66 W. Va. 136 | W. Va. | 1909
In condemnation proceedings, the commissioners appointed reported that they had viewed the 4.15 acres of land owned by Charles A. Deaton and others, trustees of the Methodist Episcopal Church South, and proposed to be taken, and were of opinion that $1250 would be a just compensation to them therefor. This report, without exception, was confirmed, and the money awarded ordered to be paid into court, into the hands of the general receiver, and the title to the land was adjudged to be “absolutely vested in fee simple” in the said railway company. The fund so paid into court is the subject of the present controversy. After the money had been so paid into court Honaker, Committee for Huldah Alvis, intervened by petition, setting up right and title thereto, and Deaton and others, trustees, filed their answer thereto, controverting the claims of the petitioner. The case was then referred to a commissioner to take and hear evidence and report who in his opinion was entitled to said fund. He reported that in his opinion Gooch and others, trustees, were entitled to the money. The court, however, sustained the exception thereto, and adjudged the said Honaker, committee, entitled thereto, and directed the money paid over to
Gooch and his co-trnstees originally entered on the land taken under a deed from Joseph H. and Hnldah Alvis of July 4, 1881, whereby, in consideration of one dollar, and by the terms thereof, the grantors undertook to “grant and convey unto the parties of the second part as trustees and to the survivor or survivors of them and to their successors perpetually, in trust for the use of and sole and exclusive benefit of the Southern Methodist Church, commonly known as the ‘Methodist Episcopal Church South/ said tract of land, described as lying in Mercer County, West Virginia, on Brush Creek, and within a mile and a half of the town of Princeton, and near the Alvis Mill, together with the right and privilege to go on and over the contiguous lands and to take therefrom sufficient water to accommodate any congregation assembled there for worship;” and with this habendum: “To have and to hold the said tract or parcel of land unto the said parties of the second part their survivors and successors forever in trust to permit said Methodist Episcopal Church South to erect thereon a Camp Ground for the purpose of publicly congregating for worship. And for any and all other purposes consistent with the discipline of said Church and not contrary to the law of the State of West Virginia, but not to be alienated to a private individual by said Church.”
It is conceded that this deed as to Huldah Alvis is void for want of privy examination. So far as the record shows, however, neither before the death of her husband, occurring in 1884, nor afterwards and before she was adjudged insane in 1904, did she at any time repudiate her deed, or assert any right or title to the land. In 1882 the land was transferred on the land books of Mercer county to C. A. Deaton and others, trustees, and deducted from the tract out of which it had been conveyed. It so remained for every year thereafter; but, except for the year 1882, no taxes thereon were extended against the land; the memorandum on the land book showing, for the earlier years, that it was “Camp Ground,” and for the later years, “church property.”
Besides the invalidity of said deed, the committee of Mrs. Al-vis relies on and tenders the following additional issues of law and fact :• First, that even if the deed was good to Mrs. Alvis,
The plaintiffs in error, though admitting the voidness of the deed as to Mrs. Alvis, by their answer, and in argument, controvert all other propositions of said committee, and affirm and rely on two counter propositions: First, that there was a parol dedication of the property by Mrs. Alvis to the uses and purposes set forth in said deed, by her acts and conduct, estopping her from setting up any claim to the land or the proceeds thereof inconsistent therewith; and, second, that whether the first proposition be true or not, they acquired title to said land by adverse possession. The soundness of these two propositions are, of course controverted by counsel for Mrs. Alvis.
