Beatty v. Kurtz

A lot of ground had, in the original plan of an addition to Georgetown, been marked "for the Lutheran church," and by the German Lutherans of the place, had been used as a place of burial from the dedication and who had erected a school house on it, but no church; exercising acts of protection and ownership over it at some periods, by committees appointed by the German Lutherans; the original owner acquiescing in the same. This may be considered as a dedication of the lot to public and pious uses: and, although the German Lutherans were not incorporated, nor were there any persons who as trustees could hold the property, the appropriation was also valid under the bill of rights of Maryland. The bill of rights, to this extent at least, recognizes the doctrines of the statute of Elizabeth for charitable uses; under which it is well kown, that such uses would be upheld, although there was no specific grantee or trustee. This might at all times have been enforced as a charitable and pious use, through the intervention of the government, as parens patriæ, by its attorndy general or other law officer. It was originally consecrated for a religious purpose. It has become a depository of the dead; and it cannot now be resumed by the heirs of the donor. [584]

If the complainants in the circuit court were proved to be the regularly appointed committee of a voluntary society of Lutherans in actual possession of the premises, and acting by their direction to prevent a disturbance of that possession; under the circumstances of this case, there does not appear to be a serious objection to their right to maintain a suit for a perpetual injunction against the heirs of the donor, who sought to regain the property, and to disturb their possession. [584]

The only difficulty which presents itself upon the question, whether the complainants in the circuit court have shown, in themselves, sufficient authority to maintain their suit, is, that it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, under all the circumstances, it might be fairly presumed. But this is not necessary; because this is one of those cases in which certain persons belonging to a voluntary society, and having a common interest, may sue in behalf of themselves and others, having the like interests, as part of the same society, for purposes common to all, and beneficial to all. [585]

APPEAL from the circuit court of the county of Washington.

The appellees filed their bill in the circuit court against Charles A. Beatty and John T. Ritchie, which states, in substance, that the late colonel Charles Beatty and George Frazier Hawkins, in the year 1769, laid out on lands belonging [p567] to them, and adjoining the town of Georgetown, a certain town known by the name of "Beatty and Hawkins's addition to Georgetown;" the lots whereof were laid down and distinguished on a plot, and disposed of by lottery. That Beatty in laying out the said addition, distinguished and set apart a certain lot or portion of ground in the said addition, for the sole use and benefit of the German Lutheran church; declaring the same to be their absolute right and property, to be held by them for religious purposes, and the use of said congregation, and caused the same to be so entered and designated in the plot of said addition, as now appears by the plot and papers on record in the clerk's office for Washington, to which they beg leave to refer: which plot and papers were recorded under authority of the act of Maryland 1796, ch. 54; which lot is described in the said plot of said addition, as the German Lutheran church lot, and also in the general plot of the town of Georgetown and its additions, deposited in the office of the clerk of the corporation of Georgetown. That soon after the lots in the said addition were laid off and disposed of as aforesaid, the said lot was taken possession of by the said German Lutherans, and was enclosed, and a church erected thereon; and hath been kept and held by them ever since, during a period, as they believe, of upwards of fifty years, and hath been used by them as a burying-ground for the members of the said church, with the avowed intention of building thereon another church or place of worship, the building first erected being decayed, whenever their funds would enable them to do so. That during all this period, neither their possession nor title hath ever been questioned, and the lot has been exempted from taxation at their request, by the corporation of Georgetown, as being church property. That Charles Beatty died about sixteen years ago, and without having made any conveyance of the said lot, and that Charles A. Beatty is his heir at law. They therefore pray that he may be made defendant, and be compelled to convey the title to the complainants, in trust for the German Lutheran church.

They further state that the defendant John T. Ritchie, without any pretence of title, disputes the title of complainants [p568] and their right of possession, and has undertaken to enter on part of the lot, and to remove tomb stones, &c. and they fear that he means to dispossess them: wherefore they pray subpœna, &c. and that they may be quieted in their possession of said lot, and that the defendant, Ritchie, may be enjoined from disturbing their possession; and for general relief.

