
    CONVEYANCE OF LAND FOR BURIAL PURPOSES.
    [Circuit Court of Hamilton County.]
    The Methodist Episcopal Church of Cincinnati et al v. James N. Gamble.
    Decided, February, 1904.
    
      Deed — For a Valuable Consideration — Conveying Land in Trust for Burial Purposes — Is a Conveyance Absolute — Subsequent Diversion of the Property to Other Uses.
    
    1. A deed to church trustees, conveying for a valuable consideration certain land “in trust for a place of burial, and for the use of the aforesaid church, and for any other purpose for the church aforesaid, and for none other,” is not based on any condition precedent, and vests in the church a fee simple estate, with no right of revision of forfeiture to the grantor in any event.
    2 The abandonment of the ground for burial purposes at a date long subsequent, and its conveyance to certain college trustees for college purposes, carried the right on the part of the college, to sell, mortgage or convey the premises in any manner for the best interests of the college, subject only to the duties imposed by the rights of owners of lots in that portion of the land devoted to the burial of the dead.
    
      James N. Gamble brought his action in the Court of Common Pleas of Hamilton County against the plaintiffs in error to quiet his. title to real estate in the city of Cincinnati. The plaintiff in error by answer and cross-petition, set forth matters of title claiming that the property had reverted to it, and praying that the defendant in error be decreed to hold said title as trustee for its benefit, to which answer and cross-petition James N. Gamble’s demurrer was sustained and his title quieted.
    The answer and cross-petition averred the following facts: A conveyance of said lands from Bernard and wife by warranty deed dated January 11, 1826, to certain trustees of the Methodist Episcopal Church of Cincinnati, in consideration of $550 “in trust for a place of burial and for the use of the aforesaid * * * church and for any other purpose for the church aforesaid, and for none other”; the habendum clause provided, “To have and to hold * # * to the only proper use and behoof of the aforesaid * # * trustees in trust for the Methodist Episcopal Church of Cincinnati, and their successors in office, for a burial place for the use of the aforesaid church and for other purposes for the benefit of said church.”
    The act of the Legislature passed March 27, 1861 (O. L., Vol. 58, p. 159), reciting that by ordinance of the city of Cincinnati, burial upon said lands was prohibited and empowering the trustees of said church to sell said real estate, and in their discretion to apply the proceeds for the use of the Wesleyan Female College of Cincinnati; on condition that should said college ever cease to exist as an institution, of said church, the whole invested property should revert to the said church trustees to be by them held according to the terms of the original trust. And by the second section of said act it imposed the duty upon the trustees of the church to properly remove the bodies buried therein and the tombstones to another suitable burial place.
    The deed dated June 10, 1862, to said college conveyed in the words: “Do hereby grant, bargain and sell and convey to the said The Cincinnati Wesleyan Female College, its successors and assigns forever”; and specifying “This conveyance, however, is made subject to all encumbrances, if any, and to the duties imposed, upon the grantors herein by the second section of said act of the Legislature of Ohio passed March 27, 1861,” and in the habendum clause, “To have and to hold the same to the only proper behoof of the said The Cincinnati Wesleyan Female College, its successors and assigns forever, subject to the duties and encumbrances aforesaid.”
    The answer and cross-petition further averred proceedings in the said court for the sale of portions of said lands, and investment of the proceeds in the erection and equipment of a building for said college; the giving of a- mortgage by it upon the lands in controversy; the foreclosure and sale under said mortgage by decree in court; the reorganization of said college; the purchase of said property; its encumbrance by mortgage to raise funds to carry out said educational enterprise; the foreclosure of said second mortgage, and the purchase of the property by Mr. Gamble, in which foreclosure proceedings, however, the said Methodist Episcopal Church of Cincinnati was not a party.
    Swing, J.; Jelke, J., and Giffen, J., concur.
   James N. Gamble brought his action in the Court of Common Pleas of Hamilton County against the plaintiffs in error to quiet his title to certain real estate situate in the city of Cincinnati. The case was heard in said court and a decree was granted the plaintiff as prayed for. This action is prosecuted in this court to reverse this judgment.

We are of the opinion that the deed of January 11th, 1826, by Bernard and wife to Benjamin Mason and others, trustees of the Methodist Episcopal Church of Cincinnati, vested in said trustees a fee simple estate with no right of reversion or forfeiture to Bernard in any event. It was for a valuable consideration and not on any condition precedent, and while it says it is in trust for burial purposes, it also says “for any other purposes for the benefit of said church.” The purposes for which it was to be used and sold was for the determination of said church by its proper authorities.

We do not see that the act of the Legislature passed March 27, 1861, added anything to or took away any right which had been granted in this deed, and it certainly did not attempt to take away from the church the interest that had been granted to it by the deed of Bernard. This would have been beyond the power of the Legislature. "What effect section two of said act may have had as to lot owners in that portion of the land devoted to the burial of the dead, does not arise in this case and need not be considered, as said lot owners are not asserting any rights here.

Wm. G. Roberts and David Davis, for plaintiff in error.

Walter L. Granger and M. L. Buchwalter, for defendant in error.

Whatever right the Methodist Episcopal Church of Cincinnati had in this real estate was conveyed by deed dated June 20th, 1862, to the Cincinnati Wesleyan Female College and its successors and assigns forever, subject to the incumbrances and the duties imposed by the second section of the act of 1862 in regard to lot owners, none of which are involved here. This right carried with it the power to sell, mortgage and convey these premises in any manner deemed best for its interests, and subject to the right of said church to see that the college was controlled by the church and in its interests. Said college borrowed money and having given a mortgage on the premises, such action was had in foreclosure proceedings that the interest of said college was sold to the Cincinnati Wesleyan College. This college also gave a mortgage and this mortgage was foreclosed and James N. Gamble became the purchaser.

We are unable to see any defect in his title; certainly whatever right defendants had passed from them long ago, and the judgment should be affirmed.  