The Clergyman's Hand-book of Law Part 7

*240.* _Land, Use, Rent Pews._-Where land was conveyed in trust to the bishop of a diocese and his successors for the erection of a church for the use of a congregation, the right to rent pews vested under the deed and laws of the Catholic Church in the parish priest and not in the trustees afterward elected, as the parish priest was the agent of the bishop.(430)

*241.* _Trustees, Sale in Perpetuity._-Without authority of law the trustees of a church can not make an absolute sale in perpetuity of a pew without any reservation of rent.(431) The sale of a pew in a church will be determined in a case according to the particular facts.(432)

*242.* _Pew, Right to Occupy, Conditions._-A grant of a church pew in perpetuity does not give the owner an absolute right of property as a grant of land in fee; but gives only a right to sit therein, although he may maintain an action in court for protection of his rights.(433) In Vermont a pewholder has only the right to occupy his seat during religious services and holds it subject to the superior right of the society owning the pew.(434) A condition in the deed to a pew that a holder about to leave the congregation shall offer it to the society for a certain price, is not invalid.(435) Where a pewholder held his pew by a certain agreement and after the church had been remodeled he bought a different pew, the conditions attached to the first pew did not apply to the last.(436) Pews owned by the occupant pa.s.s to the heirs as real estate instead of going to the executors as personal property in States where the t.i.tle is in the nature of the t.i.tle to real estate.(437)

*243.* _Tax, a.s.sessment._-A tax a.s.sessed upon the pew of a religious corporation in part for purposes not specifically named in a deed of the pew, which alone gives the power to make such an a.s.sessment and which strictly defines and limits such power, is invalid _in toto_.(438) The right to make an a.s.sessment on pews must be founded upon law, else it can not be enforced.(439) When a congregation sells pews at auction rent free for the purpose of building a church, it has no power thereafter to a.s.sess the pews for the salary of the minister.(440)

*244.* _Pewholders' Rights._-A pewholder has the exclusive right to occupy his pew when the house is used for the purpose for which it was erected; but he can not convert his pew to other purposes not contemplated.(441) If he has paid his pew-rent according to agreement, he is ent.i.tled to use his pew on all occasions when the house is occupied, even when it is open for purposes different from those mentioned in the conveyance thereof; and he has the right to exclude all others from his pew by fastening the door or otherwise, and any one who enters his pew knowing the facts, is a trespa.s.ser and liable to an action for damages.(442) The owner of a pew has no right to put an offensive covering thereon nor use his pew in any way to the annoyance of the congregation or not in keeping with the place and conditions. By placing anything offensive about his pew, he may be liable for maintaining a nuisance, and such offensive thing may be removed; but, as far as possible, it must be removed without damaging the pewholder's property.(443)

*245.* _Rebuilding, Remodeling._-An injunction was granted on the bill of pewholders, restraining the authorities of the church from pulling it down, as they were going to use the materials in the erection of a new church on a different site. On the answer, the injunction was dissolved on the ground that if the complainants had rights which would be violated, there was a remedy at law and that the nature and extent of the injury were not such as called for the interposition of a court of equity by injunction.(444) Where a parish abandons an old church and builds a new one it does not become liable to any pewholder for damages by reason thereof unless it has acted wantonly or intentionally to injure the pewholder.(445) But when it becomes necessary for the purpose of repairing or remodeling a church, to destroy old pews, a pew built by a member under contract with the church can not be removed or destroyed without compensation.(446) Pew rights are subject to the right of the parish to pull down and rebuild a church either as a matter of necessity or expediency, but in the latter case the owner of a pew is ent.i.tled to payment.(447) A pewholder has only the right to occupy his pew during public wors.h.i.+p, and when the church has become so out of repair that it can not be used for public wors.h.i.+p, the owner of a pew can recover only nominal damages for injuries to his pew.(448)

*246.* _Selling Pew on Execution._-In an action to recover the value of a pew sold at auction, the merits of the case will be tried according to the law of the land.(449) It is doubtful whether a pew in a church can be sold for private debts of the pewholder.(450) It depends somewhat upon the t.i.tle and State law of exemptions.(451) To render an attachment of a pew valid, it is not necessary for the officer to come in sight of the pew or even to enter the church.(452)

