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

by Charles Martin Scanlan

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]