
    *Allen & als. v. Paul & als.
    January Term, 1874,
    Richmond.
    Unlawful Detainer.—By two deeds a lot of ground was conveyed to certain persons by name and their successors, to be held in trust for the Methodist Episcopal Church of Petersburg. A house of worship, called the Union-Street Methodist church, was built upon this lot, in which this church worshipped until 1842, when they built a house of worship on Washington street in the city, and in 1844 they resolved that the Union-Street church should be appropriated to the use of the colored congregation; which was constituted of persons who were members of the Methodist Episcopal church of Petersburg. These continued to worship there, and to be represented at the quarterly conference held at the Washington-Street church, until 1865, when they connected themselves with the African Methodist Episcopal Zion church. After this change was made, in the year 1866, the then trustees of the Methodist Episcopal church property, who were the regularly constituted successors of the original trustees, agreed with the persons who, according to the rules and discipline of Zion church, were then the trustees and ■official authorities of said congregation, as part ■of Zion church, that until the said property should be required for the use of the Methodist Episcopal Church South, the said first trustees would permit said trustees and congregation to occupy the same as a place of worship without rent, they paying insurance and repairs; and to this the said trustees and congregation agreed; and they held the said property on these terms, until 1871, without claiming any other right thereto. In 1871, the trustees of the colored congregation resigned, and others were elected; and then the judge of the Circuit court of Petersburg made an order appointing the persons elected trustees of said church, in whom the legal title to the land owned by said congregation should be ^vested. And these trustees from that time claimed the premises and the legal title thereto. The trustees of the property thereupon demanded possession of it, which was refused; and they brought this proceeding of unlawful detainer. Held:
    1. Same—Adverse Possession.—The defendants, or their predecessors, having been put into possession of the premises by the plaintiffs, or their predecessors, and having acknowledged the title of the latter, the possession of the former is the possession of the latter, until the former, as such tenants, by some act disclaim to hold of the latter as their landlords.
    2. Same—Same.—The defendant cannot set up any right or title adverse to the plaintiffs, unless they prove that they disclaimed to hold of them, or bona Jide abandoned possession of the premises, or asserted and claimed an adverse right to the premises, with notice thereof to the plaintiffs or their predecessors, three years before the institution of the suit. And iiuwre, if the mere disclaiming the landlord’s title and claiming to hold in fee for three years, is sufficient to defeat the plaintiff’s recovery.
    3. Same-Same — Notice.—The defendants having disclaimed to hold as tenants of the plaintiffs, and claimed to hold the premises in fee, no notice to quit was necessary to entitle the plaintiffs to proceed immediately to recover the property.
    4. Same—Same.—The plaintiffs, as the regularly appointed successors of the original trustees in the deeds conveying the property, may maintain the action to recover the possession of the church building against the defendants, who claim to be the trustees of the A. M. E. Zion church in Peters-burg, and to be invested with the title to the property belonging to said church; and as such to be in possession of the property in controversy.
    5. Same—Who Hay Bring.—It is immaterial to the support of the action, whether the plaintiffs acquired any personal ownership in the property by the deeds; it not being competent for the defendants, who claim to hold as successors of the plaintiffs’ tenants, to deny the plaintiffs’ title.
    
