Strother v. Barrow

LAMM, J.

Ejectment. Defendant appeals from a judgment in favor of plaintiffs for an undivided two-sixths interest in a tract situate in the hamlet of Ashley, Pike county.

Ashley was not laid out true to the cardinal points of the compass. Its subdivisions run from the northeast to the southwest. Among them is a square acre once belonging to Boyd, the common source of title. Boyd deeded seventy feet in rectangular shape off the southwest end of his acre to the Old School Presbyterian Church, putting the title in named trustees. The residue he deeded to his daughter, Mrs. Dorsey, and she conveyed to defendant. The church seventy feet passed by mesne conveyances (so plaintiffs, claimed) to plaintiffs as trustees of the Ashley Church of the Methodist Episcopal Church, South. It will he observed that plaintiffs, who sued for all, were awarded possession of an undivided two-sixths interest only, and abided the judgment. One phase of the dispute is over the boundary line between the church’s seventy feet- and Barrow’s residue; another *246 is adverse possession. The parcel in controversy is a strip eleven feet wide at one end, six feet ten inches at the other, and three and sixteen-hnndredths chains long.

A map, furnished by appellant is, so far as it goes, accurate enough to aid in grasping the situation, viz.:

The petition was conventional; the answer was a general denial, coupled with two affirmative pleas (one the ten-year and the other the thirty-year Statute of Limitations); the reply was conventional.

At the close of plaintiffs’ case and again at the close of the whole case, defendant interposed a demurrer to plaintiffs’ evidence, which was overruled and he saved the point. No other instructions were, asked on either side. The trial Was to the court with *247 out the aid of a jury and, at defendant’s request, the court made a finding of facts.

Facts essential to the determination of questions raised will appear in connection with rulings thereon.

The assignments of error are:

“1. The court erred in refusing defendant’s instructions in the nature of a demurrer to the evidence offered at the close of plaintiffs’ testimony and at the close of all the testimony.

“2. The court erred in refusing to give effect to defendant’s adverse possession, which he affirmatively found to have continued from 1890 down to the date of the institution of the suit.

“3. The court erred in finding that the strip' of ground in controversy was not conveyed by the deed from Cary A. Boyd to Elizabeth Dorsey and by the deed from Elizabeth Dorsey to the defendant Barrow.

“4. The court erred in interpreting the deed from the alleged officers of the Old School Presbyterian Church to the Universalist General Convention, a New York corporation.

“5. The deed purporting to be from the Univer-salist General Convention, a corporation, to the trustees of the Methodist Episcopal Church, South, dated October 25, 1905, was ineffective to convey any title and the acknowledgment thereto was fatally defective. ”

Of these in their order.

1. Of the demurrers.

In effect, the demurrers search, under guise of a general form, errors specified in assignments 2, 3, 4, ■and 5. Hence a disposition of those specifications will be tantamount to an appellate ruling on the demurrers. Accordingly we pass by that assignment eo nomine, as filling no separate function on appeal.

*248 II. Of adverse possession.

The court found that defendant had been in possession under claim of title uninterruptedly and adversely since the year 1890 up to the date of the suit, 1908. To break the force of that finding, it also found that the Statute of Limitations could not be invoked as a bar to plaintiffs’ claim or to create title in defendant. Contra, that Sec. 1886, R. S. 1909, applied to the facts—that section reading :

“Nothing- contained in any Statute of Limitations shall extend to any lands, given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State.”

To break the force of that ruling, defendant contends that, assuming the original grant to the trustees of the Old School Presbyterian Church to be for a “pious and charitable use,” yet on the' facts here, that use was abandoned; whereat (on such abandonment) the statute began to run and continued to run, although a pious use of the property was subsequently resumed. In outline such is the controversy under this head.

We are of opinion the ruling, nisi, was correct. This because:

(a) For present purposes it will be assumed that the strip in dispute passed by the deeds in plaintiffs’ chain of title, and not by the deeds in defendant’s. Whether that assumption be correct will be looked into presently. On that assumption, out of abundant caution, we reserve the question whether a stranger to conveyances creating a pious or charitable use can, in aid of his claim of adverse possession by limitation, raise the point of its abandonment. Whether the grantor who conveyed to the use, or his descendants, under the notion of a reverter, may make the point, or whether some proper party suing in equity to regulate the use may assert rights under a nonuser or abandonment, we need in no wise consider. In this *249 discussion, we take the point as we find it and shall assume, without deciding, that defendant can make it.

