
    Selden and Others v. Overseers of the Poor of Loudoun.
    April, 1840,
    Richmond.
    (Absent Tuokbr, P.)
    Glebe Lands — What Sale by Overseers of Poor Valid -Case at Bar. — In 1773, a tract of land in L. county, purchased with money contributed by the members and parishioners of the church and parish of S. is conveyed to two persons, churchwardens of that parish, and their successors, “for the use and behoof of the present incumbent of the said parish, minister of the church of England, and his successors, incumbents of the said parish, forever.” In September 1827, the overseers of the poor of L. county enter upon the land and make sale of it, under authority of the act concerning the glebe lands, 1 Rev. Code, ch. 32b. Whereupon a bill in chancery is filed against the overseers, the purchaser from them, (who is in possession, but has not paid the purchase money), and the heirs of the original grantor, by W. S. and others, claiming to be the vestry and churchwardens, and T. J. claiming to be the minister and incumbent, elected and inducted in August 1827, of the said parish and the protestant episcopal church thereof, (the said W. S. and others suing also as individual members and parishioners, and on behalf of all the members and parishioners); setting forth the facts above *stated; insisting that the overseers of the poor acted without legal authority, and that so far as the said act concerning glebe.lands assumed to confer such authority, it was contrary to the constitution of the ÍTnited States, and void; and praying that the overseers and the purchaser from them be restrained from all further interference with the land, that the latter be decreed to surrender the same, and account for its profits to the plaintiff T. J. and that the heirs of the grantor be decreed to convey the said land, by a more effectual deed, to trustees for the benefit of the plaintiffs. On a demurrer to the bill, as not shewing any title of the plaintiffs to relief, the chancellor sustains the demurrer and dismisses the bill; and the court of appeals, following the decision in Turpin et al. v. Locket et al., 6 Call 113, affirm the decree.
    This was an appeal from a decree of the superior court of chancery holden at Winchester.
    The bill was filed in April 1828, in the said court, by Wilson Cary Selden and others, the vestry of the parish of Shel-burne in the county of Loudoun, and of the protestant episcopal church of the said parish, Wilson C. Selden and Henry Clag-get, churchwardens and trustees of the said parish and church, and Thomas Jackson, the minister and incumbent of the said parish and church, against David Lewis and others, the overseers of the poor of Loudoun county, John Aldridge, and the heirs of Joseph Combs; the said plaintiffs all suing in their own several and respective rights as officers and parishioners of the said parish and church, and as individual members and parishioners of the said church, and in the right and on behalf of all the other members and parishioners of the same church, by whom or by whose ancestors and predecessors the glebe lands of said parish and church were originally purchased and paid for.
    The bill stated that the vestry and churchwardens of the said parish had been regularly elected and appointed from the establishment thereof to the present time; that the plaintiffs, the present vestry and churchwardens, had been so elected and appointed, and that the *said Thomas Jackson was, and from his appointment and induction had been, the actual incumbent and officiating minister 'of the said parish and church :
    That the glebe land aforesaid was purchased by the churchwardens of the said parish .and church in the year 1773, from Joseph Combs and wife for the sum of ^400. and was conveyed to them and their successors, for the use of the ministers incumbent of the said parish and church and their successors:
    That the purchase money was made up by contributions from the members and parishioners at that time of the-said parish and church, and the glebe was purchased for the occupation and use of the minister and his successors, and for the benefit of the said members and parishioners and their successors:
    That the said land was not bestowed or granted to the said parish and church by the crown, nor held by them before the revolution under the crown, otherwise than the lands of all private purchasers were held under the crown; nor after the revolution was it held under the commonwealth, or by its bounty, nor was it bought with the public money, but held only under the said purchase and deed from Combs and wife:
    That no title to this land has ever vested in the commonwealth; but if from any defect in the deed, or from the want of capacity of the grantees or cestuis que trust to take, hold and enjoy in perpetual succession, the land did not thus pass in succession after the death of the original grantees, it reverted not to the commonwealth but to Combs the grantor to his heirs. But whether it then passed to the grantor and his heirs by reversion, or to the commonwealth by escheat, the estate thus acquired by reversion or escheat was a mere legal estate, subject to the equities and trusts created by the said deed:
    That Thomas Lewis and Craven Peyton, the churchwardens living at the time of the execution of the deed *from Combs and wife, and to whom the said land was immediately conveyed by that deed, have both been dead many years, and have been succeeded by other churchwardens from time to time appointed ; but the plaintiffs are advised that according to the form and technical effect of the language of the deed, the legal estate at the death of the said Lewis and Peyton did not pass to the churchwardens their successors, nor to their heirs, but reverted to the said Combs and his heirs:
    That Combs has long since been dead, and the plaintiffs have not been able to discover who are his heirs; but they believe, them to be resident within the United States, and ask that they be made defendants by name if discovered, or if not, by the description of the heirs of Joseph Combs:
    That in September 1827, the overseers of the poor for the county of Loudoun, under the pretence of authority conferred by two acts of the general assembly of Virginia, one passed on the 24th January 1799, the other on the 12th January 1802, entered upon the said glebe land and sold it to the defendant John Aldridge, who has wrongfully taken possession under the purchase, and • yet holds possession, enjoying the rents and profits thereof, though he has not paid the purchase money :
    That the said sale, entry and possession were without any authority of law, and operated to the great injury of the plain-till's; and as far as they were sanctioned by the said acts of assembly, those acts were contrary to the constitution of the United States, especially to that provision of the constitution which prohibits the states from passing ex post facto laws, or laws impairing the obligation of contracts, and were therefore void.
    They prayed that the said overseers and their successors and the said Aldridge be in joined from all further interference with the said glebe land, and that the latter be decreed to surrender the said land, and account for its rents and profits to the plaintiff Thomas Jackson, minister as aforesaid, and his successors; that the heirs of the said Combs be directed to convey the said land by a more effectual deed to trustees for the benefit of the complainants according to the intent of the deed from Combs and wife aforesaid; and for general relief.
    With the bill was exhibited “an extract from the records of the protestant episcopal church of Shelburne parish,” certified by the secretary of the vestry, importing that on the 3Íst of August 1827, the reverend Thomas Jackson, having been first duly elected, was legally inducted and installed as rector of that church.
    The deed from Cotnbs and wife was also exhibited. It bears date the 12th of November 1773, and conveys, for the consideration of ^400. a tract of 465 acres of land on the northwest fork of Goose creek in the county of Loudoun to Thomas Lewis and Craven Peyton, churchwardens of the parish of Shelburne in the said county, and their successors, churchwardens of the same parish, “to and for the only use and behoof of the present incumbent of the said parish, minister of the church of England, and his successors, incumbents of the said parish, forever,” with covenants of further assurance and warranty.
    The defendants demurred to the bill, shewing for cause of demurrer that the plaintiffs had not made such a case as entitled them to discovery or relief from or against the defendants, and no such discovery touching the matters in the bill could avail them, or entitle them to any relief.
    The cause was heard on the 27th of April 1830, when the demurrer was sustained by the court, and the bill dismissed with costs. 
    
