4 Gill 394 | Md. | 1846
delivered his opinion as follows :—
Having assented to the affirmance of the order of the cofirt below, dissolving the injunction issued in this case, for different reasons than those expressed in the opinion of this court, it is due to those from whom I differ, as well as to myself, that I should briefly state my views upon this subject. The gene
But suppose such legal liability be not so clear; and that it is a doubtful question of law, or that the legal exemption is clearly sustainable. What is the proper tribunal for the determination of such a question? Not a court of equity; but a court of law. There is no sufficient ground for the interposition of a court of equity, by way of injunction. By permitting the appellee to proceed in doing that, against which he has been enjoined, no irreparable injury or injustice is done to the appellant. If the property were liable to the charge, it Was against law, equity, and conscience, for a court of equity to interfere to prevent its enforcement. If it were not liable, then no such injury would have been, by the acts enjoined, inflicted upon the appellants, or any body else, as would have warranted the interposition of a court of equity, by way of injunction. The contemplated sale for the payment of the paving tax, would have divested the owners of the lot of no right, legal or equitable. The purchaser at the sale must have sued in ejectment, to recover possession; and in that action he must have been defeated, if the paving tax were not legally
But I cannot assent to the affirmance of the order appealed from, upon the ground that the appellants have no standing in a court of equity, and for that reason, only, not entitled to the relief they seek. Such a proposition assumes, that Robert Walsh, Jr., the heir at law of the surviving trustee, would be entitled to such an injunction as was issued in this case; that he had no interest in the lot of ground, but for the protection of the rights and interests of the cestui que trusts, the Roman Catholics of the city of Baltimore, is apparent upon the face of the conveyance. If then such a trustee refuse to exert the powers necessary for the protection of his cestui que trusts ; or be in a situation, as here, where he has not the means of doing so; should a court of equity deny all relief to an application of the cestui que trusts; on the ground that they cannot be heard in their own behalf, that they have no standing in a court of chancery? Nay, is it not a fundamental distinction between courts of law and courts of equity, that in the former, cestui que trusts cannot be parties, their rights not being recognised at law; but in the latter, they not only may, but must be parties, in all cases where their rights or interests are to be adjudicated? The appellants are Roman Catholics of the city of Baltimore. As such they are cestui que trusts, intended to be benefited by the deed from Fell. If they have no standing in a court of equity, when seeking the protection of then-rights, nobody else can have any. In respect to himself, the rights of the trustee are purely legal; and having no personal interest in the trust fund, he would have no pretence for claiming the interposition of a court of equity, but for the protection of the interests of his cestui que trusts. If for them he could seek it, they can seek it for themselves.
In the case before us, no question can arise as to the forfeiture of the estate conveyed, by a breach of the condition annexed to it. The heirs of Fell, only, and not strangers to
delivered the opinion of this court.
The questions which relate to the merits of this case, involve considerations of the deepest interest to the feelings of the parties affected by the proceedings set forth in the bill.
The prospect of being called to witness the exposure to public sale of the mouldering remains of those who gave to us our being, or received theirs from us, is quite sufficient to call into exercise the warmest passions indulged by a community, of refined sensibilities. Reverence for the dead, must be the sentiment of all who can respect the living. And although the view taken by the court, will prevent them from expressing an opinion of the law, as applicable to the merits of the case, they will not consider it out of place to say, that they are fully convinced of the political and moral obligation of the constituted authorities, to protect the community over which they exercise jurisdiction, from the infliction of such injuries. They owe it to their citizens, as well upon the principle of “protection,” against an act more calculated to destroy their happiness, than are many of the petty offences against which their enactments are properly directed, as also upon the principle of cultivating a sound state of social, moral, and religious character, which cannot be successfully attained by the precepts of schools and colleges, while their instructions are counteracted by the exhibition of spectacles which must shock, and ultimately weaken, the moral sense.
They owe it to the ashes of the dead. Instinct teaches the propriety of reverence for the dead, and the practice of all ages and people has conformed to its teaching.
The court however in the present case, have no other purpose in alluding to such considerations, than to invite the notice of the proper authorities to tlie subject, that they may exempt from sale, as well the temples set apart for the worship and service of that Almighty Being, whose we are, ourselves, and whose, is all we have, as also the ground consecrated to the undisturbed repose of the dead.
The bill, in fact, does allege an entire alteration in the use of the burial ground, as defined, in the deed, when it says, that sipce the erection of St. Patrick’s Church — which is not on the granted premises, — “the use of said burial ground hath been confined to the congregation of that church.”
As the foundation of title, the bill alleges, that the lot was used as a burial ground during the life of Fell, and with his knowledge, consent, and approbation, and with the knowledge and assent of the trustees, and that after the execution of the deed, “the members of the Catholic Church in the eastern part of the city,” with the knowledge and consent of the surviving trustee, and with the knowledge of, and without-objection from, “the heirs of Fell, did erect St. Patrick’s Church on another lot,” retaining the use of the lot so conveyed by Fell, as a burial ground, for the congregation of said church.
Objection was taken to the bill, for the systematic and uniform departure from the language of the deed, in describing the persons for whose use the property was intended. In every instance they are called in the deed “Roman Catholicsin every instance they are called in the bill, “ Catholics,” a designation which, if not common to every branch of the Christian Church, is certainly not exclusively applicable to the particular branch whose members claim under this deed.
We however waive this point, which might be the occasion of an amendment, and we waive also another, not alluded to in the argument, to wit, the sufficiency and certainty in the intended objects of the trust.
We do not think the appellants, or either of them, have any standing in a court of equity, which can entitle them to the interposition of its process. If the conditions of the deed have not been performed, the whole estate, legal and equitable, will have reverted to the heirs of the grantor, unless the heirs of the surviving trustee can allege, and prove in a court of equity, such positive agreement on the part of Fell, or his heirs; or such specific acts of the parties, with the distinct knowledge of the grantor, or his heirs, amounting to evidence of such an agreement, as would entitle the claimants, by a bill for specific execution of such agreement, to a deed of conveyance, discharged of the conditions so violated. There is no such agreement, there are no such facts alleged in this bill, — The trustees had no power to alter or change the na
We are compelled therefore to affirm the decree of Baltimore county court, dissolving the injunction.
decree affirmed.