
    THOMPSON v. HICKEY.
    
      N. Y. Supreme Court, First Department; Special Term,
    June, 1880.
    Deed.—Mortgage.—Cemetery Lots.
    A conveyance, intended as security for the repayment of money loaned, is a mortgage, although it may be absolute in form.
    And its character as a mortgage is not lost by a sale of the grantee’s interest.
    The owner of a lot in Greenwood Cemetery cannot mortgage it after he has interred the dead of his family therein.
    Lantz ». Buckingham, 4 Lems. 484, distinguished.
    A mortgage of a cemetery lot is not authorized by L. 1850, c. 152, relative to Greenwood Cemetery.
    The mortgagor may maintain an action to prevent the mortgagee of such a lot from interfering with the bodies interred therein, and also to have the, mortgage and the several transfers thereof declared void and canceled, and the mortgagor’s name restored to the records of the cemetery as owner.*
    On adjudging a conveyance absolute in form to be a mortgage, the court will enjoin disturbance of the mortgagor’s possession until foreclosure, &c.
    Trial by the court.
    This action was brought by Andrew J. Thompson
    against William Hickey and others.
    The plaintiff borrowed a sum of money from the defendant Hickey, and at the same time plaintiff gave, as security, a conveyance of his lot in Greenwood Cemetery, in which the bodies of three of his children were buried. The conveyance was absolute in form. The defendant Hickey afterwards, without notice to the plaintiff, conveyed the lot to the defendant Farnham for the nominal consideration of $1, and on the same day Farnham conveyed it to the defendant Clark, for the consideration of $250 ; but part of this price was to be held back until the bodies of the plaintiff’s children should be removed. One of the defendants then • called on the plaintiff to remove the bodies of his children, with the threat that if the plaintiff did not remove them he would. The plaintiff then brought this action to restrain the threatened removal, and to have the several conveyances of the lot declared void, and his name'restored to the records of the cemetery as owner.
    
    
      - John T. MeGowan, for the plaintiff.
    
      Charles Bradshaw, for the defendants.
    
      
       See 7 Abb. New Cas. 122, and note. The decision in the Coppers’ case, there reported, was reversed on appeal at general term.
    
    
      
       The complaint was as follows:
      
        [Title of the Cause.]
      
