Chapter XXI. Property
251. Unincorporated, Trustee.—The question whether an unincorporated religious society may take a gift or devise, is determined by the law of domicile.[458] Generally an unincorporated religious association can not hold property in its assumed name, but it must be held by conveyance in trust to a trustee named.[459]
252. Charter, By-Laws.—When the charter or by-laws of a church corporation provide that they may be altered, such changes may, after the execution and delivery of a deed, immediately adhere to the title.[460]
253. Suits, Corporation, Members.—Cases may occur in which the corporation in its corporate capacity, or the society in its collective capacity, may be a plaintiff or a defendant in a suit between it and one or [pg 144] more members of the religious society in their individual capacity or in their collective capacity, in a quasi-conspiracy or concerning other torturous acts, or a collective contract.[461]
254. Deed, Court, Title.—A deed made in pursuance of an order of a court having jurisdiction passes good title.[462]
255. Subscription, Lots.—Any one may convey title to a church as his part of the subscription by merely marking it on a plat made by him, as lots donated to such church.[463]
256. Misnomer, Identity.—The misnomer of a religious society or corporation will not invalidate a mortgage where the identity of the society can be clearly shown.[464]
257. Adverse Possession, Color of Title.—A religious corporation may obtain title to land by adverse possession. The length of such possession is determined by the laws of the State, the usual period being twenty years.[465] Unless the laws of the State require it, color of title at the time of asserting adverse possession need not be shown.[466]
258. Sale, Restrictions.—In some States when not restricted by the laws of the organization the parish corporation may sell the premises in order to pay the church debts. However, it is not a common law right.[467]
259. Deed.—A deed to “The Evangelical Order of Christians” was sufficiently definite for a valid conveyance.[468]
260. Error.—A clerical error in the name of the grantee will not make a deed void. However, when such error has been discovered, it should be corrected.[469]
261. Mortgage, Bishop, Debts.—The archbishop of a church to which property is bequeathed, can not mortgage it without authority from the church or under the law.[470] Also, the bishop of a diocese to whom land had been conveyed in trust for a particular congregation, could not execute a valid mortgage thereon to secure his own indebtedness.[471] But a religious society in the absence of prohibitionary legislation, has power to mortgage its property to secure its debts.[472]
262. Deed, Trust, Fee.—A deed of land to a Catholic bishop and his heirs and assigns forever in trust for a Catholic parish for the purpose of a free burial ground, gave the bishop an estate in fee.[473]
263. Debts, Creditors.—A committee of a religious society authorized to sell lands to raise money to pay its general debts, is not authorized to execute a mortgage for the purpose of securing various creditors holding claims; and the defect in such mortgage is not cured by a vote at a subsequent meeting to which the committee made a report of its action.[474]
264. Mortgage or Sale, Notice, Consent.—Whenever there is to be a mortgage or sale of the church property, if it is to be done by the corporation, it must be done strictly in accordance with the charter and laws of the corporation, and if those do not provide therefor, every member should receive a reasonable notice to attend a meeting of the congregation and the question should be submitted to such meeting and a vote taken thereon. If all the proceedings are regular and the proper officers (president and secretary) of the corporation be authorized [pg 147] to make a conveyance, it is good in law.[475] However, if the irregular acts of officers or members of a congregation are subsequently ratified in a lawful manner, they become binding.[476] When consent of the court is required, it must be obtained.[477]
265. Title, Taxes, Judicial Notice.—If the title is in the bishop in fee in accordance with church law it is not “owned by any religious association” and is liable for taxes. The laws of the Catholic Church are not the subject of judicial notice, but must be alleged and proved as any other fact.[478]
266. Title, Diocese, Rule.—Where the title to the property of the diocese was in the bishop for the use of the church and subsequently the diocese was incorporated, the bishop was not divested of title and it was still necessary to have the property conveyed by deed.[479] In some other States, however, the contrary rule prevails.[480]
267. Priest, Deed, Funds.—Where it was claimed that a priest purchased lands and took the deed in his own name and paid [pg 148] therefor with funds belonging to the congregation, the conveyance will not be decreed by the court only upon the clearest and most satisfactory evidence.[481]
268. Monks, Missions, Title.—The fact that the monks or priests were at the head of the missions in California when it was acquired by the United States, does not prove that the Catholic Church had universal ownership of the property.[482] The acts of Congress giving the city of San Antonio authority to sell public lands, was intended, no doubt, to dispose of mission property, but it was held not to affect the Catholic Church, the title to which had been confirmed by another act of Congress.[483]
269. Texan Revolution, Land.—At the time of the Texan Revolution, a Catholic church held no real estate of perfect title, but enjoyed only the use of the land that it possessed and continued so to occupy after the admission of Texas into the Union.[484]
