Trustees of the Zion Church v. Hilken

Page, J., delivered the opinion of the Court. This case involves the title of the appellants to certain property situated in Baltimore City. It appears that in 1793 Englehard Yeiser, one of the trustees of the Lutheran Congregation in Baltimore-Town, in consideration of 775 pounds current money conveyed the lot in question to John Shriver and others, trustees of the said Lutheran ° Congregation, in trust for the use and uses of the High German Lutheran inhabitants in Baltimore-Town forever, who do or shall hold to the said confession of faith, &c. Upon a part of the lot ¹⁷¹ a parsonage was erected and so occupied up to 1870; the residue was used as a garden surrounding the church hardby.

Under the provisions of the Act of 1802, ch. 111, the trustees of Zion Church in 1830 became a body corporate. No conveyance of the lot, however, was made to the corporation. The succession of trustees, not having been kept up, in 1882 Zion Church filed a bill in the Circuit Court for Baltimore City for the appointment of new trustees to hold the legal title of its real estate (which included this lot), and on the 28th December.of that year, that Court decreed that certain persons therein named, and their successors, should be trustees, invested with the legal title in said property, “to the same effect and intent as if they had been the original trustees, &c.” In March, 1896, Henry G. Hilken agreed in writing under seal to lend to the appellants (the survivors of the trustees appointed by said decree), $2$,000 upon the understanding that the latter were seized of a good and merchantable title, to be secured by mortgage, on the lot, executed by the appellants as trustees. Hilken refused to accept the mortgage and to make the loan, claiming the appellants’ title was not good and merchantable; wherefore this proceeding for a specific performance was begun.

The ground of the appellee’s objection is alleged, in his answer, to be that the appellants claim title under the deed from Yeiser, already mentioned, and under its provisions, if the property once ceased to be