      “The complaint of the plaintiff in this action shows:
      “ First. He alleges, on information and belief, that the Greenwood Cemetery is a corporation created and existing under and by virtue of an act of the Legislature of the State of Hew York, entitled, ‘ An act to incorporate the Greenwood Cemetery,’ passed April 18, 1838, and the several acts additional thereto, and amendatory thereof. That by said act the said Greenwood Cemetery was authorized to obtain, acquire, take and hold a tract of land within the city of Brooklyn, and to sell or otherwise dispose of such land, to be used exclusively as a cemetery, or a place for the burial of the dead.
      “Second. He alleges, on information and belief, that shortly after the passage of said act the said corporation did purchase, obtain, and acquire a large tract of land situate within the limits of said city of Brooklyn, and that the land so acquired and purchased has been for many years past, and now is, used by said corporation exclusively as a cemetery, or a place of burial of the dead.
      “Third. That in or about the month of July, 1863, the plaintiff became the purchaser of a quarter lot in said cemetery from the said corporation, and that he paid to said cemetery the price demanded and required; and thereupon, and on or about July 8, 1863, the said corporation, by an instrument in writing duly executed by said corporation, did sell and convey to plaintiff the said one-quarter lot situated in said cemetery, and which is known as lot No. 14,183 in "section 172.
      “That such purchase and conveyance was made by plaintiff for the sole and only purpose, and as a place for the burial of the dead of "plaintiff’s family. That shortly after the purchase and conveyance aforesaid, and in said year 1863, two interments were made in said "lot, viz., the dead bodies of two children of plaintiff and his wife, and they have since remained interred therein. He is informed and believes and therefore alleges that upon such purchase and conveyance and the interment of said 'bodies, the said lot thereafter became inalienable forever.
      “Fourth. That in or about the month of February, 1878, the "plaintiff borrowed from the defendant, William Hickey, the sum of $125, which was to be repaid on demand. That at the time of making such loan it was understood#and agreed between the plaintiff and said defendant Hickey, that interest for the use of said money so "loaned at the rate of seven percent, per annum, together with an additional sum or bonus of $25 to said Hickey, should be paid, and received by him for the use and forbearance of said money; and as collateral security for the payment of said loan, interest and bonus, " the plaintiff executed an instrument in writing, transferring the ownership of said burial lot in Greenwood Cemetery aforesai 1 to said defendant Hickey, or he consented to such transfer and c mveyance of said lot, in the office of said cemetery in the city of New York, before an officer thereof, and such transfer or conveyance was made.
      “Fifth. That in the month of September, 1879, the said defendant Hickey, without any notice whatever to the plaintiff that he intended to do so, sold and transferred the said burial plot, or pretended so to do, to the defendant Bela M. Farnham, for the nominal consideration of $1.- And on information and belief the plaintiff alleges that on or about September 30, 1879, the defendant Hickey did make a transfer of said burial plot to the defendant Farnham, in the office of said cemetery; and that thereupon, and on the same day, and in said office, the said defendant Farnham ■ did make some transfer or conveyance of said burial lot to the defendant Thomas Clark, and the defendants Hickey and Clark have given authority to the said de fendant Farnham to procure the removal of the bodies of plaintiff’s children, interred in said burial lot, to another and public grave in said cemetery.
      “ Sixth. The plaintiff, on information and belief, alleges that the said alleged transfers and conveyances from the defendant Hickey to the defendant Farnham, and from the defendant Farnham to the defendant Clark, and each of .them, was made without any consideration whatever, and solely for the purpose of cheating and defrauding the plaintiff out of the ownership of said burial plot, and that they have conspired together to effect that purpose. He is informed and believes that the said defendant, Thomas Clark, has made application to the said cemetery corporation for permission and authority to disinter the bodies of said children, and the said defendants, Hickey and Farnham, have joined in said application, and are assisting and pro*mot-ing the said defendant Clark in his attempt to remove said bodies and to deprive plaintiff of his possession and rights in and to said burial lot.
      “ Seventh. That the said defendant Hickey refused to accept and receive from plaintiff the amount actually due from him, for and on account of said loan, or to reconvey said burial lot to him, before the time of the alleged sale and transfer thereof to the said Farnham and Clark. That the defendants now demand from plaintiff, the sum of $150, and interest on the same from February 1,. 1878, and in default of such payment threaten to remove the bodies of plaintiff’s children, and to deprive him of his rights in said burial plot.
      “Eighth. The plaintiff further alleges that between the time of the purchase of said burial lot by him in the year 1868, and the present, he has expended large sums of money in caring for, beautifying, and protecting the said lot, and said lot became and is very valuable. That great and irreparable loss and injury will be done to the plaintiff by the defendants, unless they are restrained by the injunction order of this court from interfering with said burial lot, or removing or disinterring the bodies of plaintiff’s children buried therein.
      “ Wherefore the plaintiff demands judgment against the defendants as follows :
      “ 1. That the consideration for the transfer of said burial lot from the plaintiff to the defendant Hickey is usurious, and such transfer void.
      “3. That the transfer or conveyance of said burial lot to the defendant Hickey was not an absolute conveyance thereof by the plaintiff, but as collateral security for the payment of a loan of money made by said defendant Hickey to the plaintiff, upon a usmious and corrupt agreement for the payment of a greater rate of interest than is allowed by the laws of this State.
      “ 3. That the transfer or conveyance of said burial lot to the defendants Farnham and Clark, and each of them, is without consideration, fraudulent and void against the rights of the plaintiff.
      “ 4. That all the conveyances or transfers of said burial lot are void as against law and public policy.
      
        “ 5. That the defendants and each of them, their and each of their agents, attorneys and servants, be perpetually enjoined and restrained from in any manner whatever meddling or interfering with the burial lot Ho. 14,183 in section 173 of the Greenwood Cemetery in the city of Brooklyn, and from removing or attempting to remove from said lot the bodies interred therein, or either of them.
      “ And for such other and further relief, &c.”
    
   Van Vorst, J.

The evidence clearly enough shows that the conveyance made by the plaintiff to the defendant Hickey, of the burial plot, was intended as security only for the repayment of the moneys loaned ; and although it is absolute in form, it was a mortgage security only, which character it has not lost, and as such it must be considered (Horn v. Keteltas, 46 N. Y. 605).