The answer of the defendants in the court below, admits that Charles Beatty deceased, did designate a lot in his addition to Georgetown, by inscribing on the plot thereof these words, "for the Lutheran church;" that they always understood and believed that he meant by that inscription to manifest an intention to appropriate that lot to the use of the Lutherans, provided they would build on it, within a reasonable time, a house of public worship, which would conduce to diffuse piety, to enhance the value of his property, and to adorn his addition to Georgetown. But they deny that this inscription was ever meant, or could be interpreted to be a contract with the Lutheran church, to convey to that body the property in question. That the writing itself could not operate as a conveyance, and there was no consideration to sustain it as a contract. They deny that Charles Beatty ever declared the lot in question to be the absolute right and property of the Lutherans; or did, in any manner, by means thereof, hold out inducements to them or the public to purchase tickets in the pretended lottery mentioned in the bill, or to purchase and improve lots in that part of the town. They aver that no church had ever been built on it, and that its occupation by graves and a school house, was a use of it by no means beneficial to defendants, or him under whom they claimed.

The answer denies the possession averred in the bill; and also that there ever was an organized congregation of German Lutherans in Georgetown.

It avers also, that the lot in question has remained unenclosed for at least three fourths of the time since it became a part of Georgetown; and that the enclosures which occasionally surrounded it, were not erected by the complainants nor those whom they pretend to represent. The respondents [p569] admit that the lot was used as a burying ground; but aver that it was thus used by Beatty's permission, and not exclusively by the Lutherans, but the public generally. But they further say, that if the Lutherans had enjoyed the possession alleged in the complainants' bill, they might and should have enforced the rights thereby acquired at law, and ought not to have come into equity for a remedy. Finally, confessing that they had resumed possession of the property, they deny the authority of the complainants to act in behalf of the pretended German Lutheran church, and pray the same benefit of these defences as if they had been urged by plea to the bill.

The plaintiffs amended their bill, by stating, the German Lutheran church, mentioned in their bill, was composed of the members of the German Lutheran church in Georgetown, duly organized as such; "that the lot was set apart by C. Beatty," from and out of that "part of the said land, composing said addition," of which he, the said Beatty, was seised. "The said Beatty, by the said designation, declaration, and setting apart, holding out to the public, and to the German Lutherans particularly, inducements as well to purchase tickets in a lottery, by which the said lots were disposed of, as to purchase and improve that part of the town in other ways. And thereby meaning to transfer to the said German Lutherans, as soon as they should organize themselves into a congregation or church, all his right to said lot in fee, to be used for the religious purpose of such congregation or church, and thereby declaring that intention. That they organized themselves into a congregation or church, and erected a church, or house of worship on the said lot." That the complainants, and the congregation for whom they act, have called upon C. A. Beatty, and required a conveyance according to the promise and declared intent of the said Charles Beatty, deceased: that upon organizing the church or congregation aforesaid, certain officers, called a committee, were appointed to take charge of the concerns of the church; which appointments were, from time to time, made and renewed, and that complainants were appointed in 1824, and have continued to hold such appointment ever since.

[p570] To those amendments, the defendants answered, and denied all the allegations in the amended bill.

It was in evidence, that soon after this lot was thus set apart for the Lutherans, it was, with Colonel Beatty's permission, taken possession of by certain persons of that sect in Georgetown, who had a log house erected on it, which was called a church, and used as such frequently, and also as a school house by the German Lutherans. That in the year 1796, a German minister came from Philadelphia and was employed by them, and preached in this house for three months, being employed and paid by the German Lutherans of Georgetown; and about the year 1799, the congregation of German Lutherans, of which Travers, the witness in this cause, was one, employed a German minister, who officiated in said house for about nine months. Though divine service was frequently administered in that building, there was, at no other periods than those just mentioned, a stationed preacher who ministered to a congregation in regular attendance there, except a Mr Brooke, who was an Episcopal clergyman, and who, Dr Balch testifies, had possession of that building as a church in 1779. In the same, or the following year, a steeple was erected on the said house, in which a bell was hung, at the expense and by the direction of the German Lutherans of Georgetown. This building some years afterwards went to decay, and no church has been since rebuilt on the lot; though efforts have been since made for that purpose, and as late as 1823 a considerable subscription was raised, but not sufficient for the object.

During the whole period from 1769 to the bringing of this suit, the lot in question was generally under enclosures, put up at the expense of the Lutherans of Georgetown, and under the care and custody of a committee appointed by them. It has been continually so enclosed for more than twenty years, before the entry and claim set up by the defendants in this suit. The said lot has been also used by the Germans as a burying ground from the year 1769 till a short time before the bringing this suit, and has been called and known as the Dutch burying ground, and one of the witnesses, Styles, acted as sexton, under the orders of the committee of the [p571] congregation. It does not appear that the German Lutherans in Georgetown, ever were incorporated by law as a religious society.