      6. Same—Trustees—Title.-—Although the order of the court was legal and was binding so far as it constituted the defendants trustees, and the regularity and validity of this order, or the said appointment *of the defendants as trustees, cannot be enquired into in this suit, yet the said order does not vest in them the legal title to the property for the time being, or for an instant, unless the congregation which they represent are the owners of it. And the predecessors of the defendants having acknowledged the title of the plaintiffs, and held under them, the defendant claiming through them, as their sucessors, cannot deny the the plaintiffs’ title.
    7. Same—Adverse Possession.—That the defendants and those under whom they claim have held possession of the premises for more than three years, will not defeat the plaintiffs’ action, unless such possession was adversary.
    8. Same—Same.—The resolution of 1844 implies that the title and ownership of the property is retained by the Methodist Episcopal Church, and the use of it only given to the colored congregation, which the owners had at any time the right to recall.
    This was a proceeding* of unlawful detainer in the Corporation court of Petersburg-, instituted by D’Arcy Paul and others ag*ainst Jame's Allen and others, to recover the possession of a lot and building’s thereon called “the Union street Methodist church.” Upon the trial of the case, it appeared that by the deed executed in August, 1818, a part of the lot had been conveyed to certain persons styled trustees of the Methodist Episcopal church in the Town of Petersburg*, and to the survivors of them and their successors, to be held for the uses and purposes of the said church, either for a place of worship or for any other purpose to which the said chuch should direct it to be appropriated.
    By another deed executed in 1829, the other part of said lot was conveyed to the then trustees of the Methodist Episcopal church in the town of Petersburg, and the survivors of them and their successors, for the same uses and purposes1 contained in the first deed. And it appeared that the plaintiffs were the successors of the '^original grantees, appointed according to the forms of the Methodist Episcopal church.
    In 1842 the church that had worshipped and conducted their quarterly conference at this church, built a house of' worship on Washington street, in the same .town, and removed to that house, where they worshipped and held-their quarterly conference; and there being a large number of colored members of that church, by a resolution of the conference, in February 1844, the house on Union street was appropriated to the use of the colored congregation; and they worshipped there from 1842 to 1865, and were represented at the quarterly conference held at Washington street church by the stationed preacher sent to said congregation by the Virginia Conference of the Methodist church, and the trustees who held the property.
    It appears further, .that in-1865 all the colored members worshipping at Union-Street church connected themselves with the African Methodist Episcopal Zion church; and assumed the name, and adopted and submitted to the discipline and government of that church, and became part thereof. And since that time they have received their preachers from the conference of said Zion church.
    After this change was made, in the year 1866, the plaintiffs agreed with the persons, who according to the rules and discipline of said Zion church, were then the trustees and official authorities of said congregation, as part of Zion church, that until the said property should be required for the use of the Methodist Episcopal Church South, the plaintiffs would permit the said trustees and congregation to occupy said property as a place of worship, without rent, they paying only the costs of repairs and insurance during their occupancy ; and’ the said trustees and officials agreed to hold the said property of the plaintiff’s on these terms ; and said trustees and officers *did thereafter pay the costs of insurance and repairs, getting the consent of the plaintiffs before making repairs and to an increase of insurance made in the year 1869 : and the persons who were trustees by election of said congregation from the year 1866 to the fall of the year 1871, held the Union-Street property of the plaintiffs, and with their consent on the terms aforesaid, without claiming any other right or title thereto.
    About the month of September 1871, a controversy arose in the Union-Street church, in consequence of which the trustees herein-before mentioned, resigned, and the defendants were elected as trustees of said congregation. And on the 24th of November 1871, the following order was made by the Circuit court of Petersburg:
    On the motion of the proper authorities of the congregation of the Union-Street A. M. E. Zion church, in the city of Petersburg, the court doth appoint James Allen, &c., naming the defendants, trustees of said church, in whom the legal title to the land owned by said congregation shall be vested.
    And from that time the defendants claimed the premises in controversy and the legal title thereto, adversely to the plaintiffs and as owners of the fee simple thereof : of which the plaintiffs were informed on the 10th of December 1871 ; and immediately thereafter they demanded possession of the property, and took steps towards the institution of this suit.
    It further appeared that the congregation by whom the defendants were elected trustees, and who at the time of the trial worshipped in said Union street church, is the same congregation that began to worship is said Union street church in 1842, as aforesaid, without other changes than those resulting from natural and ordinary ^causes, and the changes hereinbefore stated as having occurred in 1865.
    After the evidence was introduced the plaintiffs asked the court to instruct the jury as follows :
    “If the jury believe, from the evidence, that the defendants, or those under whom they claim, were put into possession of the premises in controversy by the plaintiffs, or their predecessors, trustees, or tenants of said plaintiffs, or their predecessors, as landlords, the possession of the defendants, with the consent of said landlords, is to be deemed the possession of said landlords, until such tenants, by some act, disclaim to hold of their said landlords, as tenants, and full notice of such disclaimer be given to the landlords.”
    “If the jury believe, from the evidence, that the defendants, or those under whom they claim, were put into possession of the premises in controversy by the plaintiffs or their predecessors, trustees, as tenants of said plaintiffs, or their predecessors, as landlords, then the defendants will not be permitted, in this suit, to setup any title or right of possession adverse to that of the plaintiffs ; unless the defendants shall prove that they or their predecessors disclaimed to hold of their said landlords, or bona fide abandoned possession of the premises, or asserted and claimed an adverse right to the premises, with notice thereof to the plaintiffs, or their predecessors, three years before the institution of this suit.”
    “If the jury believe, from the evidence, that the defendants, or those under whom they claim, were put into possession of the premises in controversy by the plaintiffs, or their predecessors, trustees, as tenants of said plaintiffs, as landlords ; and that the defendants have, within three years before the institution of this suit, set their said landlords at defiance, and done any act disclaiming *to hold of them, as tenants, or claimed to hold the premises in fee, no notice to-quit is necessary, and the defendants are liable to be proceeded against in this form of proceeding immediately.”
    And .the defendants objected to said instructions.
    And the defendants, by counsel, asked the court to instruct the jury as follows:
    