*247.* _Members, Pew._-Members of the congregation may be required to pay for a pew or sitting in the church, and where a priest ejected a member from the church because he would not rent a pew, he was sustained by the court.(453)

*248.* _Free Church, Seats, Lease._-The trustees of a free church may a.s.sign seats and forcibly remove one from a seat without authority.(454) Where a pew is real estate, a pewholder may acquire the right to it by prescription in the usual way.(455) Where pews are not rented and the members support the church by voluntary subscriptions, they have equal right to the occupancy of the pews. But where the church builds the pews and rents them, a man paying rent for a pew holds it under lease in the nature of a lease to real estate. However, he does not obtain all the rights of a lessee of land, and in many cases a rule of the church governs the holding of pews, which will be observed by the State courts.(456)

*249.* _Executors, Pew-Rent._-The executors of a pew owner are not bound to pay pew-rent accrued after the owner's death.

*250.* _Voting, Pew-Rent, Arrears._-Where a church is incorporated and by its charter or the laws of the State it has authority to make reasonable by-laws, a by-law which prohibits any person from voting whose pew-rent is in arrears for more than two years, is valid.(457)

CHAPTER XXI. PROPERTY

*251.* _Unincorporated, Trustee._-The question whether an unincorporated religious society may take a gift or devise, is determined by the law of domicile.(458) Generally an unincorporated religious a.s.sociation can not hold property in its a.s.sumed name, but it must be held by conveyance in trust to a trustee named.(459)

*252.* _Charter, By-Laws._-When the charter or by-laws of a church corporation provide that they may be altered, such changes may, after the execution and delivery of a deed, immediately adhere to the t.i.tle.(460)

*253.* _Suits, Corporation, Members._-Cases may occur in which the corporation in its corporate capacity, or the society in its collective capacity, may be a plaintiff or a defendant in a suit between it and one or more members of the religious society in their individual capacity or in their collective capacity, in a quasi-conspiracy or concerning other torturous acts, or a collective contract.(461)

*254.* _Deed, Court, t.i.tle._-A deed made in pursuance of an order of a court having jurisdiction pa.s.ses good t.i.tle.(462)

*255.* _Subscription, Lots._-Any one may convey t.i.tle to a church as his part of the subscription by merely marking it on a plat made by him, as lots donated to such church.(463)

*256.* _Misnomer, Ident.i.ty._-The misnomer of a religious society or corporation will not invalidate a mortgage where the ident.i.ty of the society can be clearly shown.(464)

*257.* _Adverse Possession, Color of t.i.tle._-A religious corporation may obtain t.i.tle to land by adverse possession. The length of such possession is determined by the laws of the State, the usual period being twenty years.(465) Unless the laws of the State require it, color of t.i.tle at the time of a.s.serting adverse possession need not be shown.(466)

*258.* _Sale, Restrictions._-In some States when not restricted by the laws of the organization the parish corporation may sell the premises in order to pay the church debts. However, it is not a common law right.(467)

*259.* _Deed._-A deed to "The Evangelical Order of Christians" was sufficiently definite for a valid conveyance.(468)

*260.* _Error._-A clerical error in the name of the grantee will not make a deed void. However, when such error has been discovered, it should be corrected.(469)

*261.* _Mortgage, Bishop, Debts._-The archbishop of a church to which property is bequeathed, can not mortgage it without authority from the church or under the law.(470) Also, the bishop of a diocese to whom land had been conveyed in trust for a particular congregation, could not execute a valid mortgage thereon to secure his own indebtedness.(471) But a religious society in the absence of prohibitionary legislation, has power to mortgage its property to secure its debts.(472)

*262.* _Deed, Trust, Fee._-A deed of land to a Catholic bishop and his heirs and a.s.signs forever in trust for a Catholic parish for the purpose of a free burial ground, gave the bishop an estate in fee.(473)