(b) From ancient times a pious use has been considered a charitable use. The quoted statute speaks of both, but in a broad sense the one includes the other. The principles of law governing one govern the other. Under the old English act, known as the Statute of Charitable Uses (43 Elizabeth, ch. 4), money and lands granted for the repair of churches created a charitable use. That act is part of our common law, but it has been held that its enumeration of charities is not pre-clusive. There are other objects deemed charitable in a legal sense (Buchanan v. Kennard, 234 Mo. 117 ), and a grant for the building of a church has always been considered as raising a charitable use — religion being but part and parcel of charity for purposes of jurisprudence. Indeed defendant’s counsel concede, impliedly, that the original grant from Boyd was to a pious use within the meaning of section 1886, supra. The deed from the common source of title, Boyd, passed the title in 1870 to named trustees, elders of the Old School Presbyterian Church in the town of Ashley in consideration of one dollar and the further consideration of grantor’s “love, regard, reverence, attachment and affection for said Old School Presbyterian Church.” The grant ran to said elders and their legal successors in office. In ordinary warranty form, its habendum clause reads:

“To have and to hold the premises aforesaid with all and singular the rights, privileges, immunities and appurtenances thereto belonging or in any wise appertaining unto the said parties of the second part and untó their legal successors to be elected as aforesaid forever, in trust, for the use of the congregation of said Old School Presbyterian Church, and in trust, that the said parties of the second part and their successors to be elected, as aforesaid, shall have the control and direction of the use and occupancy of the *250 building now being erected on said described lot, wben erected, for tbe worship of G-od and tbe transaction of any business tbat bas for its object tbe promotion of tbe Redeemed Kingdom. ’ ’

Now, it is hornbook doctrine tbat grants for a pious or charitable use (as this evidently was) .are favored by tbe law. Tbe legal maxim is: Tbe law ,favoretb charity. [Wing. 144.] Another is: Tbe church is to be more favored than a person. (Ecclesiae magis favendum est quam personae.) So, too, tbe idea of perpetuity is of tbe very essence of such grant. “If tbe court considered tbat it was for tbe public benefit tbat tbe property in question should be devoted forever to fulfilling the purpose named, it held that purpose good. Thus it held good all trusts for promoting tbe established religion, also all trusts for keeping up-schools and hospitals, and many other trusts. These trusts, for purposes which tbe law considers it for tbe public benefit to perpetuate forever are called charitable trusts. This is tbe only general definition which can be given of tbe word charity.” [Tyssen on Charitable Bequests, p. 5.]

In judicially approaching, then, the question of abandonment, tbe right doctrine needs must be tbat tbe law looks with disfavor on tbe abandonment of a pious or charitable use. Therefore, on a priori principles tbe evidence required to establish abandonment should be of a stringent and conclusive character, leaving no reasonable loophole for escape from the conclusion.

Abandonment of a pious use involves two elements, to-wit, (1) the intent to abandon permanently and (2) the physical fact of nonuser for religious purposes. These two elements must conjoin and both be operative at the same time or there can be, in the very nature of things, no abandonment. After a careful study of the record we are of opinion the evidence did not satisfactorily show the presence of either ele *251 ment. The most that can he said for that evidence was that religions services at times languished, at spells was discontinued and was then resumed. The fact of resumption itself suffocates the idea of an intent to abandon. There was some testimony that defendant used the hack yard of the church premises to garden for a season or so, and one season stored potatoes in the-, church. He was janitor while the Universalists were in control, had the key and what he did on his own initiative in making a wareroom of the edifice may tend to show desecration hy him, hut does not show abandonment of the pious use hy owners. Shortly before the Universalists sold to the Methodists, they moved the Bible, organ, pulpit, hell and most of the benches to a church they controlled in a neighboring village. On the heels of that denuding act, they conveyed to the Methodists hy a deed couched in terms not only precluding the idea of abandonment hut reconsecrated the church to religious services. Witness the following clause: “In trust that said premises shall he used, kept and maintained and disposed of as •a place for divine worship,” etc.