' The question underlying these controverted propositions is, as it seems to us, whether the trust, if created by deed, would be good under our statute, for, if invalid for uncertainty, would it not be void also as a statutory dedication to religious or charitable uses? Of course, we cannot regard the trust as having been created by deed, for that is invalid; but as evidence of a parol dedication, and as defining or describing the trust attempted to be created thereby, would the trust be void for uncertainty ? It is argued for Mrs. Alvis: First, that the “Methodist Episcopal Church South” has many congregations and members scattered throughout the states, and that it is impossible to determine wliich of these many congregations may have been intended by the deed or dedication. Section 2606, Code 1906, properly construed, we think, conclusively negatives this proposition. It provides that: “Every conveyance, devise or dedication which has been made since the first day of January, one thousand seven hundred and seventy-seven, and every conveyance of land which shall hereafter be made for the use or benefit of any church, religious sect, society, congregation or denomination, as a place of public worship * * * * * shall be
Having determined that the gift of the' land would have
It was suggested in council, though not argued here, that possibly the latter clause of section six of chapter 57, being an amendment of said section, by chapter 33, Acts 1882, would save the property to the church as a statutory dedication. But we do not think this provision can be given that effect. That section, by the Act of 1872-3, constituted the trustees of a church, as well as of a college, school, society, &c., and whether
But it is argued that, if the gift be not good as a statutory dedication, it is good as a common law dedication. It is undoubtedly true that dedications of land to public use, as for streets, alleys, public parks, squares, or buildings, &e., whether by deed or by parol, are good at common law, and may be established by all kinds of evidence. 13 Cyc. 454 457-8, 475, and cases cited in notes. But the question we have here is, is a pa-rol dedication to religious and charitable uses good at common law ? The authorities mainly relied on by plaintiffs in error to establish the affirmative of this proposition are,: 9 Amer. & Eng. Ency. L. (2nd Ed.) 27; Hannibal v. Draper, 15 Mo. 634; Pawlet v. Clark, 9 Cranch 332; Beatty v. Kurtz, 2 Pet. 566, and Benn v. Hatcher, 81 Va. 25. These authorities do seem to affirm the proposition, and it is alluded to, without comment, in Sturmer v. County Court, 42 W. Va., at page 730. In 9 Amer. & Eng. Ency. L., at page 23, on the authority of some of the cases just cited, and other cases, it is said: “By analogy, rather than in strict conformity to the common law principle, the doctrine has been invoked to uphold gifts for pious and charitable ’ uses, as'for churches, schools and cemeteries, though their benefits are employed by a certain class and not by the public at large;” and at page 27: ‘Where gifts for charitable objects would fail for want:of a definite grantee capable of receiving the
But it is argued for defendant in error that whatever be the law in other jurisdictions, the gift can not be sustained as a common law dedication: First, because there is no evidence of an intent to dedicate; and, second, that in Virginia and in this State such a gift would be contrary to the public policy of the state, no provision being made therefor by statute, and as manifested by the history of the legislation and the judicial decisions on the subject. In Beatty v. Kurtz, supra, originating in Maryland, and in the cases cited from other states it is argued the decisions were controlled by the statute of Elizabeth in force, or the principles of which were in some way recognized in constitutions or statutes. There is some force in this argument. For example, in the case just referred to, the bill of rights of Maryland recognized and utilized such dedicatory gifts. The authorities all agree that, while no formalities are necessary, there must be unmistakable intent on the part of the dedicator to dedicate, and is argued here that there is no evidence showing any such intent in this case. We think, however, there is abundant evidence of such intent. The deed itself, though invalid as such, is itself evidence of such intent. 13 Cyc. 475, and cases cited in notes. And, if more is needed, there is evidence of transfer of the land for taxes, oral declarations of the dedieatrix, actual participation by her in the use of the property for the purposes for which it was given, acts so positive and unequivocal as to leave no room for doubt. We have no trouble so far as the evidence of intent is concerned. If we assume there was a common law dedication, how will it affect the question we have here as to the right to the money in controversy ? The land dedi
The plaintiffs in error rely on the deed, though originally void, as color of title, and adverse possession thereunder. This presents two questions: First, was there such adverse possession as could have ripened into good title, or was the property abandoned as claimed by defendant in error? Second, can church trustees acquire title by adverse possession, and, if so, what kind of title could they acquire under the deed here involved, as color of title, as against the original grantors? On the question of adverse possession, or abandonment, we think the evidence, though somewhat conflicting, preponderatingly in favor of the finding of the commissioner, and of the plaintiffs
But can church trustees acquire title by adverse possession? The general rule is that a deed, though void, is color of title under which title may be acquired by the grantee by adverse possession. And this rule is applicable, so far as it effects her separate estate, though the grantor be a married woman. Randolph v. Casey, 43 W. Va. 289, 293; Waldron v. Harvey, 54 W. Va. 608; State v. Harman, 57 W. Va. 447; Russell v. Tennant, 63 W. Va. 623. And the authorities -say that church trustees can acquire title by adverse possession, and that the title thus' acquired is not encumbered by any equitable trust' which may have been in force prior to the date on which the adverse possession began. 24 Am. & Eng. Ency. L. 362, and the cases cited in note 9. But if we concede that the grantees, by tak
Our conclusion therefore is to reverse the judgment below, and enter such judgment here as the circuit court should have pronounced, and it will be so ordered.
Reversed and Rendered.