59 How. Pr. 434 | N.Y. Sup. Ct. | 1880
— The evidence clearly enough shows that the conveyance made by the plaintiff to the defendant Hickey, of the burial plot, was intended as, security only for the repayment of the moneys loaned ; and although it is absolute in form, it was a mortgage security only, which character it has not lost, and as such it must be considered (Horn agt. Keteltas, 46 N. Y, 605).
The Greenwood Cemetery Association was incorporated for the purpose of establishing a burial ground, and for this purpose it was authorized to acquire a tract of land within the limits of the city of Brooklyn. The corporation was authorized to sell the grounds in lots or plots, to be used exclusively as a place of burial of the dead (See the original act of April 18, 1839, and the several acts amending same). There does not appear in the charter of this corporation, in terms, any absolute restraint upon the power of voluntary alienation of a cemetery lot by an owner. Yet I am persuaded that when a person has taken a conveyance of a burial lot, and has made interments therein of the dead of his family, it is in such condition that it cannot be mortgaged to secure the payment of a debt or the return of money borrowed. Such an act is prohibited by the equity and true spirit of the statute. For,
Legislation upon this subject has been in accord with the sentiments of humanity, and with the spirit of our civilization, and has shown a considerate regard for the sanctity of the burial places of the dead. By the incorporation of cemeteries, and their preservation as such, it has secured an immunity from disturbance for the dead which could not be obtained through burials in church-yards, which were liable to be unsettled by the sale of the church property.
When the case of Lamtz agt. Buckingham was before Hr. justice Bkadt at special term, he distinctly pronounced against the legality of a mortgage executed upon a cemetery lot by
But that it is an offense against good morals to mortgage a small isolated plot of ground in a cemetery, dedicated exclusively, under the sanctions of the law, as a sanctuary for the dead of one’s family, and already consecrated by the ashes of one’s kindred, I am sure cannot be well questioned. Such a transaction is clearly a breach of the policy of the statute, is contrary to its equity, and is within the evils it was designed to cure, and our moral nature protests against it. As a consequence of such a transaction, we have here a stranger calling upon a father to disinter his three children, who have been buried for a period of ten years in a cemetery lot, with a threat that if the parent will not, he himself will do it. And suppose he carries his threat into execution, what then 3 Sepulture must, in the end, be had, and that, it is believed, the statute was intended to secure permanently against disturbance from any such cause as is indicated by the mortgage in question.
The sentiments and feelings which people in a Christian
But, as has been already decided, the conveyance to Hickey was a mortgage security only, and until the plaintiff’s rights have been judiciously ended through a proceeding in court, his complete possession and control of the lot cannot be interfered with; and for that reason, also, the threatened acts should be restrained, and a suit in equity is a proper proceeding to secure such restraint.
In Kurtz agt. Beaty and another (2 Peters, 566, 584) judge Stout says: “ It is a case where no action at law could afford an adequate and complete remedy. The remedy must be sought, if at all, in the protecting power o"f a court of chancery, operating by its injunction to preserve the repose of the ashes of the dead and the religious sensibility of the living.”
x Taking up dead bodies from the place where they have been interred, without authority, is a misdemeanor at common law (Stephens' Comm., vol. 4, 371; Reg. agt. Twiss, 10 Best & Smith, 298; see, also, paper of Mr. R. S. Guernsey, read before N. Y. Medico-Legal Society, Feb. 4, 1880, on the “ Law of Burial ”).
But, in addition to relief by injunction, I am of opinion that it should be adjudged, for the reasons above stated, that the
The loan of "money made by Hickey to the plaintiff, it is urged on behalf of the plaintiff, was usurious and void, but the relief granted is not put upon that ground; and if Hickey or his assigns conclude that they have any legal claim for the recovery of the money loaned, they are at liberty to institute and prosecute an action for its recovery, to which the plaintiff, notwithstanding this determination, may interpose any defense he may have.