      First instruction. “That the deeds conveyed the property in controversy, for the use of the congregation of the Methodist church, in the town of Petersburg, and that neither the original trustees named in said deeds, nor any successors of theirs, as trustees, acquired any personal ownership or right of possession to the said property ; nor can they maintain this action to recover possession of said church edifice from the congregation actually worshiping therein.”
    Second instruction. “That the church edifice in question belongs to the local congregation worshiping therein, and not to the church at large ; and that the various changes in the name of the church congregation worshiping in the property in question do not affect either the title to the property or the right to occupy the same ; and that no trustee can maintain this form of action against the Methodist church congregation actually occupying it.”
    Third instruction. “That the order of the Circuit court of the city of Petersburg, dated the 21st of November 1871, appointing the defendants in this suit trustees of the Union-Street A. M. E. Zion church, is a legal and binding order, and vests the legal title for the time being, and for the uses mentioned in said deeds, in these defendants ; and that neither the regularity or validity of the said order, or the appointment of these defendants, as trustees thereunder, can be inquired of in *this suit; nor can these defendants be removed from their trusteeship, nor be dispossessed of the property in controversy by any proceeding in this suit.”
    Fourth instruction. “That James Allen and the other defendants are the legal trustees of the colored Methodist congregation working on Union street, in the town of Petersburg, in the church property described in this suit.”
    Fifth instruction. “That if the jury believe, from the evidence in this case, that the trustees appointed by the Union-Street Methodist church congregation, have held possession of the property in question for the use of the congregation for more than three years, and until these defendants were appointed, then their possession would toll the possession of these defendants, and constitute an uninterrupted possession.”
    Sixth instruction. “That if the jury believe, from the evidence, that the property in controversy was held by the congregation which now holds it. for three years next preceding the commencement of this suit, then the plaintiffs are not entitled to recover.”
    Seventh instruction. “That the resolution adopted by the board of trustees of Washington-Street church, of which these plaintiffs are the successors, dated February 8th, 1844, appropriated the property in controversy to the use of the colored congregation worshiping therein ; and if the jury believe, from the testimony, that the congregation now worshiping there is the same in succession with that worshiping there at the date of the resolution, then they must find for the defendants.”
    Eighth instruction. “That the question whether the congregation now worshiping in the property in controversy holds to the same faith and doctrine, or adheres to the same church government, as it did in 1842, cannot be enquired into in this action.”
    "*Ninth instruction. “That the direction by Allen, one of the defendants, to the sexton, to close the church on the morning of the 10th of December 1871, as testified in this case, did not bind the church congregation, nor the majority of his co-trustees ; nor did it change or affect the possession or right of possession to the church property, unless it is shown that he acted by their authority.”
    Tenth instruction. “That the plaintiffs in this case are not entitled to recover the property in question from the defendants in this .action of unlawful detainer.”
    And the plaintiffs objected to said instructions.
    And the court having heard the arguments of counsel, gave the jury the instructions asked for by the plaintiffs, and refused to give the instructions asked for by the defendants.
    To which opinions and rulings of the court giving the instructionsasked for by the plaintiffs, and refusing the instruction asked for by the defendants in manner and form aforesaid, the defendants, by counsel, excepted.
    The jury found a verdict for the plaintiffs for the premises in controversy ; and the defendants moved for a new trial, which was refused; and they excepted, and applied to this court for a supersedeas; which was awarded.
    Wells, for the appellants.
    John Eyon, for the appellees.
    