The right of the plaintiff as mortgagor could not be divested by the private sale made by Hickey to Farnham, and by the latter to Clark (Lawrence v. Farmers’ Loan & Trust Co., 13 N. Y. 200). Neither Hickey nor his immediate grantee could give any better right or interest than they really took. Besides, Clark, when he was asked on the trial as to his knowledge of the original transaction between plaintiff and Hickey, and as to its being a loan of money, replied, “ in writing I never heard of it.” A fair implication arises from the qualification, that he had otherwise heard of it, and that would be sufficient to put-him upon inquiry. Hickey conveyed to Farnham for the nominal consideration of §1, and on the same day Farnham conveyed to Clark for the consideration of §225, but Clark held back part of the price until the bodies of the plaintiff’s children should be removed. The whole transaction between Hickey and the other defendants wears a suspicious appearance, which the evidence does not remove, and suggests a plan to deprive the plaintiff of the burial plot unjustly and-without notice. But I apprehend that there are sufficient reasons in law and equity to prevent the consummation of the wrong.

The Greenwood Cemetery Association was incorporated for the purpose of establishing a burial ground, and for this purpose it was authorized to acquire a tract of land within the limits of the city of Brooklyn. The corporation was authorized to sell the grounds in lots or plots, to be used exclusively as a place of burial of the dead (See the original act of April 18, 1839, and the several acts amending same). There does not appear in the charter of this corporation, in terms, any absolute restraint upon the power of voluntary alienation of a cemetery lot by an owner: Yet I am persuaded that when a person has taken a conveyance of a burial lot, and has made interments therein of the dead of his family, it is in such condi-, tion that it cannot be mortgaged to secure the payment of a debt or the return of money borrowed. Such an act is prohibited by the equity and true spirit of the statute. For, observe how careful the legislature has been to secure the sleep of the dead from disturbance. The cemetery itself is exempted from public taxation, and the lots or plots of ground when conveyed are declared to be exempt from assessment, and cannot be sold on execution, or be applied to the payment of debts under any insolvent law. And as no public road, street or avenue shall be laid out or opened over .the land, the same would seem to be absolutely secured .against invasion. A mortgage, equally with an execution upon a judgment, might in the end expose the lot for sale. And although the letter of -the charter under consideration is not so full, yet the legislature has clearly expressed its mind upon this precise subject in the provisions contained in chapter 133 of the Laws of 1847, entitled an act authorizing the incorporation of “rural cemeteries.” By section 11 of that act, it is provided that when plots or lots shall be transferred to individual holders, and after there shall have been an interment in a lot or plot so transferred to individual owners, such lot or plot, from the time of such interment, shall be forever thereafter inalienable, and shall, upon the death of the holder or proprietor thereof, descend to the heirs-at-law of such holder or proprietor, and to their heirs-at-law forever; and chapter 310 of the Laws of 1879 declares that it shall not be lawful to mortgage land used for cemetery purposes, or to apply it in payment of debts.

Legislation upon this subject has been in accord with the sentiments of humanity, and with the spirit of our civilization, and has shown a considerate regard for the sanctity of the burial-places of the dead. By the incorporation of cemeteries, and their preservation as such, it has secured an immunity from disturbance for the dead which could not be obtained through burials in church-yards, which were liable to be unsettled by the sale of the church property.

When the case of Lautz v. Buckingham was before Mr. Justice Brady at special term, he distinctly pronounced against the legality of a mortgage executed upon a cemetery lot by the proprietor thereof. He says, “regarding it in the light of a mortgage security, I think it is not to be sustained. It is against good morals, and therefore against the policy of the law, to encourage such instruments” (11 Abb. Pr. N. S. 64). It is true that the judgment of the special term was reversed at the general term (Lautz v. Buckingham, 4 Lans. 484). But it is to be borne in mind that in that case no interment had been made in the lot at the time the mortgage was given, and it may be that it might not be considered an offense, either against good morals, public policy, or against the spirit of the statute, to convey or mortgage a cemetery lot before an interment had been actually made therein. For such a sale or conveyance satisfactory reasons might possibly exist. A man might desire to change his lot for one larger or more eligible. I do not regard the act of April 5, 1850, as affecting the question we are now considering. It declares under what circumstances a lot is inalienable. It does not authorize a mortgage or a sale thereunder by implication even.

