Antones v. Heirs of Eslava , 9 Port. 527 ( 1839 )

COLLIER, C. J. — The

plaintiffs admit, that they do not sue as a corporation, under the act “ to incorporate and empower religious societies of every denomination to hold real estate,” passed in 1819. It seemed to be conceded in the argument, that the powers conferred upon the corporation, under that statute, does not invest it, as such, with the right to all property, of which the Catholic church at Mobile may have been the proprietor under the Spanish government. And the only purpose proposed by the introduction of the recorded articles of government, and the names of the trustees, was to show that the church of the Holy Conception had a “ continuous existence.”

The plaintiffs, then, having disclaimed a corporate existence, we are to enquire whether the allegations in their bill, and the proof upon the record, show that their individual interest in the subject matter of the controversy, is such as to entitle them to be heard.

In the commencement of their bill, after setting forth their names, they style themselves “ trustees of the church of the Holy Conception in the city of Mobile.” How they became trustees, and what their powers, we are not informed. It is not admitted, in the answer, that the plaintiffs are entitled to the character they assume, but, on the contrary, the defendants protest against the assumption as unauthorised, while they insist, that the plaintiffs should have shown how they became trustees, or by what authority they litigate the several matters stated in their bill. The defendants, by questioning the sufficiency of the bill in this particular, do not relieve the plaintiffs from the necessity of showing their interest in. the property in controversy. It is immaterial what may be the rights of the church, they cannot be adjudicated at the instance of persons who discover no interest in their adjtistment. It is not enough for a plaintiff, in an ejectment or trespass to try titles, to prove that the defendant had no title, but that it is vested in á third person, disconnected with either party — the plaintiff must-go farther, and trace a title directly to himself. AS a-question of moráis, the party in possession of property belonging to another, has as good right to retain it,- as; any one else whose' title is no better': and if it were allowable, to dispossess him at. the suit of any one Who might sue, without reference to the question of right, litigation the most vexatious would ensue: the successful plaintiff might, in turn, be ejected by one having ho better title than himself, and the courts of judicature be employed in adjudging controversies, profitless in themselves; and inconclusive of rights.

It cannot have been supposed,- that the want of a direct denial by the defendants, of the plaintiffs’ interest in the controversy, dispensed with the necessity of proof to that point by the latter. True, it has been held, that-where a matter is alleged by the bill, to be peculiarly within the knowledge of the defendant, and he neglects to answer the allegation, his silence shall be construed, into ah admission of its- truth — (Thorington vs. Carson et al. 1 Porter’s R. 257) ; yet the present question is entirely dissimilar — -the' defendants are not charged, nor can they be presumed to be peculiarly conversant of the plaintiffs’ character, but the plaintiffs must know whether they are entitled to sue, or, at least, must have the proof within their own reach, by which that question may be determined. It is not only necessary for the plaintiffs to show that the defendants are answerable to the cause of complaint alleged against them, but they must also prove, that they are answerable to them.

But it is argued for the plaintiffs, that it is sufficiently shown, that they are members of the Catholic church, at Mobile, and, as such, may, in virtue of a community of interest in the property of the church, sue on behalf of themselves, and others. Without controverting the conclusion of the argument, we think the premises are not sustained by the record. The description of themselves as trustees, we have seen, does not dispense with proof of the fact. In looking over the signatures of the male members of the church, to the articles of government, we find two or three names, corresponding with the names of as many of the plaintiffs; yet, if that paper were to be regarded as evidence, for all purposes, it would not prove that any of the plaintiffs were members of the church of the “ Holy Conceptionfor it often happens, that different persons bear the same name, so as to make it unsafe to infer an identity of the person, from an identity of name. There can, indeed, be no necessity for resorting to such proof to establish the plaintiffs’ membership — 4f it really existed, it was susceptible of the clearest demonstration, either from the knowledge of witnesses, or else from the church registry, connected with such testimony.

The case of Beatty & Ritchie vs. Kurtz et al. (2 Peters, 566,) on the point we are considering, is very dissimilar from the present. The court there say, that “ the only difficulty is, whether the plaintiffs have shown in themselves, a sufficient authority, since it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, we should incline to think, that under all the circumstances, it might be fairly presumed. But it is not necessary to decide the case on this point; because, we think it one of those cases, in which certain persons, belonging to a voluntary society, and having a common interest, may sue in behalf of themselves, and others, having the like interest, as part of the same society; for purposes common to all, and beneficial to all.”

