9 Port. 527 | Ala. | 1839
plaintiffs admit, that they do not sue as a corporation, under the act “ to incorporate and empower religious societies of every denomination to hold real estate,” passed in 1819. It seemed to be conceded in the argument, that the powers conferred upon the corporation, under that statute, does not invest it, as such, with the right to all property, of which the Catholic church at Mobile may have been the proprietor under the Spanish government. And the only purpose proposed by the introduction of the recorded articles of government, and the names of the trustees, was to show that the church of the Holy Conception had a “ continuous existence.”
The plaintiffs, then, having disclaimed a corporate existence, we are to enquire whether the allegations in their bill, and the proof upon the record, show that their individual interest in the subject matter of the controversy, is such as to entitle them to be heard.
In the commencement of their bill, after setting forth their names, they style themselves “ trustees of the church of the Holy Conception in the city of Mobile.” How they became trustees, and what their powers, we are not informed. It is not admitted, in the answer, that the plaintiffs are entitled to the character they assume, but, on the contrary, the defendants protest against the assumption as unauthorised, while they insist, that the plaintiffs should have shown how they became trustees, or by what authority they litigate the several matters stated
It cannot have been supposed,- that the want of a direct denial by the defendants, of the plaintiffs’ interest in the controversy, dispensed with the necessity of proof to that point by the latter. True, it has been held, that-where a matter is alleged by the bill, to be peculiarly within the knowledge of the defendant, and he neglects to answer the allegation, his silence shall be construed, into ah admission of its- truth — (Thorington vs. Carson et al. 1 Porter’s R. 257) ; yet the present question is entirely dissimilar — -the' defendants are not charged, nor
But it is argued for the plaintiffs, that it is sufficiently shown, that they are members of the Catholic church, at Mobile, and, as such, may, in virtue of a community of interest in the property of the church, sue on behalf of themselves, and others. Without controverting the conclusion of the argument, we think the premises are not sustained by the record. The description of themselves as trustees, we have seen, does not dispense with proof of the fact. In looking over the signatures of the male members of the church, to the articles of government, we find two or three names, corresponding with the names of as many of the plaintiffs; yet, if that paper were to be regarded as evidence, for all purposes, it would not prove that any of the plaintiffs were members of the church of the “ Holy Conceptionfor it often happens, that different persons bear the same name, so as to make it unsafe to infer an identity of the person, from an identity of name. There can, indeed, be no necessity for resorting to such proof to establish the plaintiffs’ membership — 4f it really existed, it was susceptible of the clearest demonstration, either from the knowledge of witnesses, or else from the church registry, connected with such testimony.
In that case, it was shown by the evidence, that the Lutherans, in Georgetown, (the place where the property in dispute was situated,) had been in possession of the lot, though they never had been incorporated: that the congregation “ consisted of a voluntary society, acting in its general arrangement, by committees and trustees, chosen from time to time, by the Lutherans belonging to it. There do not appear to have been any formal records kept of their proceedings; and there have been periods of considerable intermission in their appointment and action. There is no other proof that the plaintiffs are a committee of the congregation, than what arises from the statement of witnesses, that they were so chosen by a meeting of Lutherans, and that their appointment has always been acquiesced in by the Lutherans, and they have assumed to act for them, without any question
We might here close this opinion, but as it may be more satisfactory to the parties, to learn our views of the law upon the substantial merits of the case, we will examine the pretensions of theplaintifs still further; and we will enquire,
First — Had the Catholic church at Mobile, in eighteen hundred and seven, or at any time previously, an equitable title to the lots conveyed by the deed pf seventeen hundred and ninety-two, to the King of Spain?
Second — Was there such a dedication of the lots to the use of the church, as to invalidate the' sale made by the Jntendant of the province, in eighteen hundred and seven?
1. We propose to consider this question, in reference to the principles which govern analagous cases in equity, as these are not materially variant, so far as the interest
From the deed, we learn that the King of Spain, through the Intendant, &c. of the province of Louisiana, purchased the property embraced by it, and paid for the same “ in cash, from the Royal chests,” and received a conveyance therefor, “ for the purpose of building thereon a parochial church, and dwelling house for the officiating priest.” If the King was bound, in moral duty, to have thus provided for the church, he might, perhaps, have been regarded as a trustee in the purchase; but none of the citations from the Partidas, which have been made by the plaintiffs’ counsel, or the evidence in the record, show any such duty to have been rested upon the crown of Spain.