270. Priest, Agent, Deed.—The priest in charge of a congregation is the agent of the archbishop, and where the title to the real estate is conveyed by absolute deed to the bishop, the congregation, against the [pg 149] protest of the priest and without obtaining leave from the bishop, has no right to tear down a church for the purpose of rebuilding or repairing it.[485] And a priest in charge of mission property may maintain in his name an action to recover its possession.[486]
271. Devise, Uncertainty.—A devise of property “to the Roman Catholic Orphans” of a certain diocese, making the bishop of the diocese executor of the will and giving him power to sell the property and use the proceeds for the benefit of the Roman Catholic orphans, is void for uncertainty.[487]
272. Donor, Ambiguous Provision.—The religious convictions of the donor may be shown for the purpose of construing an ambiguous provision of a deed or will.[488]
273. Trust, Evidence.—Without any trust being declared in writing, parol evidence can not be allowed to prove that the Catholic Church and parsonage is held in trust for the congregation by the bishop of the diocese, notwithstanding that the moneys for purchasing the lands and putting up such buildings were collected by subscriptions and contributions made to the priest in charge under the law, usage, and [pg 150] polity of the Roman Catholic Church.[489] At common law land may be granted to pious uses before there is a grantee to take it. In the meantime, the title is in abeyance.[490] Where the title to parsonage lands is in the minister as a sole corporation, on his death the title remains in abeyance until a successor is appointed.[491]
274. Money, Control.—Money raised by a Catholic congregation for the purpose of building a church does not come under the absolute control of the bishop or priest, although put into the hands of the latter for safe keeping. It is subject to the control of the congregation, although the members of the congregation refused to obey the command of the bishop of the diocese to consolidate with another church to which the priest was removed.[492]
275. Church, Building, Removing.—Where subscriptions were secured to build a church at a particular place as a memorial to a certain person, a congregation may be enjoined from tearing down the building and removing it to another place.[493] But a court of equity will not prevent the removal [pg 151] of a church where a majority of the congregation favors it, although a legal meeting had not been held to determine the matter.[494]
276. Church, Use, Division.—A church guild that erected a building adjoining a church for parish purposes, with the assent of the congregation, can not deny the authority of the church and use the building for other purposes.[495] But if members are improperly excluded from the use of the church property they must appeal to the courts for redress and can not resort to acts of trespass to gain entrance into a church.[496] A court of equity will compel persons having charge of the temporalities of a church, whether incorporated or not, to faithfully perform their trust and to prevent the diversion of the property from its original purposes. The court will not interfere in strictly religious matters.[497]
277. Spanish Territory.—When Alabama was a part of Spanish territory, a deed of land “to His Catholic Majesty for the [pg 152] purpose of building thereon a parochial church and dwelling-house for the officiating priest,” the money being paid out of the royal treasury, did not constitute the King of Spain a trustee for the church or transfer to the church in equity a title to the lots.[498]
278. Trust, Purposes, Doctrines.—When a conveyance of a lot is made to certain persons of a religious society and their successors in trust for religious purposes, all the members become beneficiaries in equal degree notwithstanding some of them may have contributed larger sums than others.[499] Land conveyed to a church for valuable consideration belongs to the church, whatever change may take place in its religious doctrines; and if a minority secedes on the ground that they are the ones who retain the original tenets of the church, they can not take with them either the whole or pro rata share of the church property.[500]
279. Control, Revenues.—The trustees of a corporation of a church or of a religious society have entire control over the revenues of such body.[501]
280. Leave to Purchase, Title, Canons of the Church.—A congregation wanted to buy a church and priest's house, but the archbishop refused leave to purchase, but granted permission to keep the premises for religious purposes for a time. The members formed a society and bought and took title in the name of the “Lithuanian Benefit Society of St. Anthony.” Then the archbishop wrote them a letter requiring the deed of the premises to be put in his name, which the congregation refused to do. A part of the congregation brought a suit in equity to enforce the transfer from the society to the archbishop. The court held that if the congregation was under the church and acknowledged its authority, the title must be settled by the canons of the church; otherwise, the majority of the congregation, in a duly called meeting, should determine where the title should be vested.[502]
281. Cemetery, Authority.—When a congregation that had title to a cemetery for many years entrusted the management and sale of the lots to the priest, he had thereby authority to create servitudes, such as alleys to lots, which become binding on the congregation and all third persons.[503]
282. Real Estate, Purpose.—A church has no power to acquire and hold real estate for any purpose other than that of promoting the object of its creation, and any contract entered into for a purchase of real estate as a matter of speculation is ultra vires and void.[504]