In that case, it was shown by the evidence, that the Lutherans, in Georgetown, (the place where the property in dispute was situated,) had been in possession of the lot, though they never had been incorporated: that the congregation “ consisted of a voluntary society, acting in its general arrangement, by committees and trustees, chosen from time to time, by the Lutherans belonging to it. There do not appear to have been any formal records kept of their proceedings; and there have been periods of considerable intermission in their appointment and action. There is no other proof that the plaintiffs are a committee of the congregation, than what arises from the statement of witnesses, that they were so chosen by a meeting of Lutherans, and that their appointment has always been acquiesced in by the Lutherans, and they have assumed to act for them, without any question Df their authority: that they are themselves Lutherans, living in Georgetown, and forming a part of the voluntary society, is not disputed.” These circumstances, we think, very clearly show the interest of the persons undertaking to represent the church — their appointment as trustees, and the recognition of their acts, by the Lutherans. They court were, then, right, in saying, if it were necessary, they would be inclined to presume the authority of the “ plaintiffs ” to sue. But, in the case at bar, there is no proof, either direct or indirect, that the plaintiffs are trustees of the Catholic church at Mobile, that they are members of the same, or have an interest in the decision of the matters stated in their bill; so that the decree of the Circuit court, for the defect of proof in this particular, would seem to us to be defensible in law.

We might here close this opinion, but as it may be more satisfactory to the parties, to learn our views of the law upon the substantial merits of the case, we will examine the pretensions of theplaintifs still further; and we will enquire,

First — Had the Catholic church at Mobile, in eighteen hundred and seven, or at any time previously, an equitable title to the lots conveyed by the deed pf seventeen hundred and ninety-two, to the King of Spain?

Second — Was there such a dedication of the lots to the use of the church, as to invalidate the' sale made by the Jntendant of the province, in eighteen hundred and seven?

1. We propose to consider this question, in reference to the principles which govern analagous cases in equity, as these are not materially variant, so far as the interest of the church is concerned, from the rules of the civil law, in force, to some extent, at Mobile, during the time the Spanish authorities exercised the government of the province.

From the deed, we learn that the King of Spain, through the Intendant, &c. of the province of Louisiana, purchased the property embraced by it, and paid for the same “ in cash, from the Royal chests,” and received a conveyance therefor, “ for the purpose of building thereon a parochial church, and dwelling house for the officiating priest.” If the King was bound, in moral duty, to have thus provided for the church, he might, perhaps, have been regarded as a trustee in the purchase; but none of the citations from the Partidas, which have been made by the plaintiffs’ counsel, or the evidence in the record, show any such duty to have been rested upon the crown of Spain.

Courts of equity have exclusive jurisdiction over matters of trust; and will compel their performance, if a trustee is perverse or faithless — (2 Story’s Eq. 228, 229.) Trusts are either express or implied: the former are created by the direct and positive acts of the parties, by writing, or deed, or will. The language employed, in such cases, need not point out the very nature, character and limitations of the trust, in direct terms, ipsis verbis; if the intention to create it, can be fairly collected from the face of the instrument, it is sufficient; and the trust can be drawn, as it were, ex visceribus verborum.

The words used in the deed, would indicate that it was contemplated by the Intendant, at the time of the purchase, to appropriate the lots to the purposes of the church, yQt there is nothing in the deed, which would oblige him thus to use them; and there is no authority for implying a covenant to hold them for the benefit of the church: such a covenant might well be implied, if the purchase had been made with the funds of the church —but clearly not, where the “ Royal chests,” alone, had contributed the means of payment. This conclusion results from certain analagous rules, which apply to implied trusts — thus, if a man buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee, in trust -for the person who paid the consideration — (2 Story’s Eq. 443, 444, 445.) There are, however, exceptions to this rule; as, if a parent purchase in the name of a son, the purchase will 'prvma facie be presumed to have been intended as an advancement, so as to rebut the presumption of á resulting trust for the parent — (2 Story’s Eq. 445, 446.)

So, also, if an agent or trustee, authorised to purchase lands for another, should purchase lands with the money of his principal, or cestui que trust, and take a conveyance, in his own name, a court of equity would, in such a case, deem the property to be held as a resulting trust, for the person beneficially entitled — (2 Story’s Eq. 456, 457.)

Independent, however, of the absence of words creating an express trust, or authorising its implication, the deed itself negatives the idea, that it was intended to create a trust in favor of the church. The lots were conveyed to His Catholic Majesty, with the express stipulation, that he might “possess, sell, or alienate them, at his sovereign pleasure.” How could this be done, if immediately upon the consummation of the purchase, the King became a mere trustee, and the church the beneficiary %