It also appeared from the evidence, that from the year 1769, till within a month or two before the bringing this suit, no claim to the possession or property in the lot now in dispute, was ever set up by Col. Charles Beatty, or by either of the defendants; but on the contrary, Col. Charles Beatty, up to the time of his death, always declared it to be the property of the German Lutherans of Georgetown; his administrator, Abner Ritchie, who, it is stated, sold all his lots in said addition left by him at his death, never claimed or offered to sell the lot in question, as part of his property; that his son and heir the defendant, Charles A. Beatty, has repeated the same declarations to a witness, (Mountz) a few years before this suit—he expressed "his surprise, that the Germans had been so indifferent about getting their title to this property, as he was always ready and willing to give them a deed for it."

A witness, Mr Rhæffer, testified that in 1823, the defendant Beatty, in his presence, declared, "that the lot aforesaid was the property of the Lutherans, and that he was very anxious to make them a deed. He also confirmed the evidence of the other witnesses.

It also appeared from the evidence, that since the year 1769, the said lot has never been assessed for taxes to Col. Beatty or his heirs, nor have any taxes ever been paid by them. That it has always been recognized by the corporation of Georgetown, since their charter in 1789, as the church property of the Lutherans; and as such, has been exempted from taxation, with other church property in the town.

It was in evidence, that the Lutherans of Georgetown always had a church committee to act for them, and to take charge and custody of the lot in question; and the appellees constituted that committee from 1816, till the bringing this suit, and to the present time. In virtue of that appointment, when Ritchie entered on the premises, and threw down the fence and tombstones, they filed this bill for a conveyance [p572] in fee of the lot, to complainants as trustees for said church; to be quieted in the possession thereof; and for an injunction to restrain the appellants from disturbing their possession, or trespassing on said lot. The circuit court decreed a perpetual injunction against the defendants, the appellants; who, by their appeal, brought the case before this Court.

The cause was argued for the appellants, by Mr C. C. Lee; and for the appellees, by Messrs Key and Dunlop. Opinion

For the appellants it was claimed that the decree of the court below should be reversed, and the bill dismissed.

1. Because neither C. Beatty nor his son, ever did any act which divested either of them of the right of property and possession in the lot in question.

2. Because neither of them ever entered into any contract, (and least of all such an one as a court of equity will enforce), with the appellees, or those whom they pretend to represent, to convey to them or their pretended cestui que trusts the lot in question.

3. Because the appellees, or those whom they pretend to represent, have never had such an adverse possession of the lot as gave them a title to it.

4. Because, if they had, it was such a title as they might and should have enforced at law and not in equity.

5. Because the appellees have failed to show any authority in themselves to prosecute this suit.

Mr Lee contended that the only act done by C. Beatty or his heirs, which can be pretended to have divested them of the title to the lot in question, is the inscription by C. Beatty on the plot of the lot, of the words "for the Lutheran church." No possible interpretation of these can make them act as a conveyance; and the bill itself, which attempts to interpret them into a contract, and which seeks to have that contract specifically performed, necessarily admits the title of the lot to be still remaining in the appellants.

Dismissing then this point, as scarcely made in the case, it will be most perspicuously treated by considering the bill in reference to its different prayers, which are for specific [p573] performance, and to be quieted in possession. This leads directly to the point that the bill shows no contract of which equity will decree performance. The words relied on as creating a contract are the aforesaid inscription, "for the Lutheran church." But of the three requisites of a contract, two are wanting here, viz. parties and a price; and interpret them as you will, no mutuality can be pretended. This of itself is sufficient to prevent the assistance of a court of equity. Howel vs. George, 1 Mad. 12. Moreover, the contract alleged concerns lands, and must therefore, by the statute of frauds, be in writing. But there is no consideration mentioned in the contract as set out; and this has been too often decided to be an essential part of a contract, and therefore to be embraced in the written instrument, to need illustration from cited authorities. True, the plot of Beatty & Hawkins's addition to Georgetown, with the said inscription thereon, was recorded, as alleged in the bill, by the act of 1796, ch. 54; but the Court will perceive by inspecting that act, that it does not affect this discussion.

