Schmidt v. Hess

Decision Date31 October 1875
PartiesJOHN SCHMIDT, et al., Plaintiffs in Error, v. PHILIP HESS, et al., Defendants in Error.
CourtMissouri Supreme Court

Error to Cole County Circuit Court.

Lay & Belch, for Plaintiff in Error.

I. The specific intent of the donor, if it can be ascertained, will be enforced. (Kinska vs. Lutheran Church, 1 Sand. Ch., 439; Hoff. Ch., 202; Bowden vs. McLeod, 1 Edw., 588; First Const. Ch. vs. Cong. Soc., 23 Iowa, 567; Harmon vs. Drethen, 1 Spen. Eq., 87; Lawyer, et al. vs. Chipperly, 7 Paige, 281; Hosea vs. Jacobs, 98 Mass., 65; German Ref. Ch. vs. Comm., 3 Barr, 282, 1 Watts, 227, 1 W. & S., 9, 6 Barr, 201, 9 Barr, 321, 6 Wright, 503, 4 N. S. 653, 1 Kenan, 243; Keyser vs. Stansifer, 6 Ohio, 363; People vs. Steel, 2 Barb., 387; Baker vs. Tales, 16 Mass., 506; Wennebenner vs. Colder, 43 Penn. St., 244, 48 Penn. St., 20, Wright 12; Hullman vs. Honcomp, 5 Ohio St., 237, 14 Ohio St., 31, 16 Mass., 504, 50 Mo., 167; State, ex rel. Pittman, et al., vs. Adams, et al., 44 Mo., 571, 577; 2 Dresser, 431; Ang. Corp., 194; 16 Ohio, 583.)

These defendants do not pretend to be Lutheran in doctrine, or that they are any part of a Lutheran Church or congregation. They have withdrawn, and united with a different denomination--a distinct society formed in 1859.

On the other hand the members of the church to which the plaintiffs belong testified that they were all Lutherans. And there was no other denomination of Lutherans in the city. We also prove conclusively that they constitute the same Lutheran congregation in continuation, to which the donors, Routzong and wife, gave their adherence in their life-time, and up to their death.

H. B. Johnson, for Defendant in Error, cited, in argument, the following, among other authorities: Hartford vs. Wetherell, 3 Paige Chy., 304; Kriskern vs. Lutheran Churches, etc. 1 Sand. Ch., 430; Organ Meeting House vs. Seaford, 1 Del. Eq., 457; Keyser vs. Stansifer, 6 Ohio, 363; Attorney General vs. Pearson, 3 Meriv., 352, 395; People vs. Steele, 2 Barb, 397; Presb. Congr. vs. Johnson, 1 W. & S., 9; McGinnis vs. Watson, 5 Wright, 9; Luth. Cong. vs. St. Michael's Ev. Ch., 48 Penn. St., 20; Coit vs. Starkweather, 8 Conn., 289; Jackson vs. Goes, 13 Johns., 518; Powell vs. Biddle, 2 Dall., 70; Miller vs. Gable, 2 Denio, 492; Swed. Ev. Luth. Ch. vs. Shirer, 16 N. J. Eq., 457; McGinnis vs. Watson, 41 Penn. St., 16; Proc. Gen'l vs. Stone, 1 Hagg. Rep., 424; Hodg. Hist. Creeds; Dartmouth College vs. Woodward, 4 Wheat., 646; 3 Pet., 119.

SHERWOOD, Judge, delivered the opinion of the court.

This is a proceeding in the nature of a bill in equity, instituted in the Cole Circuit Court by plaintiffs as trustees of the Evangelical Lutheran Trinity Church, by which it is sought to have vested in themselves, as such trustees, the title to a certain parcel of ground situate in Jefferson City, as a place of interment for that church, in conformity, as it is claimed, to the deed of Christian Routzong, bearing date August 28, 1852, and to restrain the defendant, who are the trustees of the church known as the German Evangelical Central Congregation, and the members of such church, from the use of the ground thus conveyed, until a final hearing, etc., etc.

The deed of Routzong was delivered to his son-in-law, John Guenther, and was made to the “Lutheran Church,” and the parcel of ground hereby donated was granted for a burial ground in consideration of the respect entertained by the donor for said church.

Without adverting to the evidence in detail, it shows with very convincing and conclusive clearness that the church to which Routzong belonged was Lutheran in doctrine, that the distinguishing characteristic of that faith consists in accepting all that the Augsburg Confession teaches, and rejecting all that it rejects; that to the most of laymen this church is known and designated by no other name than the “Lutheran Church;” that to this church, although then unorganized, and to the believers in the Lutheran faith, Routzong and his children among the number, Rev. Mr. Kolb first preached, while the meetings were held at the house of John Guenther, Routzong's son-in-law, to whom, as before stated, the deed for the burial ground was delivered; that Mr. Kolb was succeeded in his ministrations to this congregation by Rev. Mr. Knaup, he by Rev. Mr. Mayer, he by Rev. Mr. Sandross, and he by the clergyman at present officiating, Rev. Mr. Thurow; that the names of all these ministers are on the list of the Missouri Synod, a strictly Lutheran organization; that the names of none of the ministers of the church to which defendants adhere are to be found on such list, or are recognized by the church to which plaintiffs belong; that it was the intention of the donor, Routzong, to give the burial ground to the church and congregation to which Mr. Kolb preached, and with which the donor and his children worshiped, and that that church which subsequently organized and built a brick house for worship below Zwinger's was the only Lutheran church then or now in Jefferson City; that “the church on the hill,” to which the defendants and their associates belonged, entertained theological views widely different from those entertained by the church to which plaintiffs belonged, and that the church to which defendant belonged was not organized and had no preacher until the year 1859, and he, the Rev. Mr. Reiger, did not pretend to be a Lutheran.

The answer of the defendants denied the chief allegations of the petition, and claimed that the deed was intended for the benefit of the church and congregation to which they belonged, and asked for affirmative relief in the form of a decree vesting the title to the premises in...

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