But that it is an offense against good morals to mortgage a small isolated plot of ground in a cemetery, dedicated exclusively, under the sanctions of the law, as a sanctuary for the dead of one’s family, and already consecrated by the ashes of one’s kindred, I am sure cannot be well questioned. Such a transaction is clearly a breach of the policy of the statute, is contrary to its equity, and is within the evils it was designed to cure, and our moral nature protests against it. As a consequence of such a transaction, we have here a stranger .calling upon a father to disinter his three children, who have been buried for a period of ten years in a cemetery lot, with a threat that if the parent will not, he himself will do "it. And suppose he carries his threat into execution, what then? Sepulture must, in the end, be had, and that, it is believed, the statute was intended to secure permanently, against disturbance from any such cause as is indicated by the mortgage in question.

The sentiments and feelings which people in a Christian State have for the dead, the law regards and respects, and however it may have been anterior to our legislation on the subject of cemeteries, the dead themselves now have rights, which are committed to the living to protect, and in doing which they obtain security for the undisturbed rest of their own remains.

In any view which may be taken of this subject I am sure that the defendant should be restrained from interfering with the children’s graves. If the conveyance executed by the plaintiff to Hickey, although it be in form absolute, is supposed to confer any present right, it must yield to the easement of the bodies already buried there, which should in no event be disturbed (Moreland v. Richardson, 22 Beav. 596; S. C., 24 Id. 33; First Presbyterian Church v. Second Presbyterian Church, 2 Brewster [Penn.] 372).

But, as has been already decided, the conveyance to Hickey was a mortgage security only, and until the plaintiff’s rights have been judicially ended through a proceeding in court his complete possession and control of the lot cannot be interfered with, and for that reason also the threatened acts should be restrained. And a suit in equity is a proper proceeding to secure such restraint.

In Kurtz v. Beatty (2 Pet. 566, 584) Judge Story says: “It is a case where no action at law could afford an adequate and complete remedy. The remedy must be sought, if at all, in the protecting power of a court of chancery, operating, by its injunction, to preserve the repose of the ashes of the dead and the religious sensibility of the living.”

Taking up dead bodies from the place where they have been -interred, without authority, is a misdemeanor at common law (4 Stephen Comm. 371; Reg. v. Twiss, 10 B. & S. 298; see also Paper of Mr. R. S. Guernsey, read before Medico-Legal Society, February 4, 1880, on the “ Law of Burial”).

But, in addition to relief, by injunction, I am of opinion that it should be adjudged, 'for the reasons above stated, that the transfer made by the plaintiff to Hickey of the cemetery lot, as security for a loan of money, was and is void, and that the subsequent transfers to the other defendants are also void, and that they should severally be delivered up to be canceled,: and that the plaintiff’s name should be restored to the records of Greenwood Cemetery as the owner of the lot.

The-loan of money made by Hickey to the plaintiff, it is urged on behalf of- the plaintiff, was usurious and-void, but the relief granted is not put upon that ground. And if Hickey or his assigns conclude that they have any legal claim for the recovery of the. money loaned they are at liberty to institute and prosecute an action for its recovery, to which the plaintiff,, notwithstanding this determination, may interpose any defense he may have. 
      
       See also Despard v. Walbridge, 15 N. Y. 374; Russell v. Southard, 13 How. U. S. 139; Fullerton v. McCurdy, 55 N. Y. 637; Campbell v. Dearborn, 109 Mass. 130; S. C., 12 Am. R. 671; Barrett v. Carter, 3 Lans. 68.
     
      
      
        L. 1850, o. 152, p. 316, entitled “An act further to amend an act entitled an act to incorporate Greenwood Cemetery," provides that—§ 1. “Any lot or lots hereafter to be conveyed by said corporation, may be so conveyed that upon such conveyance thereof, or after there shall have been an interment therein, such lot or lots shall be forever inalienable.” ....
      § 2. “ Any lot or lots heretofore conveyed by the said corporation, or which may hereafter be conveyed in the manner heretofore authorized, may be held and enjoyed in the manner authorized by the first section of this act, provided the same be signified and declared by any instrument in writing, or by any last will and testament duly made and executed by the holder or proprietor of such lot or lots for that purpose."
     