The trial-court found against defendant on the question of abandonment; there was testimony sustaining that finding. With a law case in that fix, we are hound hy his finding on the fact. (Donaldson Bond and Stock Company v. Houck, 213 Mo. l. c. 426-7.] With abandonment eliminated, there can he no question hut what section 1886, supra, avoids the applies tion of any Statute of Limitations.

The trial court rightly so ruled.

(c) It is faintly argued (or suggested) that the Boyd deed to the Presbyterians should he construed to mean that the property must always he used hy that particular congregation of the Old School Presbyterian Church and that any use of the premises hy some other congregation would he a violation of the trust imposed hy the deed. But is not that an exceedingly *252 narrow and sour view? No authority is cited to sustain it, and if.there had been we would hesitate long before following it. In what just sense would it be an abandonment of a pious use to have one religious denomination take over by purchase the church edifice of another? Are not all Christian churches, whatever their peculiar tenets of mere creed, at bottom devoted to the same pious use — the cure of souls? Mr. BiNNey's definition of a charitable use which courts are fond of using, used by him in his argument in Vidal v. Philadelphia ( 43 U. S. 127 ) is: “And whatever is given for the love of G-od or for the love of a neighbor in the catholic and universal sense, given from those motives and to these ends, free from the stain and taint of every condition that is personal, private or selfish, is a gift for charitable uses.” There are cases in which that definition has been held too restrictive, but we know of none holding that a grant coming within that definition would not raise a charitable use. This court has given a broader definition (Missouri Historical Society v. Academy of Science, 94 Mo. l. c. 466) viz.: “Any gift not inconsistent with existing laws,which is promotive of science or tends to the education, enlightenment, benefit, or amelioration of the condition of mankind, or the diffusion of useful knowledge, or is a public convenience, is a charity.”

In the light of the scope and intendment of such definitions, how could it be justly ruled that the mere transfer of title and the custody of a church of one Christian denomination to another is an abandonment of a pious use? Any Christian church is but a hospital for souls. A curate is but a physician to souls (a cure). So far as this court can see all churches have that end in view as their raison d’etre.

Finally, we recur to the question whether this defendant can make the point at all. Mark, those who made the grant do not complain'; those who received it are standing on it and rest content (vide, St. Louis *253 Public Schools v. Risley, 28 Mo. l. c. 419, arguendo); this is not a proceeding in equity to regulate the misuse of a charity, and by what right does a stranger to the- grant suggest its invalidity? Is that question not res inter alios acta as to him? So, under the proof, as a member of the Universalist Church he enjoyed the charitable benefits of the grant and it comes with ill gTace from him to now impugn it. None of these suggested questions are argued in briefs and consequently they are reserved.

III. Bid the court err in finding that the strip in dispute was not conveyed by, nor ivas it within the calls of, the •deeds in defendaoit’s chain of titlef

We think not. In the first place the conveyances under which defendant .holds are junior conveyances to the original grant to the P'resbyterians. Defendant purchased what remained of the Boyd acre after the seventy feet were conveyed off of the southwest end, and the conveyances in his chain refer to the Presbyterian deed and, in terms, excepted the church tract therefrom. In the next place, the chief (if not the whole) force of defendant’s claim rests on the Statute of limitations and not on a grant by deed. Moreover, on defendant’s theory the side of the church building is on the division line between the seventy feet and the residue of the acre. On plaintiffs ’ theory the little strip in dispute lies between the church building and defendant’s grant. In this condition of things, the surveyor of Pike county, Beauchamp, made a survey. 'The deeds in both chains of title call for corner stones, courses, distances, etc. He testified he found those stones and ran his lines in accordance with the calls of the deeds. He testified his survey was correct and based on plats, conveyances, corner stones of former ■surveys, etc. He found, and so testified, that the disputed strip lies within the description in plaintiffs’ •chain of title and not within that in defendant’s. He *254 was examined in connection with a plat which is not reproduced in this record. His testimony relates to a lettering on that plat indicating the distances,, courses, corner stones, beginnings, endings, etc., mentioned by him. It is now insisted that his cross-examination established the inaccuracy of his survey. The laboring oar was on defendant to impugn the official survey. [Carter v. Spracklin, 246 Mo. 116 .] But absent the plat concerning which he testified and the lettering to which he referred, it is impossible to say that defendant’s contention is correct, for much of the testimony is meaningless without the plat and letters. As the impossible excuses persons, so it excuses judges. Some of the precepts of the law (of its very bones and framework) are: No one is bound to do what is impossible. [2 Bou. 116.] Impossibility is an excuse in law. (Impotentia excusat legem — Coke, Litt. 29a.) We have enough to do, to do what we can, not what we can’t.

