236. Promise, Consideration.—A promise made by the owner of land to a trustee for the benefit of a religious society, that he would convey the land to such society if it would build a church thereon, is a good and lawful consideration; and after work was begun on the church, the contract was enforceable in a court of equity.[423]
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]