Rayner v. Nugent

Ritchie, J., delivered the opinion of the Court. The question presented by this appeal is, whether or not the right of burial in the property in question, at one time enjoyed by certain lot-holders, has been determined ? In expressing the opinion that such right has been terminated, it follows that the order of ratification appealed from was, in our judgment, properly passed. The property was conveyed to the Reformed Presbyterian Church of Baltimore by Robert Oliver by deed dated the 15th of July, 1828.

By this deed the ground was conveyed in fee, and without any declaration of use or trust whatever. The church seems, however, from the use to which it was dedicated, to have acquired it as a place of burial. ⁵¹⁸ Certificates were issued in the following form, to some, one hundred and forty-one lot-holders: “ Received from-fifteen dollars, in payment for one lot in the burial ground of the Reformed Presbyterian congregation, to be used only as a burial, place, and' subject to the rules adopted by the board of trustees. “Vergus Johnston, “Secretary.” The corporation, in the course of time and before its conveyance to John Nugent, determined to abandon the use of the ground as a cemetery and to dispose of it. About twelve of the lot-holders were paid back the consideration upon which the certificates were issued, and re-interred their own dead elsewhere. The rest of the lot-holders have not been paid back, and their certificates are still outstanding; but at the time of the sale to Nu-gent, in 1867, the bodies buried in their lots were taken up and re-interred in another cemetery.

No objection -seems to have been made to the removal of these bodies, and the fact that, so many of the certificates are uncollected is .due probably to the distant period at which they were issued. No claim to the right of burial seems to have been made at or since the time of the conveyance of the ground to Nugent; and the possibility of the assertion of such a claim does not appear to rest upon-any demand or intimation coming from the lot-holders, who apparently have acquiesced in the abandonment of the cemetery, but springs solely from a spirit of precaution in the present purchaser, who would guard against such a contingency, however improbable. The title in fee which the church received having been duly conveyed by deed to Nugent, it is only left to inquire whether there is anything in the character of the certificate issued to the lot-holders that can defeat or qualify the estate thus acquired by Nugent. It has been frequently held that even when the right of burial in the property of a religious society is acquired ⁵¹⁹ by a formal deed, no title vests in the freehold, and at most only an easement is created.

But where the instrument is a simple certificate, not under seal acknowledged and recorded, it has been decided by this Court, among others, it will not operate to grant an