The point is ruled against defendant.

IV. Of error in interpreting the deed from the Presbyterians to the Universalists.

As developed in appellant’s brief and argument error in this assignment hinges on the proposition that under that deed there was a break in the pious use. The idea seems to be that the grant in the Presbyterian deed was to “The Universalist General Convention, a corporation existing under the laws of the State of New York.”

The deed being silent on the business character of that corporation and there being no reference in it whereby it can be seen on its face that the grant was for a pious use, we are asked to hold, as a matter of law, that it was a grant to a use not pious. The inference being that with such a break in the use, the title itself fails and plaintiffs must be cast in a strictly legal action of ejectment. But we shall not so hold. *255 "When the Universalist General Convention subsequently conveyed title to the Methodists, it, at the first chance it had to speak on the point, described itself as a religions corporation. We take its word for it, absent countervailing proof. • So, the proof is that the Universalists when they acquired title actually used the edifice for church purposes and that defendant had charge of it on behalf of that denomination of Christians. Do not acts interpret words? Not only so, but, absent proof to the contrary, as here, we would not be willing to hold (against the indications in the name of the corporation) that it was not an instrumentality of the Universalist Church and was seized of the property to the use of that denomination. The presumption would be, in the first instance, that the Presbyterians would not intend to break the pious use by their conveyance. Surely defendant does not want us to rule (as a matter of law and without any proof) that the faith of that branch of the Christian Church is not a Christian o,r pious faith, or that their churches are not dedicated to a pious use. Learned counsel, taking us into their confidence, assure us that the Universalist faith “is a beautiful faith.” If necessary, we would be willing to rule that it was a comfortable faith, and, if we were permitted to express a judicial hope, it would be the hope that it may turn out to be a true one in the great Day of Final Accounts; for does not a very good book say we are all miserable sinners?

We pause to ask: May a mere earthly court (the which we admit we are) go out of its way to repudiate the sunny theological dogma, much doubted by some stout polemics, viz., that every man will be finally-saved and dwell forever with the felicitous? No! Emphatically, no! Angels and Ministers of Grace defend us! So the melancholy Dane exclaimed (when startled by a well-known apparition) and so say we. We say it in the form of a pious exclamation, because *256 sometimes an exclamation is as good ás a discourse, and let it go at that. Why should we decide the point when we have no jurisdiction of the subject-matter? Says Coke soberly (Coke, Litt. 232b): “There be three kind of unhappy men. He that hath knowledge, and teacheth not. He that teach eth, and liveth not thereafter. He that knoweth not, and doth not enquire to understand.” But that pronouncement is too broad as a rule regulating judicial discourse. Indeed, getting unanimity of opinion In questions of religious faith in the decision of cases, has not been so easy as to invite a wide play of unnecessary exposition in ghostly matters. Agreeable thereto the inquisitive scholar may find abundant grounds in Boyles v. Roberts, 222 Mo. 613 , and State v. Railroad, 239- Mo. 196. [q v.]

Y. Of the deed from the Universalists to the Methodists.

The substance of the objection made to that deed (split into specifications in appellant’s brief) is that its acknowledgment is bad, reading:-

State of Minnesota, County of Hennepin, ss.

On this 25th day of October, 1905, personally came before me, a notary public in and for the county and State aforesaid, the above named Henry W. Rugg and G. L. Dem-arest, personally known to me to be respectively the chairman of the Board of Trustees of the TJniversalist General Convention, and the secretary thereof, and the officers they represent themselves to be, and acknowledge to me that they signed the foregoing instrument in behalf of the TJni-versalist General Convention and as chairman of the Board of Trustees and secretary for the uses and purposes therein mentioned.

In witness whereof I have hereunto set my hand and seal, this day and year written.

The testimonium clause of the deed and the signatures thereto run thus:

*257 In witness whereof the chairman of the Board of Trustees of the said Universalist General Convention and the secretary thereof, have hereunto set their hands, and seal of said corporation, the 25th day of October, 1905.