283. Limitation, Lands.—A statute of the State prohibiting a religious society from holding more than twenty acres, applies to a single parish or congregation and not to the entire denomination when it consists of more than one congregation.[505]
284. Conditions, Bequest, Deed, Time.—Where property has been devised for a particular purpose or on certain conditions attached thereto, the law may be invoked to protect the fund according to the bequest.[506] And where a deed contained a clause that the lots should never be sold nor used in any other way except for the benefit of a specified Protestant Church, although the deed contained no clause of forfeiture, when the congregation sold the property the grantor was entitled to have the deed set aside and the title re-vested in himself.[507] And a grant [pg 155] made upon condition that a church be erected thereon, prevents the grantee from conveying it for other purposes without the consent of the grantor or his heirs.[508] But where a devise was made on condition that a church be built on the property within three years, the provision being a condition subsequent, a court has the right to extend the time.[509]
285. Will, Forfeiture.—The provision in a will or deed that land shall be used for purposes of a certain church, may create a trust for the benefit of the church only and not a condition the breach of which would work a forfeiture.[510] When a condition is put in a deed that it shall be forever used as a burial ground for the interment of bodies, it is doubtful whether the grantor and grantee together may change the uses of the property. Therefore, it is important in taking deeds to cemeteries to have no condition whatever, unless such conditions are desired.[511]
286. Condition, Quit-Claim.—After conveying land upon a specified condition, the grantor then gave a quit-claim deed, and the [pg 156] court held that that relieved the grant from the condition.[512]
287. Bishop, Trust, Successors.—A deed of land to the bishop of a church for a Protestant Episcopal church in fee simple, created a trust and on the death of such bishop the title passed to his successors.[513] Where a grantee in a deed absolute on its face, is in fact archbishop of the Roman Catholic Church for his diocese, its canons and decrees regulating the mode of acquiring and holding church property are competent evidence to show that the property is so held in trust for purposes for public worship and other charitable uses. And property so held by a Catholic bishop in trust for the diocese, or in trust for a congregation, school, cemetery, or asylum, for the separate use of each, is not chargeable with any part of the expenses of another one or for improving the church property generally in the diocese.[514]
288. Trustees, Vacancy.—When land is conveyed to certain persons as trustees of a church and their successors lawfully appointed, a court of equity will not step in to fill a vacancy but will leave that to be filled [pg 157] by the church in accordance with its discipline.[515] But an attempt to sell real estate of a religious society against the provisions of its charter, will be prevented by a court of equity.[516]
289. Church, Majority, Change.—When property is conveyed to a church having a well-known doctrine, faith, and practice, a majority of the members has not the authority or power by reason of a change of religious views to carry the property thus dedicated to a new and different doctrine.[517]
290. Title, Harmony, Division.—The title to church property in a divided congregation is in that part of the congregation which acts in harmony with the law of the denomination; and the ecclesiastical laws and principles which were accepted among them before the dispute began, are the standard for determining which party is right.[518] In other cases the division of church property, where there is a division of the congregation, depends upon its particular facts.[519] Where $400 was bequeathed to a Lutheran [pg 158] congregation in S——, there being at the time of the making of the will but one Lutheran congregation in the place, but subsequently a majority of the trustees and members with the pastor left the church and built a new one, the old church continued vested with the title to the property and all its funds.[520]
291. Perversion, Misuse, Suit.—Unless there is substantial departure from the purpose of the trust which amounts to a perversion of it, a court of equity will not interfere to prevent the misuse or abuse of a trust of a religious nature. In actions in the State court, if the church is not incorporated, an action should be brought in the names of the members collectively, and if they are too numerous to be all named, the suit may be brought in the name of one or more of them for the whole. The same rules apply to religious societies when sued. However, in some dioceses, particularly in the Catholic Church, the title to the church property is in the bishop and he thereby becomes an interested party who must be made either a plaintiff or a defendant.[521]
292. Rights, Contracts, Torts, Crimes.—Vested property rights, contracts, torts, [pg 159] and crimes, are usually subject to the laws of the State and the control and judgment of a church tribunal is seldom final. While the State courts have no ecclesiastical jurisdiction and can not revise or question ordinary acts of church discipline, they have the power to adjudicate conflicting claims of parties to the church property or the use of it.[522]
293. Cemetery, Assessments.—Where a lot was bought for the purpose of building a church but was used for a cemetery, and a church was built at another place and the deed to the lot was taken in the name of the trustees, the pastor and a member of the church corporation were not the proper parties to bring an action to restrain the State from selling the lot to pay the assessments for pavement, as they had no legal or equitable interest for the protection of which they could claim the interposition of a court of equity.[523]
