88 Neb. 2 | Neb. | 1910
The attorney general, having been previously directed by the state board of public lands and buildings so to do, filed his petition in the district court for Lancaster county, in which it is alleged that the state acquired title to lots 7, 8 and 9, in block 65, in the city of Lincoln, on or about August 2, 1867, and under the provisions of an act of the legislature of June 14, 1867, and of an act approved February 15, 1869, respecting church lots, on the 6th day of September, 1870, sold and attempted to convey said lots to the First Catholic Church of Lincoln, and the deed of conveyance was made to Emanuel Hartig, Michael Hofmayer and Joseph Sands, as trustees of said church, and to their successors in trust therefor, and which deed was duly recorded in the deed record of Lancaster county; that the said Sands died intestate in the year 1882, and that Mrs. John Zimmerer and F. Joseph Sands are his children, and sole heirs; that after the execution of said deed P. W. O’Con-nor, James Ledwith and Thomas Heelan succeeded to said trusteeship, and as such attempted to convey the premises to the Right Reverend James O’Connor, the then bishop of the Catholic diocese of Nebraska, and to his successors in trust, as such bishop, for St. Theresa Congregation, which was the same organization as the said First Catholic Church, and that said deed was duly recorded;
The case has been elaborately briefed and argued at the bar of the court by the parties to the suit, and a comprehensive brief has been filed by Messrs. Smyth, Smith and Sell all, as friends of the court, and as representing clients of theirs who, it is claimed, are interested in the result of the action for the reason that defendant claims to have made a contract with them for the sale of the property in dispute. It is stated in this brief that “there is nothing in controversy between the plaintiff and the defendants. It is purely a moot case, brought by the direction of the board of public lands and buildings, at the instance and request, as we think, of Bishop Bonacum. It is not even a moot case, so far as the plaintiff and the defendants are concerned, because in such a case there is something submitted for decision, while in this case there is nothing to submit for decision, as far as they are con
We frankly admit that, if it were shown that the suit does not present conflicting interests between the parties to it, we would hesitate to take jurisdiction, even on appeal, but we are unable to find any evidence in tlie record that such is the case. The action is brought by and under the direction of the board of public lands and buildings, and it was evidently their intention to procure a settlement of the question of the title to the property. It is clear from the issues presented that the demands of the parties are adverse. The fact that the suit may be a friendly one, if true, would not of necessity render the suit a moot case. See sections 567 and 569 of the code. In Adams v. Union R. Co., 21 R. I. 134, 44 L. R. A. 273, it is said: “A moot case is one which seeks to determine an abstract question, which does not rest upon existing facts or rights. Where a concrete case of fact or right is shown, we know of no principle or policy of law which will deprive a party of a determination simply because his motive in the assertion of such right is to secure such determination. It is a matter of common practice.” We are also unable to see how a decision of this action in favor of defendant could by any course of reasoning affect adversely the rights of the third party to whom reference is made in the brief. If, as is claimed in the brief, there is a. dispute as to whether a certain contract has been entered into, that question must be for the civil courts alone, and no ecclesiastical tribunal has any jurisdiction or power to adjudicate the question. If the property in question belongs to the state, this action would settle the question in its favor. If it belongs to the defendant, the decision must be equally conclusive. It is quite true that there is no controlling question of fact presented. The litigation pre
It is shown by the pleadings of both parties that the conveyance was made by the state to the three trustees of the First Catholic Church of Lincoln, the grant being unto said trustees “and their successors in trust for said church,” as appears from a copy of the deed set out at length in the petition; that at that time the church was not incorporated, but was an organized association or body of worshippers occupying the property for the purpose of public worship according to the usages, forms and rites of the Roman Catholic church, and that such occupation and method of worship has been retained and practiced from that time (1870) to the present, the same organization having been since said date duly incorporated and the property conveyed to it by the legal successors in trust. The persons named Avere the recognized trustees of the church, and they, and their successors, so continued. The conveyance was in pursuance of a sale of the property under authority of law by the state to the trustees for the church. This conveyance was made in pursuance of the act of the legislature approved February 15, 1869 (laws 1869, p. 276), which approves the acts of the commissioners in “settling upon three lots in the town of Lincoln, for the use of each of the several religious denominations” and authorizes the governor to execute deeds of conveyance “to the trustees of those churches or religious societies, as soon as they shall have erected on those lots a building for public worship: Provided, said building shall be erected within tAVo years.” The deed bears date September 6, 1870, which was within less than two years after the passage of the act, and it is alleged in the answer that, prior to the time of the execution of the deed to lots 7, 8 and 9, the church had erected thereon a substantial brick church building which had been dedicated to the use of public worship. As the act of the legislature provided for the conveyance of “church lots” to the trus
The title to lot 10, in block 65, is not in dispute in this action, the state making no claim to it, nor does it appear that any one is claiming it adversely to the defendant. The district court, upon the averments of defendant’s cross-petition, found the title to be in it, and the decree in that behalf will not be reviewed nor molested The decree of the district court is
Affirmed.