
    Alexander, &c. vs Slavens, &c.
    Appeal from the Mercer Circuit.
    Chancery.
    
      Case 97.
    Case stated,
    
      Trusts. Charities. Bills of review. Liens. Parlies.
    
    July 17.
   Jvdue¿Simpson

delivered the opinion of the Court.

Several years since, sundry subscribers promised to pay to Joel P. Williams and four other individuals, the sums of money annexed to their names, for the purpose of purchasing a lot of ground in the town of Harrods-burg, and erecting thereon a suitable building for religious worship. They constituted and appointed Williams and the other four individuals to actas trustees, authorizing them to make such disposition of the amount subscribed, as would best tend to accomplish this object. The house when built was to be subject to the following •regulations:

The Methodist Episcopal Church was to have the exclusive use and occupation of it, for public worship, two Sabbaths in every month, the days to be selected by that society, and published at the commencement of each •year.

For the balance of the time, it was to be free for the -use and occupation of every denomination of Christians who worshipped God in an orderly and peaceable manner.

The trustees, under this authority, purchased a lot of .ground in Harrodsburg, obtained the legal title thereto, and erected on it a brick house, which was used by the Methodist Church in that place, two Sabbaths in each •month, and by other religious denominations, when they chose to.do so, the balance of the time.

The first decree of the Circuit Court.

The fund raised by the subscription above mentioned, was insufficient to meet the expenditure necessarily incurred in the erection of the building. And even after contributions had been made to a considerable extent by others, a lien in favor of John W. Cardwell, to secure the payment of what remained due for work done upon the building, still existed on the property.

The Methodist Church became desirous of having a house of worship of their own, to be regulated and controlled by themselves. To aid them in the accomplishment of this design, they concluded to make sale of their interest in this property.

To effect this object, they appointed John Slavens and two other persons to act as a committee, and the Baptist Church in Harrodsburg appointed William Robertson and two other persons, on their part, to act for them; the one committee with full authority to sell, and the other to purchase, all the interest, rights and privileges to which the Methodist Church were entitled in the house and ground aforesaid.

Accordingly, on the 5th of November, 1840, an agreement was entered into by said committee, by which the Methodist Church sold to the Baptist Church, at the price of fourteen hundred dollars, all their interest in said property ; the parties stipulating, on the one side for the payment of the price in instalments, and on the other, for a conveyance of the interest sold, by deed of general warranty.

Part of the purchase money having been paid, a bill ¡a chancery was filed in the names of the individuals , , , composing the committee on the part ot the Baptist Church, in which the persons who acted as committee in making the sale for the Methodist Church, were alone made parties. An inability to make title, growing out of the nature of the property sold, was alledged, and a rescission of the contract asked on that ground. No answer having been filed, the bill was taken for confessed, and a decree rendered rescinding the contract, and ordering the defendants to repay the purchase money that had been paid to them.

The objectof this bill.

The’law of alienation of-estates.

'This bill was then filed, being a bill in the mature of ■& bill of review, in the names of the committee of the Methodist Church, and also.of the trustees who held the title to the property, insisting on a specific execution of the contract, and making the complainants in the former suit, as well as the trustees of the Baptist Church, defendants. They alledge that the persons made defendants in the first suit, conceiving that they had no interest, personally, in the controversy, neglected to answer. That the trustees were making preparations to answer, but the cause was heard, and the bill taken for confessed unexpectedly, and irregularly, the proper parties not having been brought before the Court. On hearing, the Circuit Court decreed a -specific execution of the contract, and a perpetual injunction of the previous decree. The defendants appealed from this decree, and have brought it to this Court for revision. The opposition to the decree, as well as to the compliance with the contract of purchase, seems to grow out of an honest conviction entertained by the Baptist Church, of a legal inability on the part of the Methodist Church, to invest the purchasers with the interest, rights and privileges to which they were entitled in the property.

Can the Methodist Church transfer this interest, or is it a privilege so peculiarly denominational as to'iender it inalienable ? The general principle is, that every inter, est in real property, be it of what nature or description it may, is the subject of alienation. The policy of the law of this country, is opposed to fettering estates. It favors the sale and transfer of them from hand to hand, and discourages all attempts to tie them up, and clog them with limitations or restrictions which tend to impair or destroy in them this quality.

The title to this lot of ground having been vested in trustees, to hold for certain purposes, their deed to the trustees of the Baptist Church certainly conveys the legal title. The Baptist Church, under the title so conveyed, are secure against any proceedings in the common law Courts to disturb their possession, or to deprive them of 5he use thus acquired.

A subscription was raised to build a house of public worship in Harrodsburg, and the fund committed to the management of certain trustees, purchase ground and build a house to be used by the Methodist Episcopal Church halfthe sabbaths in the month, the remaining Sabbaths by other denominations ; the same trustees were authorized to sell the house after a title was acquired, to another denomination, & vest the fund in another house lor the Metho-dist E. Church exclusively, and which was done. Held that the originalsubscribers could not complain, and that the trust was well performed, and the contract of sale executed.

Are they equally secured against the interposition of the Chancellor, or can any of the parties interested under the deed, object to the substitution of the Baptist Church to the rights and privileges that belonged under the deed, to the Methodist Church?

