Presbyterian Church of James Island v. Pendarvis

• Citation: 86 S.E.2d 740,227 S.C. 50
• Decision Date: 06 April 1955
• Docket Number: No. 16988,16988
• Parties: The PRESBYTERIAN CHURCH OF JAMES ISLAND, Respondent, v. W. F. PENDARVIS, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 740

86 S.E.2d 740

227 S.C. 50

The PRESBYTERIAN CHURCH OF JAMES ISLAND, Respondent, v. W. F. PENDARVIS, Appellant.

No. 16988.

Supreme Court of South Carolina.

April 6, 1955.

William H. Grimball, Jr., Charleston, for appellant.

Waring & Brockinton, Charleston, for respondent.

OXNER, Justice.

This is an appeal from an order requiring appellant, W. F. Pendarvis, to specifically perform a contract to purchase from respondent, the Presbyterian Church of James Island, a corporation, Lot No. 131 in the Bay Front Subdivision on James Island, Charleston County. The lot mentioned is a part of a tract of land containing 100 acres which was subdivided in 1945. The question presented is whether respondent acquired good title to said 100 acre tract. Appellant is willing to comply with his contract if he can obtain a good and marketable title to the lot which he agreed to purchase, but says that the property is subject to the trust hereinafter set forth. The facts were stipulated and are undisputed. The controversy relates to the proper legal conclusions to be drawn therefrom.

By an indenture or deed of May 9, 1713, Captain Jonathan Drake, in consideration of 150 pounds paid by the members of the Presbyterian Church on James Island, conveyed the 100 acre tract involved in this controversy to John Wilkins, William Wilkins, John Hearn and George Rivers for the sole use and benefit of every Presbyterian minister chosen by the members of said church to be their pastor, 'for to reside, inhabit, possess and enjoy during such his Ministry'. It is stated in the habendum that said trustees are to hold such property for 'the use of all and every such Presbyterian Minister and successor which is or hereafter shall be nominated, elected and chosen by the persons who now are or hereafter shall be in communion with and members of the said Church on James Island or the major part of them there to inhabit, possess and enjoy during his or their continuance for his or their Ministry, and to none other use, trust or purpose whatsoever and it is intended, meant and agreed upon by and between the parties to these presents that to the end and intent that the lands and premises aforesaid may remain and continue in perpetual succession to every such Presbyterian Minister and his successor. * * *'

Provision was made in this instrument for filling vacancies upon the death of the trustees named therein. Those chosen to succeed them were to hold said property for the purposes and uses stated.

It clearly appears from the terms of this indenture that the members of the unincorporated society of Presbyterians on James Island furnished the consideration for said conveyance, selected the trustees and retained the power to appoint their successors, and reserved the right to adopt 'further covenants and conditions' to assure the possession and enjoyment of said property by their ministers.

It seems to be conceded that at the time said trust was established in 1713, it was not possible under existing law to incorporate this church. Doubtless the trust devise was then the most feasible method to accomplish the purposes stated in said instrument. Later, however, under the Constitution all denominations of Christian protestants were given equal religious and civil privileges and on petition to the Legislature allowed to incorporate. By Act adopted on March 17, 1785, 8 St. at L., page 127, respondent church, along with several other protestant churches therein named, was duly incorporated.

The surviving heirs of the original trustees, long since dead, are unknown. The record does not disclose whether any successor trustees were ever appointed. It appears that for a long number of years there was no occasion to provide a permanent manse or source of income as contemplated by the indenture of 1713, inasmuch as the ministers serving the church prior to 1796 were 'supplied' by the Charleston Presbytery. It seems that at least from 1796, the church has almost continuously been served by a minister. However, the record does not show prior to 1873 how the regularly elected pastors were maintained or where they resided. In 1873, the respondent church purchased a house at Secessionville which was used as a manse until sold in 1918.

The record is silent as to the use made of the 100 acre tract prior to 1871. A recorded instrument shows that this property, 'known as the parsonage', was on June 21, 1871 leased to H. B. Horlbeck for a term of five years at an annual rental of $504.00. The records of the historian of the church reveal that this tract was also known as the 'Bermuda Farm', and in 1875 was leased by the church for 99 years to J. C. Clark, who moved to Atlanta in 1885. Thereafter respondent leased the 100 acre tract for $450 per year, first to Elias Rivers and then to his son John Rivers, who occupied and farmed the property continuously until his death in 1941. The rents received were used by respondent for general church purposes.

The property first appears on the tax books of Charleston County in 1889. It was listed in the name of respondent and described as 'Parsonage Farm'--'100 acres and eight buildings'. It was continuously returned for taxation in a like manner until 1917. From that year until 1946 it was listed in the name of respondent and described simply as '100 acres, seven buildings.' All taxes were paid by respondent's treasurer out of general church funds.

In 1939 respondent sold one acre for $1,000 and used the proceeds to repair the church property. In 1945, the members of the church decided to sell the remaining 99 acres. It was subdivided and thereafter over 100 lots were sold and conveyed. From the proceeds of sale, amounting to approximately $60,000, $15,000 was expended in building an appropriate manse for the minister and the remainder used for general purposes, including the repair and improvement of the church property. Until these lots were sold, the church was not in a financial condition to provide a residence for or pay the salary of a full time minister, but in recent years has been able to do so.

It thus affirmatively appears that since 1871 the 100 acre tract has been openly diverted from the uses stated in the indenture of 1713. For more than half a century respondent has had sole and uninterrupted possession, use and control of the property to the complete exclusion of all other persons whatsoever. It has managed the property as it has seen fit, and used the rents and profits, not according to the directions of the trust, but quite otherwise. All of this was done with the knowledge and acquiescence of the congregation and its ministers who regarded the property as being owned by respondent.

Although the indenture of 1713 was recorded in the Register's Office for Charleston County in 1732, its existence appears to have been either unknown or disregarded until shortly after the property was subdivided in 1945, when the record was discovered. It was then decided to remove any cloud on the title created by this instrument. For the purpose of instituting an appropriate action, trustees...