The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

Chapter XX. Pews

237. Sold, Rented.—Prior to the Reformation pews were not sold nor rented and every member had the right to sit wherever he pleased in the body of the church. After the Reformation, the ordinary or bishop was granted the right of “faculty” to rent or sell pews.[424]

238. Incorporeal Hereditament.—The English title in a pew is in the nature of a right of way through another's land; it is an incorporeal hereditament. In the absence of express law, the title to pews in this country is said to be in the nature of real estate, and in fact not very different from the English title.[425] In some States the title is made personal property by statute.[426] And in others the courts have inquired into the law of the church and adjudged the title accordingly.[427] The general rule is that [pg 136] the owner of a pew simply has an easement.[428]

239. Catholic Church, Pew Rights.—In the Catholic Church, by the canon law, the ownership in or control over a pew is forbidden to laymen. Notwithstanding that, if the party holding the title violates the rule of the church by giving a deed to the pew-holder, the courts would probably sustain his title.[429] However, as the clergy can neither rent nor sell pews without becoming subject to the law of the land and the jurisdiction of our courts, it is important to know what the law of the State is.

240. Land, Use, Rent Pews.—Where land was conveyed in trust to the bishop of a diocese and his successors for the erection of a church for the use of a congregation, the right to rent pews vested under the deed and laws of the Catholic Church in the parish priest and not in the trustees afterward elected, as the parish priest was the agent of the bishop.[430]

241. Trustees, Sale in Perpetuity.—Without authority of law the trustees of a [pg 137] church can not make an absolute sale in perpetuity of a pew without any reservation of rent.[431] The sale of a pew in a church will be determined in a case according to the particular facts.[432]

242. Pew, Right to Occupy, Conditions.—A grant of a church pew in perpetuity does not give the owner an absolute right of property as a grant of land in fee; but gives only a right to sit therein, although he may maintain an action in court for protection of his rights.[433] In Vermont a pewholder has only the right to occupy his seat during religious services and holds it subject to the superior right of the society owning the pew.[434] A condition in the deed to a pew that a holder about to leave the congregation shall offer it to the society for a certain price, is not invalid.[435] Where a pewholder held his pew by a certain agreement and after the church had been remodeled he bought a different pew, the conditions attached to the first pew did not apply to the last.[436] Pews owned by the occupant pass to the heirs as real estate instead of [pg 138] going to the executors as personal property in States where the title is in the nature of the title to real estate.[437]

243. Tax, Assessment.—A tax assessed upon the pew of a religious corporation in part for purposes not specifically named in a deed of the pew, which alone gives the power to make such an assessment and which strictly defines and limits such power, is invalid in toto.[438] The right to make an assessment on pews must be founded upon law, else it can not be enforced.[439] When a congregation sells pews at auction rent free for the purpose of building a church, it has no power thereafter to assess the pews for the salary of the minister.[440]

244. Pewholders' Rights.—A pewholder has the exclusive right to occupy his pew when the house is used for the purpose for which it was erected; but he can not convert his pew to other purposes not contemplated.[441] If he has paid his pew-rent according to agreement, he is entitled to use his pew on all occasions when the house is occupied, even when it is open for purposes different from those mentioned in the conveyance [pg 139] thereof; and he has the right to exclude all others from his pew by fastening the door or otherwise, and any one who enters his pew knowing the facts, is a trespasser and liable to an action for damages.[442] The owner of a pew has no right to put an offensive covering thereon nor use his pew in any way to the annoyance of the congregation or not in keeping with the place and conditions. By placing anything offensive about his pew, he may be liable for maintaining a nuisance, and such offensive thing may be removed; but, as far as possible, it must be removed without damaging the pewholder's property.[443]

245. Rebuilding, Remodeling.—An injunction was granted on the bill of pewholders, restraining the authorities of the church from pulling it down, as they were going to use the materials in the erection of a new church on a different site. On the answer, the injunction was dissolved on the ground that if the complainants had rights which would be violated, there was a remedy at law and that the nature and extent of the injury were not such as called for the interposition of [pg 140] a court of equity by injunction.[444] Where a parish abandons an old church and builds a new one it does not become liable to any pewholder for damages by reason thereof unless it has acted wantonly or intentionally to injure the pewholder.[445] But when it becomes necessary for the purpose of repairing or remodeling a church, to destroy old pews, a pew built by a member under contract with the church can not be removed or destroyed without compensation.[446] Pew rights are subject to the right of the parish to pull down and rebuild a church either as a matter of necessity or expediency, but in the latter case the owner of a pew is entitled to payment.[447] A pewholder has only the right to occupy his pew during public worship, and when the church has become so out of repair that it can not be used for public worship, the owner of a pew can recover only nominal damages for injuries to his pew.[448]

246. Selling Pew on Execution.—In an action to recover the value of a pew sold at auction, the merits of the case will be tried according to the law of the land.[449] It is [pg 141] doubtful whether a pew in a church can be sold for private debts of the pewholder.[450] It depends somewhat upon the title and State law of exemptions.[451] To render an attachment of a pew valid, it is not necessary for the officer to come in sight of the pew or even to enter the church.[452]

247. Members, Pew.—Members of the congregation may be required to pay for a pew or sitting in the church, and where a priest ejected a member from the church because he would not rent a pew, he was sustained by the court.[453]

248. Free Church, Seats, Lease.—The trustees of a free church may assign seats and forcibly remove one from a seat without authority.[454] Where a pew is real estate, a pewholder may acquire the right to it by prescription in the usual way.[455] Where pews are not rented and the members support the church by voluntary subscriptions, they have equal right to the occupancy of the pews. But where the church builds the pews and rents them, a man paying rent for a pew holds it under lease in the nature of a lease to real estate. However, he does [pg 142] not obtain all the rights of a lessee of land, and in many cases a rule of the church governs the holding of pews, which will be observed by the State courts.[456]

249. Executors, Pew-Rent.—The executors of a pew owner are not bound to pay pew-rent accrued after the owner's death.

250. Voting, Pew-Rent, Arrears.—Where a church is incorporated and by its charter or the laws of the State it has authority to make reasonable by-laws, a by-law which prohibits any person from voting whose pew-rent is in arrears for more than two years, is valid.[457]

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