      
      Unlawful Detainer.—See Olinger v. Shepherd, 12 Gratt. 462; Norfolk City v. Cooke, 27 Gratt. 438; Power v. Tazewells, 25 Gratt. 786; Pannill v. Coles, 81 Va. 380; Frazier v. Va. Military Institute, 81 Va. 59; Davis v. Mayo, 82 Va. 97; Pettit v. Cowherd, 83 Va. 20, 1 S. E. Rep. 392; Mears v. Dexter, 86 Va. 828, 11 S. E. Rep. 538. See also, Board of Education v. Crawford, 14 W. Va. 790. and Va. Code 1887, ch. 123.
    
    
      
      Unlawful Detainer—Adverse Possession.—See monographic on “Adverse Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
   Anderson, J.,

delivered the opinion of the court.

This suit was instituted by a summons against James Allen and others, the plaintiffs in error, to answer the complaint of D’Arcy Paul and others, who are described “trustees of the ‘Methodist Episcopal Church South,’ *'in Petersburg, Virginiathat the said defendants are in possession, and unlawfully withhold from the plaintiffs a certain lot or parcel of land, with three brick tenements thereon, commonly called “the Union-street Methodist church,” situate in Petersburg, &c. There was a verdict for the plaintiffs, “that the defendants unlawfully detain from the plaintiffs the whole of the premises described in the within writ;” which the defendants moved the court to set aside, upon the ground that it was contrary to law and the evidence. The court overruled the motion, and gave judgment for the plaintiffs. To which ruling of the court the defendants excepted ; and the facts proved are certified by the court. The defendants also excepted, in the progress of the trial, to two other rulings of the court. The first was to the opinion of the court admitting certain deeds in evidence; and the second, to the giving certain instructions to the jury, on motion of the plaintiffs; and refusing to give the instructions moved by the defendants.

Prom the view which the court has taken of this cause, the question raised by the first bill of exceptions is wholly immaterial, and not necessary, therefore, to be considered or decided.

The hypothesis of all the instructions moved by the plaintiffs, and given by the court, is, that if the jury believe, from the evidence, that the defendants, or those under whom they claim, were put in possession of the premises by the plaintiffs, or their predecessors, and that the former, as tenants, acknowledged the title of the latter, as their landlords ; upon this hypothesis, three propositions are deduced: First—That the possession of the former, is the possession of the latter, until the former, as such tenants, by some act, disclaim to hold of the latter, as their landlords, and full notice thereof be given to the latter.

*Secondly. That in such case the defendants will not be permitted to set up any right or title adverse to the plaintiffs, unless they prove that they disclaimed to hold of them, Or bona fide abandoned possession of the premises, or asserted and claimed an adverse right to the premises, with notice thereof to the plaintiffs, or their predecessors, three years before the institution of this suit.

And, thirdly : If the said defendants have, within, three- .years before the institution of this suit, set their landlords at defiance, and done any act disclaiming to hold of them as tenants, or claimed to hold the premises in fee, then no notice to quit is necessary, and the defendants are liable to be proceeded against in this form of action immediately.

The doctrine of these instructions is, that the possession of the tenants is the possession of his landlord, and not adverse to it; and that a tenant will not be allowed to deny his landlord’s title. Thus far the instruction is in accordance with well established law. If it was conceding too much to say that the tenant might turn his possession to an adversary possession by disclaiming his landlord’s title, and claiming to hold in fee, it was not error to the prejudice of the defendants ; and it was surely not error against them to say, that unless that disclaimer was made three years before the institution of this proceeding it could be no bar to the plaintiff’s recovery ; and that, when the tenant had set his landlord’s title at defiance, and claimed to hold adversely to him, no notice to quit was necessary ; and he might be proceeded against in this form of action immediately.

