163 F. 870 | U.S. Circuit Court for the District of Northern West Virginia | 1908
(after stating the facts as above). In my opinion heretofore filed in this case passing upon the demurrer to the original bill (150 Fed. 644) I held that the devise to Woods, trustee, for the benefit of the First Spiritualist Church of Baltimore, a Maryland corporation, assuming it to be a religious organization, was absolutely void as being contrary to the public policy and to express constitutional and statutory provisions of this state; that under express statutory provision, the devise having failed, the legal title to the 350 acres in controversy passed, under the residuary clause of the will,
The first of these grounds of defense can be quickly disposed of. It is not alleged in the answers that the deed of Woods to Ahrens or those of Ahrens to his codefendants, sought to be set aside, anywhere disclose a partnership relation. It is not alleged that the oil and gas lease of Fickey to Ahrens disclosed such relation. “A joint purchase of the land by two does not constitute a copartnership in respect thereto, nor does an agreement to share the profits and losses on the sale of land create a partnership. The parties are only tenants in common.” Clark v. Sidway, 142 U. S. 682, 12 Sup. Ct. 327, 35 L. Ed. 1157.
In considering the second defense, we must constantly bear in mind the distinction between contracts void for reasons of state, declared so by its laws or by its policy, as defined by its courts as being against the public interests, and contracts not inherently vicious, but void or voidable by reason of the infirmity of the parties, their fraudulent acts, misrepresentations, or misconduct, or by reason of defects in the execution thereof. When the disability to contract is removed, the party who has acted under disability may ratify and confirm the void act not in itself malum prohibitum. The fraudulent act, misrepresentation, or misconduct of one party to a contract can be waived or condoned by the other, and by such waiver or condonation the latter may completely estop himself to defend against the contract on the ground of such fraud, misrepresentation, or misconduct. If the execution of the instrument be defective, such defects may be waived or subsequent ratification in legal form may be made. There never can be by the parties either ratification or confirmation of a contract that is expressly prohibited by law to be made, or which contravenes public policy. The interests of the state and society intervene and are paramount. If the state forbids the doing of an act because to do it is against public good, one cannot accomplish the act by having another confirm it. Both the act and the confirmation are unlawful, and the one can in no way legalize the other. One cannot be estopped from disclaiming a contract prohibited by law or public policy from being made, no matter how hard he may theretofore have tried to ratify and enforce it. In this case I have in my former opinion reached the conclusion that the Constitution and laws of West Virginia expressly prohibit the incorporation of religious organizations; that they proinbit them as voluntary associations from acquiring more than 4 acres of
“The instruction given to the jury, tljat, if the contract was illegal, the illegality had been waived by the reeonventional demand of the defendants, was founded upon a misconception of the law. In such cases there can be no waiver. The defense is allowed, not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim, ‘Bx dolo malo non oritur actio,’ is limited by no such, qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Wherever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice of the original contract, and void for the same reasons. Whatever the contamination reaches it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded upon its violation.”
But, in addition to this, I have no trouble in concluding that the facts set up in the answer and explained and traversed by the allegations of this supplemental bill would be wholly insufficient to create an estoppel against plaintiff or her mother, if the case were one of an ordinary contract. “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might have perhaps otherwise existed, either of property, of contract, or oi; remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his condition for the worse, and who, on his part, acquires some corresponding right,_ either of property, of contract, or of remedy”' — citing Louisville Banking Co. v. Asher (Ky.) 65 S. W. 831 (quoting 2 Pom. Eq. Jur. § 804); The Alberto (C. C.)
According to the allegations of the supplemental bill, Ahrens had purchased from Woods, trustee, paid the purchase money, and taken conveyance for this land long before he knew plaintiff or her mother, and long before she and her mother signed the petition expressing a desire that the devise be upheld, and agreeing to the payment of $17,-500 to Schirm for the benefit of Mrs. Hopkins out of the funds in court. Flow can he or his codefendants come and say that in making this purchase, paying over the purchase price and taking deed for this land, Ahrens “relied in good faith” upon an act which had not at the time been done, and how could he have been led thereby “to change his condition for the worse” ? But again:
“To constitute an estoppel, the following elements are essential: (1) There must be conduct, acts, language, or silence amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time such conduct was done, and at the time when it was acted upon by him. (4) The conduct must be done with the intention, or, at least, with the expectation, that it would be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. (5) The conduct must be relied upon by the other party, -and, thus relying, he must be led to act upon it. (6) He must in fact act upon it in such a manner as to change his position for the worse” (citing many cases). 3 Words & Phrases, p. 2498.
