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 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 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 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

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

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 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 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 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 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

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 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, 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 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 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 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 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 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)

The Clergyman's Hand-book of Law: The Law of Church and Grave · 第 21 / 34 章