    Prom which decree the plaintiffs appealed.
    
      The case was argued here, with great earnestness and ability, by
    Johnson for the appellants and J. Robertson for the appellees ; but the ground taken by the court in deciding the cause renders it unnecessary to report the argument.
    
      
      He decided the canse in the court of chancery.
    
    
      
       Tlie principal case is cited in Wambersie v. Orange Humane Society, 84 Va. 455, 5 S. E. Rep. 25.
    
    
      
      The elaborate opinion of the chancellor may be seen in Tucker's Commentaries, vol. 2, appendix.— Note in Original Edition.
    
   STANARD, J.

The main question is that which was involved in the case of Turpin & al. v. Locket & al., 6 Call 113, decided in 1804; and in that case the decision of chancellor Wythe, sustaining the validity of the acts of assembly dissolving the vestries and providing for the sale or other disposition of the glebe lands of the protestant episcopal church, was affirmed by an equal division of the judges of the court of appeals. Under those laws, sustained by that decision, the overseers of the poor, in the respective parishes where glebe lands were situated, proceeded to dispose of those lands as they became vacant, and under that authority almost all the glebe lands in the state were disposed of before the year 1830. If this authority was questioned in the courts of the commonwealth, except in the case in judgment, it is presumed it was upheld by the decisions of the intermediate courts, and those decisions were acquiesced in, as the case in judgment is the only one that has been brought up to the court of appeals, in which the validity of those laws was challenged. The case of Claughton v. Macnaughton, 2 Munf. 513, decided in 1811, did not require the court to pass on that question ; yet from the decision of the chancellor, affirmed by the court of appeals, an implication may be fairly made that neither of those courts thought the validity of those laws could be effectually controverted. It may be safely assumed, that from the date of the decision of the case of Turpin v. Locket, until 1830, when the constitution of the state was revised and amended in convention, there was a general acquiescence in that decision by the members and ministers of *the protestant episcopal church, and that the community at large, the legislature, and the courts, considered the validity and constitutionality of those laws established; that the ecclesiastical corporations of the protestant episcopal church were effectually dissolved, and the glebe lands liable to the dispositions prescribed by those laws. It is matter of history that almost all those lands have been disposed of under those laws, and acquired by purchasers, as may reasonably be presumed, in the confidence inspired by the acquiescence of the members and ministers of the church, and the opinions pervading the community, the legislature, and the judicial tribunals of the state, during the long time intervening between the decision of the case of Turpin v. Locket, and the revision of the constitution. During that period, one or more applications have been made to the legislature by one or more religious sects, for acts of incorporation, to enable them to hold and administer more conveniently for the religious objects of the petitioning sect, property to a limited amount, voluntarily contributed for those purposes. It [is well known that such applications encountered in the legislature the twofold objection of their incompatibility with the principles of religious freedom declared by the act of 1785, and of the inexpediency of exercising the power to create such corporation» though it were constitutional to do so; and that, under the influence of one or other of these objections, or of both combined, those applications were rejected by large majorities. Such was the state of things in 1829-30, when the constitution was under the revision of the convention ; a state of things well calculated to produce in that body (what doubtless was the case) a conviction that the corporations of the protestant episcopal church, and all the rights and incidents that pertained to them, were effectually dissolved or abrogated, and a grave doubt at least of constitutional power to create corporations of *or for any religious sect, when (as was done) the principles declared by the said act establishing religious freedom were incorporated in the new constitution as limitations of legislative power. In that convention, an attempt was made to incorporate a provision in the constitution which would have expressly reserved to the legislature a power “of incorporating by law the trustees or directors of any theological seminary, or other religious society or body of men created for charitable purposes or for the advancement of piety and learning, so as to protect them in the enjoyment of their property and immunities, in such case and under such regulations as the legislature might deem expedient and properbut such corporation at all times to be subject to be altered, remodeled or repealed at the discretion of the legislature. This proposition was opposed, and though the mover supposed that the legislature would, without such reservation, possess the power to grant such charters of incorporation, that was not assented to, and the proposition was resisted on the ground that no such power ought to be given or exercised, and was overruled by a very large majority. Without deciding or even considering the influence that the making and rejection of this proposition in the convention may have on the interpretation of the constitution in respect to the extent of the legislative power over the incorporations specified in the proposition, it may, be safely assumed that such a proposition would not have been rejected, had not the convention taken it for granted that the corporations of the protestant episcopal church were at an end. For if they still had legal existence, and were to continue (as the argument in this case must maintain, to entitle the appellants to success) intangible by legislative and even conventional power, then the only means of even approximating other religious sects to an equality of immunities would be to confer and exercise the power of giving them like ^corporate organization and privileges. Whatever may be the true interpretation of the constitution, with the material principles declared by the act establishing religious freedom forming a part of it, coupled with a rejection of the reservation of a qualified power to incorporate religious societies of charitable purposes or for the advancement of piety and learning, I do not doubt that in-corporations of religious sects, providing for church government of the members, and the election or appointment and institution of ministers, are without the scope of legislative power, and incompatible with the principles of the said act, now incorporated in the constitution. It is under these circumstances of long acquiescence in the laws aforesaid, the alienation of almost all the glebe lands, and ingrafting thereon of interests large, complex and multiform, the general assent to and confidence in the decision that warranted such alienation, and the action, during more than a quarter of a century, of the judiciary, legislature and convention, founded on that confidence, that the court is in this case called on to review and reverse the decision in the case of Turpin v. Locket. In such a case the injunction stare decisis is of most commanding authority, and challenges obedience from every judge who is not supported in his dissent by an unhesitating conviction that the decision from which he dissents is clearly erroneous. My examination of this case, so far from yielding such support to an opinion dissenting from the decision in the case of Turpin v. Locket, strongly inclines me to assent to it, and had I been one of the court which decided that case, my impression is that I should have concurred in the opinions that prevailed. But I do not mean to say that had the responsibility devolved on me of deciding that case, the question being then for the first time submitted to judicial decision, I should not have felt it my duty to subject the impression now avowed to a stricter scrutiny than I *have given it, nor do I mean to declare an un-doubting conviction that under such scrutiny it would have ripened into a judicial opinion. It suffices for this case, that such are my ascertained convictions in respect to the main question involved, as to make the rule stare decisis imperative on me, and of course to require me to affirm the decree.

PJEJR CURIAM, Decree affirmed.  