But, if the pretensions of the plaintiffs were sustained by the laws which were applicable to the church in Old Spain, they could not be recognised here. The control accorded to the Spanish monarchs, over the clergy and church in America, are utterly opposed to the claim set up by the plaintiffs. Notwithstanding the veneration which the Spaniards have manifested for the TIoly Nee, the vigilant and jealous policy of Ferdinand, early prompted him to take precautions against the introduction of the papal dominion in the New World. For that purpose, he obtained from Alexander YI, a grant to the crown, of the tithes, in all the newly discovered countries, on condition that he would provide for the religious-instruction of the natives. Soon after, Julius XI conferred on him, and his successors, the right of patronage, and the absolute disposal of all ecclesiastical benefices there-The Pontiffs, unacquainted with the value of what Ferdinand demanded, bestowed these donations with an inconsiderate liberality, which their successors have often lamented, and wished to re-call. In consequence of those grants, the Spanish monarchs became, in effect, the heads of the Catholic church, in their American possessions — In them, the administration of its revenues was-vested — their nomination of persons to supply vacant benefices, was instantly supplied by the Pope — thus, in all-Spanish America, authority, of every species, centred in the crown — there, no collision was known between spiritual and temporal jurisdiction: the King is the only superior — life name was alone heard of, Without looking to a dependence upon any foreign power. Papal bulls were not recognised as of any force in America, until they had been examined and approved Of, by the Royal Council of the Indies; and if any bull was Surreptitiously introduced and circulated in America, Without obtaining that approbation, ecclesiastics were required not.only to prevent,it from taking effect, but to seize all the copies of it, and transmit them to the Council of the Indies —(Robinson’s Am. 360,362; Prescott’s Ferdinand and Isabella, 492, 493.) Thus limited was the papal jurisdiction in the Spanish possessions in America.

If it were material, we would presume, that the In-tendant of the province of West Florida possessed the power necessary to have authorised the enquiry and decree, for a sale of the parsonage and church lots, on the ground, that he was a public officer of his government, and the act was seemingly regular — (United States vs. Arredondo and others, 6 Peters’ Rep. 727, 728; New Orleans vs. The U. States, 10 Peters’ Rep’. 727.)

"2. That property may be dedicated to public or religious uses, is well established, both in the civil and common law — (The Town of Pawlet vs. Clark, 9 Cranch, 292; Beatty & Ritchie vs. Kurtz et al. 2 Peters, 583; City of Cincinnati vs. The Lessee of White, 6 Peters, 435; New Orleans vs. The United States, 10 Peters, 712; Barclay et al. vs. Howell’s Lessee, 6 Peters, 498.) In order to sustain a dedication of property, it is not necessary that there should be a certain grantee, to whose use it is made, nor is it essential that the right of use should be vested in a corporate body; it may exist in the public, and have no other limitations than the wants of the community at large. In the case of urban property, the dedication of ground to the use of streets, commons, and for charitable and religious purposes, may be shown by a plat,- or plan of survey, by maps, and by use appropri¿ ate to the object for which it was originally destined.In the case before us, it cannot be pretended, that these in dicia combine to divest the title of the King of Spain, and to vest the right of use in the church.- The plaintiffs insist, that the dedication is sufficiently shown by the erection of the church and parson’s house on the lots, and their occupation, for thirteen or fourteen years.- The law do'es not prescribe an exact period, beyond which the original proprietor shall not withdraw property from a religious- or charitable use, to which he has destined it,- or after which the presumption in favor of its dedication shall be conclusive. True, the facts in the record, unexplained by other proof, afford a presumption-,. that the-lots in dispute had been appropriated to the purposes of religion,- yet they are entirely outweighed by the testimony on the part of the defendants.- The petition of the curate to the Inten-dant of the province, asking that the parsonage be repaired, or if that be judged inexpedient, that it be' sold; the evidence, in the deposition of the defendants’ witness, that the crown rented a house for the residence of the curate, &c.-; the Intendant’s- decree, made upon a formal examination, directing a sale; the acquiescence, at the time, and for near twenty years thereafter, in the regularity of the decree, and the proceedings under it, — all serve to show, that the property was only dedicated to the uses of the church, during the sovereign pleasure of the King.

The case of Beatty & Ritchie vs. Kurtz et al. (2 Peters’ Rep. 566,) is unlike the present. In that case, it appeared' that the lot had been marked in the original plan of an addition to Georgetown, “ for the Lutheran church,” and been used by the German Lutherans of the town, from a period immediately after its dedication, and upwards of fifty years, as a place of burial; that they erected on it a school-house, which was occasionally used as a church, but which had gone to decay, and no church had been since re-built. The Lutherans, however, still exercised acts of ownership, for the protection of the property, and contemplated, when practicable, the erection of a church thereupon. The original proprietor always acquiesced in their possession, and after his death, his son and heir declared his readiness to perfect, their title. Here was a clear case of dedication, as shown by a “map,” prepared before the sale of the lots, and long and uninterrupted use, coupled with the silent, as well as declared acquiescence ol all persons interested — which evidences do not exist in the present case. And in the cases cited from 6 and 10 Peters, the evidence to show a dedication is not less satisfactory, than in the case of the Lutheran church.

Other questions, interesting in themselves, have been discussed at the bar, but their decision is rendered unnecessary, by the view already taken of the case — and our conclusion is, that the decree of the Circuit court must be affirmed.