Henry W. Rugg,

Chairman of Board of Trustee's.

(Corporate Seal.)

G. L. Demarest, Secretary.

To that deed the corporation seal was affixed, as indicated. A mere glance shqws that the certificate of acknowledgment does not conform to the form the statutes say “may be used” in acknowledging corporate deeds. [R. S. 1909, Sec. 2799.] But he'has read that statute to little purpose who concludes that the statutory form is necessary to a good acknowledge ment. The language of the section in that particular is not mandatory hut permissive. It does not say the form must or shall be used, hut that it “may he used.” In the exposition of that statute it has been held that the acknowledgment to a corporate deed, if good before the statute was passed, would be good after it was passed. [Huse v. Ames, 104 Mo. l. c. 102-3.] We look, then, to all related statutes and to the exposition given them by appellate courts. There are cognate sections prescribing how a corporation may hold and can convey real estate, and what the certificate of acknowledgment must show. Comparing the mandatory requirements of section 2799 with sections 2790' and 3001 — all strictly in pari materia — it will be seen that the' certificate of acknowledgment complies substantially with the requirements of those sections.

In St. Louis Public Schools v. Risley, 28 Mo. l. c. 419, it was ruled that when the common seal of a, corporation appears to be affixed to an instrument and the signatures of the proper officers are proved, courts are to presume that the officers did not exceed their authority and that when an act is within the powers of a‘ corporation, and its existence is witnessed" by *258 an instrument clothed with the formalities requisite to hind it, there is no hardship in the rule-which imposes on one objecting to its validity the necessity of showing that it was without the assent necessary to its existence. The logic of that holding precludes the necessity of showing corporate assent, or the order of a hoard of directors, in the first instance.

In Perry v. Price, 1 Mo. l. c. 649, it is ruled that a corporation being an.invisible body, it cannot manifest its intention in its deed by any personal act or oral discourse and speaks only by its common seal. The logic of that ruling stresses the use of the corporate seal. Though private seals are abolished, yet the use of a Corporate seal on a corpoiate deed remains an essential. [R. S. 1909, Sec. 2773.]

In City of Kansas v. Railroad, 77 Mo. l. c. 185, a doctrine of the Risley case, supra, was reaffirmed to the effect that in aid of a certificate of acknowledgment, reference may be had to the instrument itself or any part of it; and thait it was the policy of the law to uphold certificates when substance is found and not to suffer conveyances, o.r the proof of them, to he defeated by technical or unsubstantial objections.

In Eppright v. Nickerson, 78 Mo. l. c. 485, et seq., will be found an acknowledgment of a corporate deed, less substantial than the one in this case, which was held good.

In Railroad v. City of St. Louis, 66 Mo. l. c. 247, may be found an apposite pronouncement, viz.: “As the'one company'had the right to sell, and the other to purchase, it follows that the deed, under the seal of the corporation and signed by the proper officers of the company, is prima facie evidence that the officers'did not exceed their authority, and if the assent of the stockholders to such conveyance was not had, it-devolved upon the defendants to show that fact.’* The logic of that ruling is to simply invoke the car- *259 dihal maxim that things are presumed to be rightly-done. [Parks v. Hartwell, 240 Mo. l. c. 546.]

So, Thompson, J., in Missouri Fire Clay Works v. Ellison, 30 Mo. App. l. c. 72, lays down this proposition: “Authority on the part of the president and secretary to execute a deed for the corporation need not be affirmatively shown by a party claiming under the deed, but, in the absence of evidence to the contrary, such authority is presumed.” [See Musser v. Johnson, 42 Mo. 74 , and Shewalter v. Pirner, 55 Mo. 218, arguendo. ]

. The signatures of the officers are sufficiently attested by the certificate in question; the assent of the directors will be assumed under the doctrine of the cases cited, and a corporate seal attached to the deed is of substance in determining the sufficiency of the acknowledgment as to corporate intent.

We have not undertaken to state the specifications of,the objections to this acknowledgment seriatim. It is sufficient to say that all of them are disposed of against appellant in the foregoing discussion.

The point is ruled against defendant.

With this ruling, the cause is determined in favor of plaintiffs. Let the judgment be affirmed.

All concur, Graves, P. J., in result.