Silverwood v. Latrobe

| Md. | Mar 15, 1888

Yellott, J.,

delivered the opinion of the Court.

The appellant is the owner of a lot in Greenmount Cemetery; having paid for said lot and received from the proprietors a certificate of ownership which is dated June 17th, 1865. By the Act of 1837, ch. 164, an association of citizens residing in Baltimore City became incorporated by the name of the proprietors of The Greenmount Cemetery. The eighth section of the Act provides : “ That every lot, conveyed in said cemetery, shall be held by the proprietor for the purpose of sepulture alone, and for none other, as real estate, and shall not be subject to attachment or execution.” The land is conveyed by an instrument in writing under seal, to William Silverwood, his heirs and assigns forever, for the purposes of sepulture alone, with the. right of way to and from the lot so conveyed along the avenues, walks, paths and ways of said cemetery.

By the second clause of the instrument, thus conveying this property, the right is given to the grantee of the lot “ to erect stones, monuments or sepulchral structures therein, and to cultivate trees, shrubs and plants in the same.”

By the third and fourth clauses the grantors have secured a right of entry for the purpose of removing anything placed on the lot by the grantee which may have become dangerous, inconvenient or detrimental, or which may be deemed by the president or managers offensive or improper ; but there is no reservation of a right of entry by the grantors for any other purpose.

During a period extending from June, 1865, to April, 1887, the appellant had exercised his right to plant and cultivate trees, shrubs and flowers in his lot, and had employed skillful and competent persons of his own selection to do this work. But early in the last meritioned year the proprietors passed an order prohibiting any person, other than a lot-holder or a member'of his or her family, from doing any work in the cemetery except by a permit from the superintendent. In this order the board of rnana-gers declare their intention to take entire charge, through their employes, of all work that may be necessary to the proper care of all lots in the cemetery and authorize the superintendent to make arrangements with the lot-holders for the particular care of their respective lots, in order to carry out their intention thus declared.

The appellant’s agent, sent to cultivate his lot, .having been excluded by the superintendent, a bill of complaint was filed in the Circuit Court of Baltimore City,asking for an injunction to restrain the said board of managers and the said superintendent from further interference with the plaintiff’s right, by obstructing or denying to "bis agents free access to his said lot, for the purpose of improving or repairing the same. A decree having been passed by the Court below, refusing the relief asked for and dismissing the bill, the questions in controversy have been brought into this Court by an appeal.

The Act of 1837, ch. 164, creating this corporation, does not delegate to it any political powers. The. right “to make such by-laws, rules and regulations as they may deem proper for conducting the affairs of the corporation, for the government of lot-holders and visitors, and for the transfer of stock and the' evidence thereof” is a right given by nearly every charter creating a corporation, and the grant of this right does not invest a corporation with political powers and delegate to it any portion of the State’s sovereignty.

Undoubtedly this corporation had the right to make bylaws, but no by-law was in existence when the appellant purchased and paid for .his lot, which prevented him from employing his own agents for its cultivation and improvement. Nothing is clearer than if a man, in the transaction of his own business, has a right to do any act, he can perform it by the hands of his agent.

The general maxim, as old as our system of jurisprudence, is that whatever a man, sui juris, may do of himself, he may do by another. Coke Litt., 258. Had not this principle been always recognized it is difficult to perceive how the multiform transactions of mankind could have been successfully conducted. The maxim qui fácil per alium facit per se carries with it, by implication, a recognition of the right of every man, unless exercising certain delegated powers and acting in a fiduciary capacity, to employ an agent in the transaction of his business. Therefore, when by the terms of a deed or other instrument, a man has a right to do a certain thing, he can do it either with his own hands or by the hands of an agent; and if the agent is interfered with by the grantor, it is an interference with the rights of the grantee.

“ When burying lots in a cemetery have been conveyed by a corporation, a right of property is conferred on the purchaser, which is like any other right to real estate.” Windt vs. German Reformed Church, 4 Sandf. Ch., 471. Unlike the case of Partridge, et al. vs. First Independent Church of Baltimore, 39 Md., 631, the appellant has a title to the lot by virtue of an instrument of writing under seal, which operates as a deed of conveyance. The Act of 1837 declares the property thus acquired to be real estate. The grantee has a qualified fee, limited to the purposes of sepulture.

The second clause of the instrument, conveying the property, gives him the right to plant and cultivate trees, shruhs and flowers. This he could do either with his own hands or by employing an agent to do the work for him. When he accepted the deed, and paid the purchase money, he acquired this right. Had he heen unahle to secure the right, it is possible, and even probable, that he would not have purchased the property. No order subsequently passed by the.grantors can he so construed as to have a retroactive operation, and thus limit or annul the privilege secured to the grantee by a solemn instrument under seal. As said by Alderson Justice: “ Where the law allows a party to contract, it will not permit that contract, by any matter arising ex post facto, to be made, of no value.” Giles vs. Grover, 1 Clark & Finn., 106.

In Ashby vs. Harris, 3 L. R. C. P., 523, this very question was decided. The burial board of the parish of St. Paneras, being a corporation, had granted, by an instrument under seal, the privilege of making and constructing a private grave, and the exclusive right of burial and interment therein. The grantee ha‘d been accustomed to plant and cultivate flowers by the hands of her agents. Ten years after the grant had been made, the board determined to undertake the planting of graves themselves, and the superintendent was authorized to prevent other-persons from entering the cemetery for such purpose. Notice was also given to the owners of private graves of the determination of the hoard. After such notice had been given, Harris, as the agent of the grantee, entered for the purpose of planting the grave conveyed by the said instrument under seal. He was assaulted and an action for damages was- instituted. It was held that “ the board clearly had no right to make regulations to interfere with that which they had granted in perpetuity.” That “any subsequent regulations made by them would be repugnant and void. They might make general rules and regulations for the management of the cemetery, but not special rules which would derogate from prior grants.”

(Decided 15th March, 1888.)

It is clear that the Court below committed an error in refusing to grant the relief asked for in the bill of complaint, and its decree should therefore be reversed.

Decree reversed, and cause remanded.

Judges Miller and Bryan dissented.