*263.* _Debts, Creditors._-A committee of a religious society authorized to sell lands to raise money to pay its general debts, is not authorized to execute a mortgage for the purpose of securing various creditors holding claims; and the defect in such mortgage is not cured by a vote at a subsequent meeting to which the committee made a report of its action.(474)

*264.* _Mortgage or Sale, Notice, Consent._-Whenever there is to be a mortgage or sale of the church property, if it is to be done by the corporation, it must be done strictly in accordance with the charter and laws of the corporation, and if those do not provide therefor, every member should receive a reasonable notice to attend a meeting of the congregation and the question should be submitted to such meeting and a vote taken thereon. If all the proceedings are regular and the proper officers (president and secretary) of the corporation be authorized to make a conveyance, it is good in law.(475) However, if the irregular acts of officers or members of a congregation are subsequently ratified in a lawful manner, they become binding.(476) When consent of the court is required, it must be obtained.(477)

*265.* _t.i.tle, Taxes, Judicial Notice._-If the t.i.tle is in the bishop in fee in accordance with church law it is not "owned by any religious a.s.sociation" and is liable for taxes. The laws of the Catholic Church are not the subject of judicial notice, but must be alleged and proved as any other fact.(478)

*266.* _t.i.tle, Diocese, Rule._-Where the t.i.tle to the property of the diocese was in the bishop for the use of the church and subsequently the diocese was incorporated, the bishop was not divested of t.i.tle and it was still necessary to have the property conveyed by deed.(479) In some other States, however, the contrary rule prevails.(480)

*267.* _Priest, Deed, Funds._-Where it was claimed that a priest purchased lands and took the deed in his own name and paid therefor with funds belonging to the congregation, the conveyance will not be decreed by the court only upon the clearest and most satisfactory evidence.(481)

*268.* _Monks, Missions, t.i.tle._-The fact that the monks or priests were at the head of the missions in California when it was acquired by the United States, does not prove that the Catholic Church had universal owners.h.i.+p of the property.(482) The acts of Congress giving the city of San Antonio authority to sell public lands, was intended, no doubt, to dispose of mission property, but it was held not to affect the Catholic Church, the t.i.tle to which had been confirmed by another act of Congress.(483)

*269.* _Texan Revolution, Land._-At the time of the Texan Revolution, a Catholic church held no real estate of perfect t.i.tle, but enjoyed only the use of the land that it possessed and continued so to occupy after the admission of Texas into the Union.(484)

*270.* _Priest, Agent, Deed._-The priest in charge of a congregation is the agent of the archbishop, and where the t.i.tle to the real estate is conveyed by absolute deed to the bishop, the congregation, against the protest of the priest and without obtaining leave from the bishop, has no right to tear down a church for the purpose of rebuilding or repairing it.(485) And a priest in charge of mission property may maintain in his name an action to recover its possession.(486)

*271.* _Devise, Uncertainty._-A devise of property "to the Roman Catholic Orphans" of a certain diocese, making the bishop of the diocese executor of the will and giving him power to sell the property and use the proceeds for the benefit of the Roman Catholic orphans, is void for uncertainty.(487)

*272.* _Donor, Ambiguous Provision._-The religious convictions of the donor may be shown for the purpose of construing an ambiguous provision of a deed or will.(488)

*273.* _Trust, Evidence._-Without any trust being declared in writing, parol evidence can not be allowed to prove that the Catholic Church and parsonage is held in trust for the congregation by the bishop of the diocese, notwithstanding that the moneys for purchasing the lands and putting up such buildings were collected by subscriptions and contributions made to the priest in charge under the law, usage, and polity of the Roman Catholic Church.(489) At common law land may be granted to pious uses before there is a grantee to take it. In the meantime, the t.i.tle is in abeyance.(490) Where the t.i.tle to parsonage lands is in the minister as a sole corporation, on his death the t.i.tle remains in abeyance until a successor is appointed.(491)

*274.* _Money, Control._-Money raised by a Catholic congregation for the purpose of building a church does not come under the absolute control of the bishop or priest, although put into the hands of the latter for safe keeping. It is subject to the control of the congregation, although the members of the congregation refused to obey the command of the bishop of the diocese to consolidate with another church to which the priest was removed.(492)

