the pulpit, then the question arises, was such purpose lawful? Had they a right to do so under the articles?
Here again I throw out of the question, whether Mr. Yeager was duly elected preacher or not — 'Whether the church was then vacant or not — whether, even if he were not de jure preacher, he was not so defacto, under colour of right, and entitled to hold and be regarded as such, in consequence of his having been actually elected and inducted by the church council, the body to whom, by the articles, the authority to elect the preacher is expressly intrusted. The question is, not on the strength or weakness of Mr. Yeager’s title, but on the validity of the acts of the defendants. And I am not able to perceive in these articles any authority given to a body of the members to place a preacher of their own in the pulpit. By the fourth article the trustees, in conjunction with and by the consent of the elders and wardens, have the right to elect and remove the ministers. And by the eighth article no other minister is to preach in the church, except by the consent of the regular minister and vestry, whose part it is at such a time to direct public worship. Whether, therefore, the pulpit was vacant or filled, the consent of the vestry or church council is necessary to give authority to preach; and no other person or persons can give such authority without violating the fundamental articles, and leading to confusion and distraction in the church. - If one portion of the members can do so, another may. If there may be in the same society "two preachers at the same time, representing different sections of the members, there may be twenty. Under these articles, it seems to me, there can be but one standing preacher of each of these congregations in that church at the same time; and that no one can be placed in the pulpit as a preacher, unless elected by the church council; or, in cases of occasional preaching, unless it is by the invitation of the actual minister and vestry: and that to place a preacher in the pulpit, not so elected or invited, is a right which no member or body of members, as such, possesses under these articles of the 5th of June, 1788, by which the property was acquired and the church organised.
It is not pretended that the preacher,. Mr. Gorman, in order to place whom in the pulpit, the defendants entered, was ever elected by any church council of that church, or invited by the minister and vestry. He was invited by a body of the members, who had taken [522]*522a stand against the other members, and alleged that they were a majority of the congregation, and claimed the right to go there on the .Wednesday of the week, and place in the pulpit such person as they chose to select to preach. Mr. Gorman was invited, but disappointed them, and the preaching was by Mr. Fox. I am not able to perceive any right in either to do so ; or any right in the members, to force an entry into the church to enable them to preach there.
The measures taken by the defendants seem to have been pursued from a desire to contest the claims of Mr. Yeager and his friends, under the idea that he was tainted with heretical opinions. The mode pursued, however, does not appear to have been adapted to Bring into question the right of Mr. Yeager to occupy the pulpit. If the church council who elected him in 1836 were* unduly chosen, or acted irregularly, they should have been proceeded against by course of law. Their acts could not be'reached by a collateral proceeding, much less by in’egularly inviting another preacher. It may’have been that the friends of Mr. Yeager acted unfaithfully in adhering to him after the trial of strength, by the advice of the synod in 1834. On the other hand, they may have had their own views respecting the character and results of that election, and may have believed that they had no better course to pursue in 1836, in the circumstances then existing, than to elect ■ him. Certain it is, and it is agreed on all hands, that the doings of the synod, in recommending a vote by the members of the congregation, whether he should be the preacher or not, were merely of an advisary character. They could not change the mode of choosing the preacher established by the fundamental articles, nor did they pretend that they could. They indulged the hope that it would prove the means of allaying the feuds that had agitated the German Lutheran society; and it is to be regretted that their efforts failed. Still the respective parties had the right to rest upon their legal titles,' and either could resort to them as the final ground they were determined to stand upon. If Mr. Yeager was an intruder, an action might have been sustained in the name of the trustees against him and those who aided him, for any illegal entry and occupation of the church; or, if the rights and privileges of any members or officers of-the society were invaded, or any powers abused, the chancery jurisdiction of the Court might, under the act of 1836, have been appealed to for redress. But in the present suit the question is, not how far Mr. Yeager was' duly elected or authorised, but whether the defendants had a right to enter for the. purposes they did: And I am of opinion they failed to make out a justification for breaking and entering the church in June, 1837.
2. The second question is as to the right of the plaintiffs to maintain this action. The plaintiffs are the trustees to whom the legal estate was conveyed by the survivor of the original trustees and grantees in the deed of the 10th of June, 1794, from Sarah Wistar. [523]*523They therefore hold the legal estate — the religious societies merely hold, as cestui que trusts, the equitable right to occupy, use and enjoy the buildings and premises, for the purposes mentioned in the articles of agreement of the 5th of June, 1788. The freehold'and possession of these premises passed to the plaintiffs by virtue of the deeds, and never has been displaced by any ouster since. The occupation of the cestui que trusts is under the possession of the trustees ; it is in consistency with their title, and in subservience to it. The property is in the cestui que trusts for all beneficial purposes, but they do not possess the land and buildings in such a manner as to be capable of maintaining an action of trespass quare clausum fregit in their own names'for an injury to the property, even if competent to sue as religious societies, though there may be cases where a cestui que trust has possession, and is then at law tenant at will to the trustees, and' may sue as such. One great object of the conveyance to the trustees originally was to protect the property-against intruders .by suit at law. If .adverse possession were taken, they would be the proper persons to bring ejectment. The rights of these cestui.que trusts and their remedies are of an equitable, kind. Then as the trustees' hold the legal title and freehold for the protection and maintenance of the rights of all the cestui que trusts, the latter ought to have a power to use the names of the trustees at law to protect their rights. If the obstinacy or caprice of one or both the trustees can defeat this remedy, the trustees may defeat the trust at their own will and pleasure. This however is not permitted. A trustee cannot be allowed to defeat the trust: it is a breach of his duty. To be sure, if any of the cestui que trusts use a trustee’s name, he has a right to ask indemnity against the costs from those who sue in his name. • On the other hand, the damages recovered in such a suit as the present, are not for the private use of the trustees or cestui que trusts- suing, but, after repairing any damages to the building, are for the benefit of the society injured. ■«
These principles have been frequently recognised. Court's of chancery have very wisely considered the trustee as-having the legal ownership so far only as to be beneficial to cestui que trust, and not subject to any advantage or disadvantage which may arise from the trustee personally as having the legal estate. Sand. Us. and Trusts, 191. As the trustee cannot prejudice the cestui que trust by doing what he might lawfully do', so he cannot hurt him’ by omitting to do what it was his office to perform. Ib. 193. 3 P. Wms. 215. The trustee can bring any action respecting the trust estate, the cestui que trust, though the absolute owner in equity, being at law regarded in the light of a stranger. Allen v. Imlelt, (Holt, 641.) Where several trustees for the creditors of an insolvent were plaintiffs in an action at law, and one of them whose consent had not been obtained before the action was brought, gave a release to the defendant, but without any consideration, and the defendant pleaded [524]*524the release puis darrien continuance, the plea was set aside without costs, on the terms of an indemnity being given to him who had so released. 1 Chitt. Rep. 390, cited in Willis Trust. 207. Cestui que trusts may use the name of their trustees, giving them a proper indemnity. Ib. 222. Legatees may use the names of the executors to recover in ejectment. Vernor v. Henry, (1 Watts, 193.)
We think there is nothing in the objections to the evidence.
Judgment reversed, and venire facias de novo awarded.