Finally:
“The doctrine of estoppel in pais has no application where everything is equally known to both parties, or the party sought to be estopped was ignorant of the facts out of which his rights sprung, or where the other party was influenced by the acts pleaded as an estoppel” (citing authorities). 3 Words & Phrases, p. 2500.
“Acquiescence imports and is founded on knowledge. Acquiescence cannot arise unless the party against whom it is set up is aware of his rights. A party cannot acquiesce unless fully appraised of all his rights and all the material facts and circumstances of the case.” Hermann, Estop. 1191.
“Ratification presumes the existence of knowledge of all the facts, and one not informed of the whole transaction is not in a position to ratify the same” (citing Hommel v. Meserole, 18 App. Div. 106, 45 N. Y. Supp. 407, 409; King v. Mackellar, 109 N Y. 215, 16 N. E. 201, 203; Beck v. Donohue, 27 Misc. Rep. 230, 57 N. Y. Supp. 741, 742). Words & Phrases, p. 5930.
See, also, Mullins v. Shrewsbury, 60 W. Va. 694, 55 S. E. 736, a case very much in point.
If the allegations of this supplemental bill he true, and I must assume them to be so on demurrer, neither Ann R. Miller nor her daugh
But it is insisted that this devise of real estate was to Woods, trustee ; that the will directed it to be sold by him and the proceeds- paid to the church, whereby an equitable conversion was made of it as realty into personalty, which, in turn, was taken out of the state and placed in the custody of a Maryland court which then had exclusive jurisdiction over its disposition. This is arguing simply in a circle, and reduces itself to these conclusions: Bickey, it is true, could not devise the land direct to the church, for, if he did, he would be placed in the attitude of doing something against the policy of the law and expressly forbidden by it. He, however, for the purpose of accomplishing this result can simply intervene a trustee, and direct him to sell and give the proceeds to the unlawful purpose. It is not necessary to consider long a proposition having as its basic idea that a court of equity will lend its administration to the accomplishment by indirection of an unlawful act. While it is true that it will enforce its doctrine of equitable conversion, and “consider that as done which is directed to be done” in legitimate cases, it is also true that it will never enforce this doctrine or any other one when its enforcement aids or accomplishes an act against the law or its public policy, an act prohibited. On the contrary, it sweeps away all technicalities, cuts across all cross lots, and opposes with its full power any and all efforts to evade the law and its just and equitable purposes. The weakness of this proposition lies in ignoring the fact that these church organizations are prohibited by law from taking directly or through trustees real estate by gift, conveyance, or devise, except in the amounts and for the purposes set forth by statute. While Woods as an individual could take under devise, Woods, as trustee, as the mere representative of the church, for its sole use and benefit, could no more take than could the church itself. Had the devise been to the church as trustee with direction to sell the land and devote the proceeds to its own use, the condition would not have been one whit changed. Equity never established the doctrine of trusts, never created, suffered, or upheld one, for the purpose of securing the commission of a wrong against society or the violation of an inhibition expressly made by Constitution and statute. It is only necessary to refer to the case of Carskadon v. Torreyson, 17 W. Va. 43, where the real estate by solemn deed was sought to be conveyéd to trustees for the purpose, among others, even allowed and defined by the statute, to wit, that of a residence for the church’s minister, but, because its trust conditions did not as a whole conform to the purposes and requirements of the statute, the conveyance to these trustees was held void.
It is lo be noted, however, that respondents in this answer say:
“They do not know for what purpose said church was incorporated, or whether the creed it sought to inculcate or the rites and practices which it sought to introduce and propagate were religious in their character or not, and on information and belief these respondents deny that tiie denomination so incorporated under the name of the ifirst Spiritualist Church of Baltimore is a religious denomination, and deny that said church seeks to teach and spread the gospel of religion.”
I think this allegation fully sufficient to put in issue the character of the First Spiritualist Church of Baltimore as a corporation and organization, and this is a question of fact to be determined by evidence. Of course, if it be not an organization based upon and for the purpose of teaching and inculcating religion, but, on the contrary, a corporation organized for legitimate wordly pursuits a‘nd ends, then all that I have said in this and my former opinion, assuming the allegations of the bills to the effect that it was such religious organization to be true, as I had to do on demurrer, can have no application to it.