*275.* _Church, Building, Removing._-Where subscriptions were secured to build a church at a particular place as a memorial to a certain person, a congregation may be enjoined from tearing down the building and removing it to another place.(493) But a court of equity will not prevent the removal of a church where a majority of the congregation favors it, although a legal meeting had not been held to determine the matter.(494)

*276.* _Church, Use, Division._-A church guild that erected a building adjoining a church for parish purposes, with the a.s.sent of the congregation, can not deny the authority of the church and use the building for other purposes.(495) But if members are improperly excluded from the use of the church property they must appeal to the courts for redress and can not resort to acts of trespa.s.s to gain entrance into a church.(496) A court of equity will compel persons having charge of the temporalities of a church, whether incorporated or not, to faithfully perform their trust and to prevent the diversion of the property from its original purposes. The court will not interfere in strictly religious matters.(497)

*277.* _Spanish Territory._-When Alabama was a part of Spanish territory, a deed of land "to His Catholic Majesty for the purpose of building thereon a parochial church and dwelling-house for the officiating priest,"

the money being paid out of the royal treasury, did not const.i.tute the King of Spain a trustee for the church or transfer to the church in equity a t.i.tle to the lots.(498)

*278.* _Trust, Purposes, Doctrines._-When a conveyance of a lot is made to certain persons of a religious society and their successors in trust for religious purposes, all the members become beneficiaries in equal degree notwithstanding some of them may have contributed larger sums than others.(499) Land conveyed to a church for valuable consideration belongs to the church, whatever change may take place in its religious doctrines; and if a minority secedes on the ground that they are the ones who retain the original tenets of the church, they can not take with them either the whole or pro rata share of the church property.(500)

*279.* _Control, Revenues._-The trustees of a corporation of a church or of a religious society have entire control over the revenues of such body.(501)

*280.* _Leave to Purchase, t.i.tle, Canons of the Church._-A congregation wanted to buy a church and priest's house, but the archbishop refused leave to purchase, but granted permission to keep the premises for religious purposes for a time. The members formed a society and bought and took t.i.tle in the name of the "Lithuanian Benefit Society of St. Anthony."

Then the archbishop wrote them a letter requiring the deed of the premises to be put in his name, which the congregation refused to do. A part of the congregation brought a suit in equity to enforce the transfer from the society to the archbishop. The court held that if the congregation was under the church and acknowledged its authority, the t.i.tle must be settled by the canons of the church; otherwise, the majority of the congregation, in a duly called meeting, should determine where the t.i.tle should be vested.(502)

*281.* _Cemetery, Authority._-When a congregation that had t.i.tle to a cemetery for many years entrusted the management and sale of the lots to the priest, he had thereby authority to create servitudes, such as alleys to lots, which become binding on the congregation and all third persons.(503)

*282.* _Real Estate, Purpose._-A church has no power to acquire and hold real estate for any purpose other than that of promoting the object of its creation, and any contract entered into for a purchase of real estate as a matter of speculation is _ultra vires_ and void.(504)

*283.* _Limitation, Lands._-A statute of the State prohibiting a religious society from holding more than twenty acres, applies to a single parish or congregation and not to the entire denomination when it consists of more than one congregation.(505)

*284.* _Conditions, Bequest, Deed, Time._-Where property has been devised for a particular purpose or on certain conditions attached thereto, the law may be invoked to protect the fund according to the bequest.(506) And where a deed contained a clause that the lots should never be sold nor used in any other way except for the benefit of a specified Protestant Church, although the deed contained no clause of forfeiture, when the congregation sold the property the grantor was ent.i.tled to have the deed set aside and the t.i.tle re-vested in himself.(507) And a grant made upon condition that a church be erected thereon, prevents the grantee from conveying it for other purposes without the consent of the grantor or his heirs.(508) But where a devise was made on condition that a church be built on the property within three years, the provision being a condition subsequent, a court has the right to extend the time.(509)