Courts of equity have exclusive jurisdiction over matters of trust; and will compel their performance, if a trustee is perverse or faithless — (2 Story’s Eq. 228, 229.) Trusts are either express or implied: the former are created by the direct and positive acts of the parties, by writing, or deed, or will. The language employed, in such cases, need not point out the very nature, character and limitations of the trust, in direct terms, ipsis verbis; if the intention to create it, can be fairly collected from the face of the instrument, it is sufficient; and the trust can be drawn, as it were, ex visceribus verborum.
The words used in the deed, would indicate that it was contemplated by the Intendant, at the time of the purchase, to appropriate the lots to the purposes of the
So, also, if an agent or trustee, authorised to purchase lands for another, should purchase lands with the money of his principal, or cestui que trust, and take a conveyance, in his own name, a court of equity would, in such a case, deem the property to be held as a resulting trust, for the person beneficially entitled — (2 Story’s Eq. 456, 457.)
Independent, however, of the absence of words creating an express trust, or authorising its implication, the deed itself negatives the idea, that it was intended to create a trust in favor of the church. The lots were conveyed to His Catholic Majesty, with the express stipulation, that he might “possess, sell, or alienate them, at his sovereign pleasure.” How could this be done, if
But, if the pretensions of the plaintiffs were sustained by the laws which were applicable to the church in Old Spain, they could not be recognised here. The control accorded to the Spanish monarchs, over the clergy and church in America, are utterly opposed to the claim set up by the plaintiffs. Notwithstanding the veneration which the Spaniards have manifested for the TIoly Nee, the vigilant and jealous policy of Ferdinand, early prompted him to take precautions against the introduction of the papal dominion in the New World. For that purpose, he obtained from Alexander YI, a grant to the crown, of the tithes, in all the newly discovered countries, on condition that he would provide for the religious-instruction of the natives. Soon after, Julius XI conferred on him, and his successors, the right of patronage, and the absolute disposal of all ecclesiastical benefices there-The Pontiffs, unacquainted with the value of what Ferdinand demanded, bestowed these donations with an inconsiderate liberality, which their successors have often lamented, and wished to re-call. In consequence of those grants, the Spanish monarchs became, in effect, the heads of the Catholic church, in their American possessions — In them, the administration of its revenues was-vested — their nomination of persons to supply vacant benefices, was instantly supplied by the Pope — thus, in all-Spanish America, authority, of every species, centred in the crown — there, no collision was known between spiritual and temporal jurisdiction: the King is the only
If it were material, we would presume, that the In-tendant of the province of West Florida possessed the power necessary to have authorised the enquiry and decree, for a sale of the parsonage and church lots, on the ground, that he was a public officer of his government, and the act was seemingly regular — (United States vs. Arredondo and others, 6 Peters’ Rep. 727, 728; New Orleans vs. The U. States, 10 Peters’ Rep’. 727.)
"2. That property may be dedicated to public or religious uses, is well established, both in the civil and common law — (The Town of Pawlet vs. Clark, 9 Cranch, 292; Beatty & Ritchie vs. Kurtz et al. 2 Peters, 583; City of Cincinnati vs. The Lessee of White, 6 Peters, 435; New Orleans vs. The United States, 10 Peters, 712; Barclay et al. vs. Howell’s Lessee, 6 Peters, 498.) In order to sustain a dedication of property, it is not necessary that there should be a certain grantee, to whose use it is made, nor is it essential that the right of use should be vested in a corporate body; it may exist in the public,
The case of Beatty & Ritchie vs. Kurtz et al. (2 Peters’ Rep. 566,) is unlike the present. In that case, it appeared' that the lot had been marked in the original plan of an addition to Georgetown, “ for the Lutheran church,” and been used by the German Lutherans of the town, from a period immediately after its dedication, and upwards of fifty years, as a place of burial; that they erected on it a school-house, which was occasionally used as a church, but which had gone to decay, and no church had been since re-built. The Lutherans, however, still exercised acts of ownership, for the protection of the property, and contemplated, when practicable, the erection of a church thereupon. The original proprietor always acquiesced in their possession, and after his death, his son and heir declared his readiness to perfect, their title. Here was a clear case of dedication, as shown by a “map,” prepared before the sale of the lots, and long and uninterrupted use, coupled with the silent, as well as declared acquiescence ol all persons interested — which evidences do not exist in the present case. And in the cases cited from 6 and 10 Peters, the evidence to show a dedication is not less satisfactory, than in the case of the Lutheran church.
Other questions, interesting in themselves, have been discussed at the bar, but their decision is rendered unnecessary, by the view already taken of the case — and our conclusion is, that the decree of the Circuit court must be affirmed.