The appellees will doubtless insist on a part performance of the pretended contract, to relieve themselves from operation of the statute of frauds. This is a matter of fact, which the Court must decide on from the evidence. They will at least remember, that if the appellees rely on their pretended erection of a pretended church, as an execution on their part of the pretended contract, they admit that they were bound by that contract to erect a church; while it will be impossible to regard a log school house, afterwards converted into a dwelling house, and now destroyed, whoever may have called it a church and have preached in it, as such a building to be applied to such a purpose as is called for by a contract to build a church. And it may also be observed upon this part of the case, that this prayer of the bill was refused by the court below, and no appeal was taken from that decision.

As to the second prayer of the bill, he argued that it might be viewed under two aspects. 1. As regarding the complainants below, dispossessed by the defendants, and seeking to be repossessed and quieted; and 2. As regarding the [p574] complainants in possession, and seeking protection against the defendants as intruders or trespassers. Either view of the case is equally fatal to the bill; and for the same reason, because the proper remedy is at law. For, regarded under the first aspect, the bill is what is reproachfully termed an ejectment bill, and clearly condemned. Cooper's Plead. 125; Locker vs. Rolle, 3 ''Ves. Jun. 4, and Ryves vs. Ryves, 3 Ves. Jun.'' 343. And regarded under the second aspect, no precedent can be found to authorise it. The only species of bills which can be mistaken, as affording such a precedent, are bills of peace, and bills founded on the solet. But the least reflection will show, that this is not a case for a bill of peace; which is "made use of where a person has a right which may be controverted by various persons at different times, and by different actions," and "where there have been repeated attempts to litigate the same question by ejectment, and repeated and satisfactory trials." 1 ''Mad. Ch.'' 166. In short, bills of peace lie to prevent multiplicity of actions; and this is not pretended to be brought for that purpose.

Bills founded on the solet are used "where a man is entitled to a rent out of lands, as chief rents or quit rents, and from length of time the remedy at law is lost, or become very difficult;" relief has, in such case, been given in equity, on the sole ground of long and undisputed payment of the rent. 1 ''Mad. Ch.'' 29. But the appellees in this case, or those whom they pretend to represent, never had such an adverse possession of the lot in question as gave them a title to it; and if they had, the argument supposes them in possession, and they can maintain all their rights at law without the aid of the court of equity.

He also contended, that whatever rights any society of German Lutherans might have to the lot, the appellees had shown no authority in them to prosecute their claim to those rights; and that the bill they had filed, regarded in its true light, is a bill to establish a legal title and to obtain a perpetual injunction. That such a bill is [p575] inadmissible, is clearly established by Wilby vs. The Duke of Rutland, 2 Brown's P.C. 41.

Mr Lee, in reply to the argument of the counsel for the appellees, said, the true sources of the success of the appellees in the court below were in the clamour about the pollution of the remains of the dead,—in the declamation about violating the sanctuary of the tomb; which triumphed before the inferior tribunal; and which now places the appellants, literally, in the situation which was but figuratively ascribed to Sextius—

Jam to premet nox, fabulæque manes, Et domus exilis Plutonia.—Hor.

And after all, the only thing done was by one of the appellants, who threw down a part of the enclosure of the lot in dispute; but it was that part which separated it from his own garden. Yet that is complained of as such a nuisance, as that the chancellor will prevent it by injunction! But while this is complained of as a nuisance, why is not that considered to which the appellants are subjected? It may well be that one will consent to have a grave yard in his vicinity, if it be hallowed by a church. The spire which points us to the skies, may reconcile us to the mound which tells of what is mouldering in the earth. But we object to the bane without the antidote,—the objects which awaken the mortal shudderings, without that which inspires the immortal hopes.

He contended that the old acts of Maryland referred to, were entirely inapplicable to this cause. That the case cited from 7 ''John. Ch. Rep.'' does not refer to perpetual injunctions; and that in the one cited from the 4th vol. of the same book, there was a dispute about boundaries, to ascertain and establish which has long formed a head of chancery jurisdiction; and that the extraordinary powers of one of the parties entitled the other to the extraordinary aid of the chancellor.

As to the possession contended for, Mr Lee insisted, that no persons were pointed out who held that possession; that the temporary committees were never incorporated, and there could have been no holding by succession; and that the appellees, so far from showing any authority vested in them to institute these proceedings, had even failed to show [p576] any congregation or religious society which could confer such an authority.

