55 Md. 5 | Md. | 1880
delivered the opinion of the Court.
This is an action of trespass guare clausum fregit brought by the appellee against the appellant for breaking and entering the plaintiff’s burial lot, No. 19, in “ The Laboring Sons’ Cemetery.” The trespass complained of is, that the defendant in June, 1819, dug a grave in this lot and buried therein the corpse of a child, without the plaintiff’s permission or consent. The facts to be first stated are substantially as follows:
In 1839 an unincorporated voluntary association of colored men was formed under the name of “ The Beneficial Society of Laboring Sons of Frederick.” In 1851 or 1852, this society purchased a lot of ground in Frederick City from Ezra Houck. In the latter year, about one-fourth of this ground was, by order of the society, laid off into sixty burial lots, of twelve by sixteen feet each, and each of these lots was marked and indicated by four corner posts of white marble, with the respective numbers marked on the stones, which are still there and plainly visible. To each full member who had, at that date, paid up all his dues and fees, one of these burial lots was assigned. A plat was also made of the whole, on which was indicated the individual owner of each lot, according to the allotment and division then made, and lot No. 19 was thus assigned to the plaintiff, who had become a member of the society in 1846 or 184T, and had then paid up his dues in full. In August, 1854, a deed was executed by Houck, in lieu of one which had been previously executed, but which had been mislaid and lost before it was recorded, conveying the whole lot of ground to seven named parties, of whom the plaintiff was one, “ and their heirs and assigns forever, in trust, that they, the survivors or survivor of them, and the heirs of such survivors or survivor, shall hold said property upon the trusts indicated and mentioned in the
“ Laboring Sons’ Cemetery.”
This is to certify, that Nicholas Thompson is the owner of lot No. 19 in Laboring Sons’ Cemetery for which 10 dollars have been paid in full for said lot. In testimony whereof, the president of the trustees has hereunto affixed his hand and seal this 2d day of November in the year 1861.
“ Robert E. Probee. [Seal.] ”
“Test: Gyrus Bowen.”
About these facts there is no dispute, and if there was nothing else in the case, there can, we think, be little doubt as to the plaintiff’s right to maintain this action. The facts thus stated make a case where the trustees who held the legal title and were themselves members of the society, the cestui que trust, unite with all the other members, who were fully competent to act, each for himself in
The next question is, had the right or privilege thus secured to the plaintiff been forfeited or lost at the time this action was brought? It seems that in consequence of some disagreement among the members, the plaintiff and twenty others, (the whole number of members being forty) in 1862 withdrew and formed another society called “The Workingmen's Society,” and thereafter ceased to be members of the old society. The other nineteen members remained in and were subsequently incorporated by the Act of 1867, ch/ 343, under the corporate name of “ The Beneficial Society of the Laboring Sons of Frederick City.” In October, 1863, after some dispute, an equal pro rata division
The only prayer of the plaintiff that was granted relates to the question of damag.es and we find no error in it. It tells the jury they may consider the motive and manner with which the trespass complained of was done by the defendant, and though they may find he was instructed by the society, as their sexton, to bury on the lots of which the plaintiff’s was one, they may nevertheless award punitive damages if they find he was not acting in good faith under such instruction, and from an honest belief in the
What we have thus said disposes of all the rulings in the several exceptions. We find no error in any of them, and the judgment must he affirmed.
Judgment affirmed.