Church-Wardens, Etc., of Christ Church v. Mayor, Etc., of Savannah

• Court: Georgia Supreme Court
• Writing for the Court: BLECKLEY, C.J.
• Citation: Church-Wardens, Etc., of Christ Church v. Mayor, Etc., of Savannah, 9 S.E. 537, 82 Ga. 656 (Ga. 1889)
• Decision Date: 08 April 1889
• Parties: CHURCH-WARDENS, ETC., OF CHRIST CHURCH v. MAYOR, ETC., OF SAVANNAH.

9 S.E. 537

82 Ga. 656

CHURCH-WARDENS, ETC., OF CHRIST CHURCH v. MAYOR, ETC., OF SAVANNAH.

Supreme Court of Georgia

April 8, 1889

Syllabus by the Court.

1. The title to the cemetery connected with the parish church in Savannah called "Christ Church" was vested by the provincial act of 1758 in the rector of said church as a corporation.

2. After the Revolution, ecclesiastical property held by the rector for pious uses devolved upon the church or society constituting the local body of Christians then and now known as "Christ Church," and all such property not expressly withdrawn by the state passed to the corporation created by the act of 1789, this corporation being "The Church-Wardens and Vestrymen of the Episcopal Church in Savannah called 'Christ Church."'

Error from superior court, Chatham county; ADAMS, Judge.

R Falligant and W. G. Charlton, for plaintiffs in error.

J. R Saussy and S. B. Adams, for defendants in error.

BLECKLEY C.J.

In December, 1789, certain persons, of whom the plaintiffs are the successors, were incorporated by an act of the general assembly by the name and style of "The Church-Wardens and Vestrymen of the Episcopal Church in Savannah, called 'Christ Church."' Marb. & C. Dig. 144. The preamble to the act recites that it is necessary for the promotion of religion and virtue that churches and religious societies be made capable of holding, enjoying, and defending any property that they may have, or may acquire by gifts, grants, or otherwise, and that Christ Church in Savannah has long since been established. The act proceeds to invest the corporation which it creates with all manner of property, both real and personal, donations, gifts, grants, hereditaments, privileges, and immunities whatever, which may belong to the said church, to have and to hold the same for the proper use, benefit, and behoof of the said church. The question in this case being whether this corporation acquired title to the cemetery in controversy, the first step to be taken is to ascertain whether that cemetery was at the date of this act of incorporation the property of Christ Church. This carries us back to the provincial act passed 15th of March, 1758, (Colonial Acts, 19,) which divided the province into parishes, and established religious worship therein according to the rites and ceremonies of the Church of England. The territorial division made was into eight parishes, the first of which embraced the town and district of Savannah, extending up the river Savannah, including the islands therein, as far as the south-east boundary of Goshen, from thence south-west to the River Great Ogeechee, and from the town of Savannah eastward to the mouth of the River Savannah, including the sea islands to the mouth of the River Great Ogeechee, and all the settlements on the north side of said river, to the western boundaries thereof. The name given to this parish was "Christ Church." The second section of the act declared that the church already erected in the town of Savannah, and the ground as then used as a cemetery or burial place thereto, should be the parish church and cemetery of Christ Church. The third section declared that the clerk, then present minister of Savannah, (Bartholomew Zouberbuhler by name,) should be the rector and incumbent of said church; and that he was thereby incorporated and made a body politic and corporate by the name of "The Rector of Christ Church in the Town of Savannah;" was enabled to sue and be sued by such name; was declared to have the care of souls within the parish; and that he should be in the actual possession of the church, with its cemetery and appurtenances, to hold and enjoy the same to him and his successors, together with the glebe land already granted to him, and the message or tenement near to the said church, with all and singular the buildings and appurtenances thereunto belonging, and also all such other lands, tenements, and hereditaments as should or might thereafter be given and granted to the said church or the incumbent thereof. A subsequent act, of April, 1763, (Colonial Acts, 197, 198,) reciting that the cemetery in the parish of Christ Church belonging to the said parish had become too small for the occasion, directed that the cemetery be enlarged and extended to the line of Abercorn street to the westward, and 100 feet to the southward,--the whole to contain 210 feet square; and the church-wardens and vestrymen of the parish were empowered at their discretion to agree with and hire workmen to complete, inclose, and finish the same. Another act, passed April 11, 1768, (Id. 433,) reciting that the cemetery or public burial ground for the parish of Christ Church, notwithstanding the previous addition, was apparently too small to answer the purposes intended, authorized the church-wardens and vestry to lay out an addition of 170 feet in length, of and from the common of the town of Savannah, and adjoining the cemetery or public burial ground, to the eastward; and that the addition so laid out should from thenceforth forever be and remain as part and parcel of the said cemetery or public burial ground; and the wardens and vestry were empowered to inclose the same accordingly, at their discretion. Both these additions were made, as we may assume from the record and from the argument of counsel in the present case. A still further addition was made, under an ordinance of the municipal council of Savannah, in 1789, during the same year that the corporation of the plaintiffs in error was created, and some months before that creation; but as this last addition is not now in controversy, we need not further notice it for the present.

1. We can have no doubt that the original cemetery, with the two enlargements made by the provincial legislature, was church property, and vested in the spiritual corporation consisting of the incumbent of the parish, constituted by the act of 1758. That act must be understood as it was intended by the provincial legislature. It has the same meaning for us in 1889 as it had for the courts of the province, or for those of Westminster Hall, in 1758. We must construe it now precisely as those courts would have construed it then had it come up before them for construction. They certainly would have held it as meaning to fix the title to all the enumerated property, including the cemetery, in the corporation which it created. Those courts would have had no difficulty in accounting for the words "shall be in the actual possession of the said church, with its cemetery and appurtenances, and shall hold and enjoy the same to him and his successors." They would have construed them as a statutory investiture of the temporal part of the benefice as the same was constituted or declared by the act of incorporation. The method of induction at common law, and the effect of it, are stated by Blackstone (1 Comm. 391) thus: "Induction is performed by a mandate from the bishop to the archdeacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling the bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. This, therefore, is the investiture of the temporal part of the benefice, as institution is of the spiritual. And when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson imparsonee." If it were true that the cemetery of a parish church would not pass to the parson and his successors by induction thus performed, it might be said that statutory investiture, such as we are considering, was broader, and comprehended more than the induction of the common law. We find it impossible to read the act of incorporation from the stand-point of those who passed it, and of the time in which it was passed, without regarding it as taking effect upon the title to the cemetery in precisely the same manner as upon the title to the church. The possession, holding, and enjoyment of both are provided for by identically the same language. And, looking in the same way to the acts of 1763 and 1768, providing for the enlargement of the cemetery, we feel sure that they were intended to bring...