Second Universalist Society v. Dugan

Irving, J., delivered the opinion of the Court. This is a special case stated wherein all the facts are agreed upon and filed instead of a regular bill for specific performance. The only question for determination is whether the appellant has a good title to the property which the appellee has agreed to buy as and for “ a good marketable and sufficient” title. Upon the case stated that question was submitted to the Circuit Court of Baltimore City, with right to appeal reserved.

The Circuit ⁴⁶⁵ Court decided the title was not “ good and marketable,” and decreed that the case stated should be dismissed. From that decree appeal was taken. The real estate, which is the subject of controversy, is part of a tract of land which was conveyed in trust for the use of the Society of Christian people calling themselves Quakers, inhabiting and dwelling in and near the town and county of Baltimore. The appellant derives whatever title it has through two deeds conveying the property for the úse already stated.

One, which is described as Exhibit “ F,” is a deed from Andrew Stigar' to John Cornthwait and Gerard Hopkins, dated the nineteenth day of June, seventeen hundred and seventy-three. The consideration is “thirty-five pounds and four shillings,” and the conveyance is made to John Cornthwait and Gerard Hopkins, “their heirs, executors and administrators.” The habendum clause is “unto the said John Cornthwait and Gerard Hopkins, their heirs, executors, administrators or assigns, for and to the use of and purpose following, — to say, for the use of the Society of Christian people called'Quakers’inhabiting and dwelling in and near the Town and County of Baltimore in the Province aforesaid, to enclose and keep the same for a burying place to bury or inter those of the same society, that may from time to time depart this transitory life, and also to erect or build a meeting house for the same society of people, for the public worship of Almighty God, or such other improvements as they, the said society may think proper,” &c. To this deed was added a covenant of the grantor that he was seized in fee and had right to convey, and of warranty against all persons. The other deed marked “ G,” is from John Deaver to John Cornthwait and Gerard Hopkins and their heirs, executors and administrators, and is dated the twenty-first day of June, seventeen hundred and seventy-three.

The consideration of this deed is eighteen pounds and eleven ⁴⁶⁶ shillings. The liabend-um clause of this deed is in the following language,'-" unto the said John Cornthwait and Gerard Hopkins, their heirs,- executors, administrators, for and to the use of and purposes following, that is to say, for the use of the society of Christian people called Quakers, inhabiting and dwelling in and near the Town and County of Baltimore in the Province aforesaid, to enclose and keep the same for a burying place, to bury or inter those of the same society, that may from time to time depart this transitory life, and also to e#ect or build a meeting house for the same society for the public worship of Almighty God, and other business concerning the affairs of the said society of people called Quakers according to the custom and manner used and practiced by the said society and people called ‘ Quakers,’ and to and for no other use, intent or purpose whatsoever,” &c. To this is added a covenant that if the land is taken away “by due course of law,” the grantor and his heirs will “make good all damages the said John Cornthwait and Gerard Hopkins, théir heirs or the society, shall sustain by the recovery of the same aforesaid.” It appears that the title of John Deaver to the land conveyed by the immediately preceding deed was regarded as defective by reason of the non-recording of the deed to him, and on the ninth'day of March, (F?B6) seventeen hundred and eighty-six, the heirs of Thomas Sligh, the grantor by deed marked “H,” in the record, executed a deed of confirmation for the property to John Deaver, only son and heir-at-law of John Deaver, the grantor in deed marked “ G,” which deed of confirmation was “ to John Deaver, his heirs forever-, to the only proper use and behoof of the society of Christians known and distinguished by the title'of Friends, and now in possession of said societj', their successors and assigns forever.” To this is added a covenant of warranty against all persons claiming under them. ⁴⁶⁷ Bv chapter 20 of the Acts of seventeen hundred and ninety-three, the Legislature referring to and reciting the provision of the Bill of Eights, that no religious society should hold more than iivo acres of ground without the leave of the Legislature, (and reciting the application of the Quaker Society for an Act, making it lawful for them to hold the property,) made it lawful for the Society to hold the lots hereinbefore described. But that Act, by its second section, saved “to all and every person their several and respective rights;” and by its third section described the uses to which the property was to be put, and to which the Legislature assented, and added, “and for no other use or purpose whatever.” Subsequently to this Act assenting to the holding of ■this property by the Quakers, Gerard Hopkins, the last mentioned John Heaver, son and heir of the first named John Heaver, and divers other persons united in a deed to Gerard T. Hopkins, Isaac Tyson, John Bukehart and John Trimble of Isaac, their heirs and assigns forever, of all that property for the uses and purposes therein mentioned.

That deed was dated the fourth day of April, eighteen hundred, and the habendum clause was that all those persons named as trustees should hold the property “in trust for the use of the society of people called ‘ Quakers,’ according to the tenor of the Act of the General Assembly of Maryland, passed at November Session in the year seventeen hundred and ninety-three, entitled ‘an Act to coniirm the title of certain lots of ground to the society of people called “ Quakers” in Baltimore-town, v/hereon is their meeting house and burying ground,’ and for the uses and purposes in the said Act expressed and contained.” The Act of the General Assembly of 1852, chapter 268, after reciting in the preamble that John C. Turner, Isaac Tyson, Jr., William Eiley, John Brown, and Joseph Matthews, held certain lands for the purpose of a burying ⁴⁶⁸ ground and meeting-house by the Society of Friends or Quakers, appointed agreeably to the provisions of the Act of 1821, and that certain portions of the land were unfit for the object intended, proceeds to authorize the sale of such portions or the lease thereof, and the application of the proceeds to the enclosure and improvement of the remainder, and the purchase of other burying grounds-elsewhere. Under the supposed authority and protection of this Act, the trustees, on the 21st of June, 1855, leased the ground now involved to Charles W. Robach for ninety-nine years, renewable forever, reserving a yearly rent of one cent, with a covenant to convey the fee on request to him or his assigns. This lease 'Robach assigned to Jesse Marden, Ezra Whitman, and Edward W. Robinson, and their administrators or assigns, and on request ofRobach the fee was conveyed to them, and from them by mesne conveyances, the appellants have acquired their title. .- Now it is very clear that if these original deeds did not convey an indefeasible title, and that, in consequence of the diversion of the property from the uses to which it was conveyed, any reverter thereof would occur to the grantors and their heirs-at-law, th'en the Act of 1852 would not have the effect of divesting vested rights of individuals, and thus make the alienations pursuant to the Act of 1852 effectual in conferring a good and indefeasible title. The original conveyances, which have been recited, conveyed the property for certain specified uses of certain Christian people, and for no other use whatever.

The' Act of 1198, chapter 20, which assented to the holding- and use by such Christian denomination, confirmed its assent to a holding-for the uses named, and in express terms saved all individual rights, which would embrace the remaining rights of the grantors and their heirs, if they had any. A second Act of Assembly was passed for the benefit of the same Society and the same property, in ⁴⁶⁹ 1812, being chapter 158 of that year’s enactments. That Act seems, by its recitals, to have been made necessary by the'death of some of the trustees, and was for the purpose of naming others and vesting in them the property. It does so “ for the same uses and purposes as are mentioned” in the Act of 1193, chapter 20, “and for no other use or purpose whatsoever, saving to all and every person their several and respective rights.” The same reasons which induced the passage of this Act of 1812, appear to have caused the passage of the Act of 1821, chapter 130,.for the benefit of the same body of Christians and respecting the same property.

This appears by the preamble thereof. It seems also to