For the appellees it was contended:

The decree below, for a perpetual injunction, was right, if the appellees had title, either under the grant or by possession, and we contend that they had title under both.

1. Under the grant, three objections are made to it: that it is without consideration; that there is no certain grantee; that it is within the statute of frauds.

As to consideration, we admit the general rule to be, that equity will not lend its aid to enforce a mere voluntary agreement. But here there is a consideration. The diffusion of piety and promotion of religion are sufficient to support it. Besides there was a money consideration. The designation of this lot as a church lot, caused the tickets to sell, and enabled the grantor to dispose of his property. It is in proof, that the Germans were by this means induced to buy.

"That there is no certain grantee." It is agreed that upon general principles, this grant could not be executed in favour of a voluntary, unincorporated society, and that the statute of 43 Eliz. ch. 4, having been decided not to be in force in Maryland, no aid can be derived from that statute.

But this grant has had a legislative recognition; act of assembly of Maryland, 1796, ch. 54, sections 3 and 4. That act is as strong a recognition of the grant by the Maryland legislature, as if they had passed a special law with the assent of Beatty, declaring the lot in question to be the property of "the German Lutherans of Georgetown."

If such a special law had passed, would not the courts be bound to give effect to the intent of the legislature and donor. Would they not apply to it the principles of construction adopted by England, in relation to the 43 Eliz. and the charities provided for by that statute. See 4 Wheaton, appendix, p. 11.

It is also contended, that this grant is protected and made valid by the 34th article of the bill of rights of Maryland. The grant is within the exception contained in the 34th article, and that exception ought to have a liberal construction. [p577] Within the narrow limits prescribed by the exception, the principles of construction, adopted in England as to the 43 Eliz., ought to be applied. Within these limits it was, and had been, the policy of the people and legislature of Maryland, to favour the church. Acts of assembly of Maryland, 1704, ch. 38; 1722, ch. 4.

The last objection urged against the grant is, that it concerns lands, is not in writing, and is avoided by the statute of frauds. We answer, that the contract is in writing. The inscription on the plot is by Beatty himself, and describes the lot with certainty. But if it was not in writing, the contract has been performed, the gift executed, and possession delivered and retained, for more than fifty years.

If the grant was void for uncertainty of the donee, then it is contended, that the appellees, and those under whom they claim, have a good title by possession. The lot has been in their adversary possession, by actual enclosures, for more than twenty years.

Having title either under the grant or by possession, the only remaining question is, is there a right to the interference of a court of equity, to restrain Ritchie, the trespasser, by injunction.

It is said the only remedy is at law, for damages; that a court of equity has no jurisdiction to enjoin trespass. It is known that in ordinary cases of private trespass, the proper remedy is at law, for damages; and this has been found sufficient for the protection of property. But in cases of trespass, of a peculiar nature, where the mischief is irremediable, which damages could not compensate; where the injury reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed; the English court of chancery, and the courts of chancery of this country, are in the habit of granting injunctions.

To this point, and in support of the distinction here taken, cited the case of Jerome vs. Ross, 7 ''Johns. Cha. Rep. 332; also 6 Vesey'', 147. 7 Vesey, 307. 1 Brown, 588. 10 Vesey, 290. 17 Vesey, 128. 18 Vesey, 184.

If any case could justify the strong and menacing hand of [p578] an injunction, this is it. What damages can redress the feelings of the injured, or punish, as they ought, the aggressor. What trespass could more effectually destroy the property in the character in which it is enjoyed.

If the appellees had no other title but possession, the case of Varick vs. The Mayor, &c. of New York, 4 ''Johnson's Ch. Rep.'' 53, fully sustains the decree of the court below. In that case Varick, who applied for and got the injunction, set up no other title but possession for twenty-five years.

Chancellor Kent says, "after such a length of time, it is right and just that the plaintiff should be protected in his property, &c. The defendant must first acquire possession of the ground in dispute, not by forcible entry, but by regular process of law. The principle upon which the injunction is to be upheld is, that after a claim of right, accompanied with actual and constant possession for twenty-five years and upwards, the corporation of New York cannot be permitted, without due process of law, to enter upon possession, pull down buildings," &c.

In the case at bar, our adversary possession is long enough to take away the appellants' right of entry.