The solution of this question necessarily leads to an examination of the original object and design of the contributors, by whose charitable donations the lot was purchased, and the house of public worship erected. The main object contemplated by them, undoubtedly was, to secure a place of worship for a Methodist congregation in the town of Harrodsburg, securing at the same time, but subservient to the main design, a right to other religious societies to use the house, when not occupied by the Methodist. If the sale in question had been made to defeat, or had even a tendency to defeat this original design, it might be regarded as a breach of trust, and unauthorized. But, if on the contrary, it promotes this design, if the object contemplated by the original founders of this charitable trust is more effectually advanced, by means of this sale, and through its instrumentality, than it would otherwise be, they have no cause to complain of it. The money arising from the sale of this property, has been, so far as it has been collected, and the remainder of it is to be, appropriated to the erection of a large and commodious house in the town of Harrodsburg, dedicated to the worship of God, and belonging exclusively to the Methodist. The contributors to this fund, so far as they desired to advance the Methodist cause, or to promote the convenience of the members of the Methodist Church in the town of Harrodsburg, must be presumed to favor a project which aids so essentially in éffectuating their design. And as they evidently desired to promote the cause of religion, and to encourage other religious denominations to use the house for the purpose of public worship, this part of their design is also advanced by this arrangement. The house being no longer used by the Methodist, it can be occupied wholly by others. Every object that the donors contemplated, or desired to accomplish, will be attained, and so far as they are concerned, this disposition cannot be considered otherwise than as entirely consistent with a provident administration of the fund for the benefit and promotion of the original design entertained by them.’

The want of propel’ parties is-good ground for Sling a bill of review. (Milford’s Pleading,, 92)

Neither the members of the piesent Methodist congregation, or the succeeding members of that Church in the town of Harrodsburg, even could they be supposed capable of making the effort, would be permitted by the Chancellor, in violation of good faith, and a solemn contract on their part, to assert any claim to the property. The privileges of other religious denominations are enlarged and extended by the arrangement, and they could not complain of that which operates to their advantage instead of their injury.

It thus appears that no available objection to this disposition of the property, can be presented from any quarter. By it the Baptist Church are invested with all the rights and privileges held by the Methodist Church. There is no impediment to their enjoyment, growing out of the qualification annexed to the occupancy, requiring an annual notice to be given of the Sabbaths selected for their exclusive use. The property will be held by them subject to the same restrictions and limitations it was under, in the hands of their vendors. They, however, can hereafter act in their own name, and it will be as effectual as was the action of the Methodist Episcopal Church in its name, during the time it was the owner of the property.

Does the first decree between some of these parties preclude the Court from the specific enforcement of this contract ? It cannot have this effect. The contract itself shows that the individuals in whose name it was made, were not acting for themselves. They acted as committees, representing their respective Churches. They were in fact mere agents, the Churches for whom they acted, were the principals. The trustees then, holding the property for the Methodist Church were clearly necessary parties to the bill filed for a rescission of the contract. The want of proper parties is a sufficient cause for a bill of review, where, as in this instance it appears from the record, that persons substantially interested in the result were not made parties, This authorized the Court to open the decree. Having done so, it was and equitable to decree a specific execution of the contract.

No. person is-Bound-by a decree affecting his interest to which he was not a party..

One' Holding aKenupon property, who unites in a conveyance thereofto a third person, thereby waives His lien.

If a decree is made against persons having no interest at all in the matter in dispute, or not such an interest as was sufficient to render the decree against them binding upon some person claiming the same or a similar interest, relief may be obtained against error in the decree, by a bill in the nature of a bill of review. (Mitford's pleadings, 92, and the cases put by-way of illustration.)

This principle establishes the propriety of the individuals who made- the contract, and those who acted as trustees, and held the legal title to the property, joining a>s complainants in the bill filed to obtain relief against this decree, and to enforce a compliance with the terms of the contract. It also manifests the propriety of making the individuals who acted as a committee on behalf of the Baptist Chuich in making the contract, as well as those who were- acting in- the capacity of trustees for that Church, defendants to the bill. The trustees being the persons who were the proper representatives of the interests of the Church, had a right to apply to a Court of Equity for a specific execution of the agreement. If the previous decree could be regarded as forming an obstacle to the relief they sought, they were justified by their position to assail it. Not being parties, however, they were not bound by it, and if no error had appeared in the record, still they could have maintained an original bill for the same purpose for which this has been prosecti. ted, not being affected in any degree by a proceeding to which they were not parties, and to which no persons authorized to represent them had been made parties.

John W. Cardwell having joined in the deed to the trustees of the Baptist Church, and having expressly transfered and released all the interest which he had in the property individually, his lien on-it no longer exists, and cannot be hereafter asserted to the prejudice of hrs vendees.

We have not deemed it necessary to notice the act of the Legislature of this State, authorizing the sale and eon-vejiance of this property. We have considered it-as vendible, from its nature and character, and the disposition made of it, as entirely consistent with the views and object entertained by the original contributors.

Harlan fy Craddock for appellants; Robertson McKee for appellees.

Neither have we called to our aid, the extraordinary powers sometimes assumed by Courts of Equity, in disposing of charities by which the trust is executed, even where express directions have been given by the founder of the charity, in a mode not at all consistent with, or pursuant to his directions. Nor do we consider it necessary to intimate at this time, what the decision of this Court would be in a case of that kind. In this case, the sale is for the benefit of the charity. It promotes the design of the founders. It is not inconsistent with their views, either expressed or implied, in relation to its destined application, and consequently no legal or equitable objection to it exists.

Wherefore, the decree of the Circuit Court must be affirmed.

Wilson for appellant; McHenry and Hadan $/■ Craddock for appellees.

Cales fy Lindsey and Loughborough for plaintiff; Harlan fy Craddock, McHenry and Duncan for defendant.

Cates fy Lindsey and J. C. Walker for appellant; Harlan $• Craddock for appellee.  