Rayner v. Nugent

| Md. | Jun 21, 1883

Ritchie, J.,

delivered the opinion of the Court.

The question presented by this appeal is, whether or not the right of burial in the property in question, at one time enjoyed by certain lot-holders, has been determined ?

In expressing the opinion that such right has been terminated, it follows that the order of ratification appealed from was, in our judgment, properly passed.

The property was conveyed to the Reformed Presbyterian Church of Baltimore by Robert Oliver by deed dated the 15th of July, 1828. By this deed the ground was conveyed in fee, and without any declaration of use or trust whatever. The church seems, however, from the use to which it was dedicated, to have acquired it as a place of burial.

Certificates were issued in the following form, to some, one hundred and forty-one lot-holders:

“ Received from-fifteen dollars, in payment for one lot in the burial ground of the Reformed Presbyterian congregation, to be used only as a burial, place, and' subject to the rules adopted by the board of trustees.

“Vergus Johnston,

“Secretary.”

The corporation, in the course of time and before its conveyance to John Nugent, determined to abandon the use of the ground as a cemetery and to dispose of it. About twelve of the lot-holders were paid back the consideration upon which the certificates were issued, and re-interred their own dead elsewhere. The rest of the lot-holders have not been paid back, and their certificates are still outstanding; but at the time of the sale to Nu-gent, in 1867, the bodies buried in their lots were taken up and re-interred in another cemetery.

No objection -seems to have been made to the removal of these bodies, and the fact that, so many of the certificates are uncollected is .due probably to the distant period at which they were issued. No claim to the right of burial seems to have been made at or since the time of the conveyance of the ground to Nugent; and the possibility of the assertion of such a claim does not appear to rest upon-any demand or intimation coming from the lot-holders, who apparently have acquiesced in the abandonment of the cemetery, but springs solely from a spirit of precaution in the present purchaser, who would guard against such a contingency, however improbable.

The title in fee which the church received having been duly conveyed by deed to Nugent, it is only left to inquire whether there is anything in the character of the certificate issued to the lot-holders that can defeat or qualify the estate thus acquired by Nugent.

It has been frequently held that even when the right of burial in the property of a religious society is acquired by a formal deed, no title vests in the freehold, and at most only an easement is created. But where the instrument is a simple certificate, not under seal acknowledged and recorded, it has been decided by this Court, among others, it will not operate to grant an easement. Hays vs. Richardson, 1 Gill & Johns., 366. Its only effect is to confer a privilege or license to make interments in the lot described, exclusive of others, so long as the ground remains a burying place or cemetery. Whenever, therefore, by lawful authority the ground ceases to be a place of burial, the lot-holders’ rights and privileges cease, except for the purpose of removing the remains previously buried. Partridge, et al. vs. First Independent Church of Baltimore, 39 Md., 631; Kincaid’s Appeal, 66 Penn. St., 411.

In the present case the certificate was simply signed by the secretary (presumably of the board of trustees), without the seal of the corporation being attached, and with no other formality of execution.

Where, therefore, the corporation itself, from whom the trustees could only have a derivative authority, decided that the ground was no longer desirable as a place of interment, possessing the lawful power and authority so to determine, that decision operated to revoke the certificate or license, and the right of further interment was extinguished. The only right remaining was that of removing the bodies of those buried in the cemetery. But as this has actually been done, the lot-holders have no longer any interest in the premises.

That the corporation has in the exercise of its judgment deemed it necessary and proper to abandon the further use of the ground as a place of burial has been plainly manifested, not only by its causing the removal of all bodies therein interred, but is evidenced by necessary implication from its execution of a deed, the most solemn act it could perform, by which it has divested itself of all further control over or title in the property.

(Decided 21st June, 1883.)

What claims, if any, the lot-holders, not reimbursed the money paid as the consideration of their certificates, may have against the corporation, is a question not now directly before us. So far as it is incidentally involved in the present case, it is sufficient to observe that we can perceive no ground upon which they could have any cause of action against the appellant for exercising any rights of possession enuring to him as the successor to Nugent’s fee simple title.

The fact that the sale to Nugent was a private one, and not made under a bill filed according to the provisions of the Act of 1868, chapter 211, does not distinguish this case in its essential principles, from the case of Partridge in 39 Md., above adverted to. That Act of Assembly has furnished additional facilities for parties interested in abandoned burial grounds to procure a sale of the same ; but it in no wise conflicts with the established doctrine relating to rights of burial in the cemeteries of religious bodies derived from certificates similar to that in the present case and their liability to extinguishment, upon which this appeal has been determined.

Order affirmed.