The court is also of opinion that the first instruction propounded by the defendants was properly rejected by the court. There can be no doubt that this action could *be maintained by the plaintiffs against the defendants, who claimed to be the trustees of the African Methodist Episcopal-Zion church in Petersburg, and to be invested with the title to any property belonging to said church, and as such to be in possession of the property in controversy. And it was competent for the plaintiffs to institute this proceeding in their names, for the recovery of the possession, against the defendants, who claim to be the successors of the trustees of said church, who held as tenants of the plaintiffs, and through whom, and not adversely to whom, they acquired possession; the said first set of trustees having resigned and these being appointed to succeed them. And it is immaterial whether the plaintiffs acquired any personal ownership to the property in controversy by the conveyance referred to, it not being competent for the defendants, who claim to hold as the successors of their tenants, to deny the plaintiff’s title. It would be different, if they had acquired the possession under a claim of title adverse to those who held as tenants of the plaintiffs.

The court is of opinion, that the second instruction announces an abstract principle; and whether it be law or not, it is immaterial. Whether it is true or not, “that no trustees can maintain this form of action against the Methodist Church congregation actually occupying” the church property, the plaintiffs could maintain it, as lessors, against their tenants, as trustees of the congregation, who acknowledged their title, and their successors, and it was not competent for them to deny their title.

The third instruction is a mixture of truth and error. It is true that the order of the Circuit court of November 1871, appointing the defendants trustees, was legal, and it was binding so far as it constituted them trustees. Nor could the regularity or validity of said order, or the appointment of the defendants as trustees thereunder, *be inquired of in this suit; but the 'said order does not vest in them the-legal title to the property in controversy “for the time being,” or for a single instant, unless the congregation which they represent-are the owners of it. Only the legal title to the land owned by the congregation is vested in them by the terms of the order. The question, whether the property in controversy is owned by the said congregation, is not touched by the order. Consequently it is not true, that by reason of said order they cannot be dispossessed of the property in controversy by this proceeding. On the contrary,-their predecessors having acknowleged the title of plaintiffs, and held under them, it is not competent for the defendants claiming through them, and as their successors, to deny the plaintiffs’ title.

The fourth instruction announces a mixed proposition of law and fact, which was immaterial to the defence, and was not controverted.

The fifth instruction is true, if it means only to assert that there was a continued and unbroken -possession from their predecessors to the defendants ; but such continuity of possession could not avail the defendants unless it were an adverse possession held by-their predecessors, which is not asserted," and without which it is unmeaning, or an abstraction, and was properly refused.

The sixth instruction is not true, that the plaintiffs are not entitled to recover if the congregation held the property for three years before the commencement of this suit ; for they may have held it through their trustees as tenants of the plaintiffs. Nothing but an adverse holding by the congregation would bar the plaintiffs’ right of recovery.

The seventh instruction is predicated of the assumption, that the resolution referred to vests the title to the church property in controversy in the colored congregation ; *which is an error. The said resolution implies that the title and ownership of the property is retained by the Methodist Episcopal Church, and the use of it only given to the colored congregation, which the owners had at any time the right to recall.

The eighth instruction is an abstraction, which is wholly immaterial. The ninth is also immaterial. It matters not whether Allen had authority or not to close the church doors; the fact is certified by the court as proved, “That from and after that time (the 20th of November 1871) the defendants have claimed to hold the premises in controversy, and the legal title thereto, adversely to the plaintiffs, and as owners of the fee simple thereof.”

The tenth instruction, as propounded, would involve the whole case of law and fact, and was properly rejected by the court.

Finally, unless the verdict was a plain deviation from the law and evidence, the appellate tribunal ought not to disturb it. But in this case the court is of opinion, upon the facts certified, that the verdict of the jury is right, and does injustice to no one. It seems that there is a division in the colored congregation. A part of them adhere to the church to which the congregation belonged when the charity was bestowed. But the majority of the congregation have withdrawn from that church, and formed a connection with another ecclesiastical body, and have put themselves under its government, have set the owners of the property at defiance, and assert it to be theirs, and have refused to allow the ministers of the old church to occupy the pulpit. This is a perversion of the original purpose of those who bestowed the charity. The question is really which section of the colored congregation shall have the use and enjoyment of the church. It would seem to be right that *the owners of the property and bestowers of the charity should have the decision of that question. And such is the effect of the verdict. Whilst, therefore, it is the conclusion of law, it is in harmony with the claims of justice. Upon the whole, the court is of opinion that there is no error in the judgment of the Hustings court. Let it be affirmed.

’Judgment affirmed.  