294. Burned, Revert, Vested.—The fact that a church on lands donated to the parish, on condition of sustaining the church, burned down, the title did not revert to the grantor's heirs.[524] Also land granted a bishop for church uses, vested immediately in him [pg 160] and was not forfeited because it was not used for church purposes.[525]
295. Abandoned, Revert.—Land granted to trustees and their successors forever in trust to erect a Methodist church, according to its rules and discipline, which was used for such church for a long time and then abandoned and sold to parties who converted it into a blacksmith shop, did not thereupon revert in the absence of a provision to that effect.[526]
296. Uses and Trusts.—The chapter of the Wisconsin statutes on religious societies, although not included in the same title as the chapter abolishing all uses and trusts excepting as therein created, was not intended to prohibit the trusts expressly authorized by the former.[527]
297. Trust Funds, Account.—Where a member of the church received funds to invest in his own name for the benefit of the church, he will be obliged in a court of equity to give full account for the money and its profits.[528]
298. Fund, Diverted, Split.—A fund created for a particular purpose, as the education of children in the faith and doctrines [pg 161] of a denomination at the time the fund is created, can not be diverted from its original object.[529] Neither can such a fund be split up when a congregation is divided, but must be retained as created.[530]
299. Church, Personalty.—A church removed from its foundation and put on rollers was severed from the realty and became personal property.[531]
300. Lease, Purposes.—A religious literary society and scientific corporation has power to lease part of a building owned by it for theatrical and operatic purposes.[532]
301. Salary, Lien, Equity.—The church building and the land on which it stands have been held subject to the payment of a debt due for the salary of a pastor of the congregation owning such property.[533] A contractor is entitled to a lien on the church property for work done on the building.[534] A person who became liable for the debts of the congregation incurred in the purchase of church property, obtained relief in equity [pg 162] by subjecting the church property to a sale.[535]
302. Bankruptcy, Creditors.—There is no provision of law for a church corporation to make an assignment in bankruptcy. However, the church corporation may be sued and a receiver appointed to take possession of the property and sequester the assets.[536] But where assignments in bankruptcy and a sale and conveyance of church property are lawful, the church property may be assigned for the benefit of the creditors.[537]
303. Jurisdiction, Process.—In order to obtain jurisdiction where there are contentions between various persons claiming to be officers, the only safe rule is to serve the process on all those who are in the offices or claim the offices upon the occupants of which the papers must be served.[538]
304. States, Property, Restrictions.—Some States restrict the quantity and use of property that a religious society or church may hold. Other States have no restrictions; but nearly all the States have some statutory law on the subject, which is changed so frequently that it would be useless [pg 163] to give the provisions of such law in this work.[539]
305. Land, Limitation.—A statute of Illinois relating to Catholic societies contains no limitations on property rights, but it was held that the general law applied, and that an organization having ten acres could not acquire additional land by devise. A conveyance of land to a corporation after it has taken all the land allowed by law, is void.[540] In Kentucky where a church is limited to fifty acres and a devise was made to a church for the benefit of foreign missions, it was held valid under a statute providing that all devises for relief of aged, impotent, poor people, churches, or for any other charitable or humane purposes, shall be valid.[541] Maryland's peculiar law by which leave must be obtained from the Legislature for a conveyance of more than two acres of land, has been construed to give the Legislature authority to ratify a conveyance that otherwise would be void under the statute.[542] Also, it was held in the same case that a church might acquire more land, but that [pg 164] it would be restricted with regard to its use. A statute prohibiting a religious society from holding more than twenty acres of land applied to a single religious society and not to the denomination.[543] Where the territorial law provided that no religious corporation should hold real estate of greater value than $50,000, a receiver was appointed for the Mormon corporation.[544]
306. Corporations, Bequests.—Foreign religious corporations may be entitled to recover bequests made to them in some States; but the general rule is that a foreign religious society has no better right to take property by devise than a domestic corporation.[545] When the statute requires a conveyance to specify the purpose for which a religious society takes land, the failure to so specify renders the deed void.[546] But the Young Men's Christian Association was declared not within the limitation because it was not formed for pecuniary benefit and profit and was not under the control of any one denomination nor formed for religious worship.[547]
307. Collateral Attack.—A devise of land to a religious society which will increase the title beyond the amount that is allowed by statute, can not be attacked collaterally by a private individual.[548] It is for the State and not for the individual to make inquiry into excess on the part of a religious society in its accumulation.[549]