Close v. Glenwood Cemetery Borcherling v. Glenwood Cemetery

• Decision Date: 05 March 1883
• Citation: 27 L.Ed. 408,107 U.S. 466,2 S.Ct. 267
• Parties: CLOSE and another v. GLENWOOD CEMETERY. BORCHERLING v. GLENWOOD CEMETERY
• Court: U.S. Supreme Court

107 U.S. 466

2 S.Ct. 267

27 L.Ed. 408

CLOSE and another v. GLENWOOD CEMETERY.

BORCHERLING

v. GLENWOOD CEMETERY.

March 5, 1883.

[Syllabus from pages 466-467 intentionally omitted] Nathaniel Wilson and J. Hubley Ashton, for Close & Clendenin.

Cortlandt Parker and W. D. Davidge, for Borcherling.

T. W. Bartley, Jessup Miller, and Wm. F. Mattingly, for Cemetery.

GRAY, J.

This is a bill in equity, filed on the twenty-fifth of October, 1877, by the Glenwood Cemetery, claiming to be a corporation extablished by act of congress, against Joseph B. Close, William S. Humphreys, Randolph S. Evans, and George Clendenin, praying for a conveyance of the legal title in a tract of land containing 90 acres, situated in the District of Columbia, known as the Glenwood Cemetery; and for an account. The bill was afterwards dismissed by consent as against Humphreys and Evans. The material facts, as shown by the proofs, are as follows:

In June, 1852, Humphreys, for the sum of $9,000, bought of Junius J. Boyle the tract of land in controversy, and took from him a deed of it, and immediately set about preparing it for use as a cemetery. He inclosed with a high fence and laid out with drives and walks, and improved and embellished, 30 acres of it, leaving the other 60 acres in their original unimproved condition; and in March, 1853, put Clendenin in charge as superintendent. Humphreys conveyed to Close an undivided half of the premises in April, 1853, and the whole tract in June, 1854. The two deeds were absolute in form, but were, in fact, intended as security: the first for the repayment of $20,000, advanced to Humphreys by Close, for the purpose, as Close knew, of converting the estate into a cemetery; and the second for the repayment of other advances to the amount of $7,000, already made to him by Close, for the same purpose, and of subsequent like advances, of the amount of which there is no evidence but Close's own vague and unsatisfactory testimony, unsupported by books or vouchers; and the parties agreed in writing that if Humphreys should meet his obligations, he should have back one-half of the land. Humphreys thenceforward managed the property, acting for himself and Close, through Clendenin as superintendent, until September 1859, when, having failed to meet his engagements, he relinquished all his interest in the property to Close, and Close became sole owner, and assumed control of the property, retaining Clendenin as his superintendent to manage the cemetery.

On the twenty-seventh of July, 1854, congress passed an act entitled 'An act to incorporate the proprietors of Glen wood Cemetery,' by which 12 persons named, eight of them residents of the District of Columbia, and the other four being Close and William Phelps, (since deceased,) residents of New Jersey, and Humphreys and Evans, residing in New York, were created a corporation by the name of 'The Proprietors of Glenwood Cemetery, in the District of Columbia,' and were empowered 'to purchase and hold not exceeding 100 acres of land in the District of Columbia, north of the limits of the city of Washington; to sell and dispose of such parts of said land as may not be wanted for the purpose of a cemetery, provided that at least 30 contiguous acres shall be forever appropriated and set apart as a cemetery; with authority to said corporation to receive gifts and bequests for the purpose of ornamenting and improving said cemetery;' and it was enacted that the affairs of the corporation should be conducted by a president and three managers, to be 'elected annually by a majority of the votes of the proprietors,' and 'each proprietor entitled to one vote for each share held by him,' and that until the first election the four last-named persons should be managers; that the president and managers should have power, among other things, 'to lay out and ornament the grounds,' 'to lay out and sell or dispose of burial lots,' and 'to make such by-laws, rules, and regulations as they may deem proper for conducting the affairs of the corporation, for the government of lot-holders and visitors to the cemetery, and for the transfer of stock and the evidence thereof;' that 'the capital stock of said company shall be represented by 2,000 shares of $50 each, divided among the proprietors according to their respective interests, and transferable in such manner as the by-laws may direct;' that 'no streets, lanes, alleys, roads, or canals of any sort shall be opened through the property of said corporation, exclusively used and appropriated to the purpose of a cemetery: provided, that nothing herein contained shall authorize said corporation to obstruct any public road or street or lane or alley now actually opened and used as such;' that any person willfully destroying, injuring, or removing any tomb, monument, gravestone, fence, railig, tree, or plant within the limits of the cemetery, should be considered guilty of a misdemeanor; that 'each of the stockholders in the said company shall be held liable in his or her individual capacity for all the debts and liabilities of the said company, however contracted or incurred;' that 'burial lots in said cemetery shall not be subject to the debts of the lot-holders thereof, and the land of the company dedicated to the purposes of a cemetery shall not be subject to taxation of any kind;' that a certificate, under seal of the corporation, of the ownership of any lot, should have the same effect as a conveyance of real estate; and that 'it may be lawful for congress hereafter to alter, amend, modify, or repeal the foregoing act.' 10 St. 789.

On the second of August, 1854, the ceremony of dedicating the cemetery by appropriate religious services and addresses was performed on the spot, in the presence of a number of people. Immediately afterwards a pamphlet was published and generally circulated, containing a copy of the charter, a list of the officers, including Close, Phelps, Humphreys, and Evans, managers; Close, president; Humphreys, treasurer; and Clendenin, superintendent; a full account of the proceedings at the dedication in which the property was spoken of as set apart and consecrated for the burial of the dead, and as 'altogether comprising 90 acres, 30 of which are now fully prepared for interments;' and the by-laws of the cemetery, of which the first was, 'All lots shall be held in pursuance of 'An act to incorporate the proprietors of Glenwood cemetery,' approved July 27, 1854, and shall be used for the purposes of sepulture alone.'

Close soon after received a copy of this pamphlet from Humphreys, and from that time to the filing of the bill never objected to the appropriation of the property in the manner appearing thereby. In the course of the next 20 years about 2,000 lots were sold, and each purchaser was given a copy of the pamphlet, and a certificate or deed of his lot, signed by Close, as president, bearing the seal of the company, and having the by-laws printed thereon. The gross receipts from the time of the opening of the cemetery to 1876 were $160,000. No stock was ever issued as provided in the charter.

No taxes were ever paid on any part of the 90 acres. At different times from 1871 to 1876 taxes were assessed, or proposed to be assessed, by the municipal authorities upon the 60 acres which had not been improved. But Close and Clendenin, by representing to the assessors and collector that the whole tract had been dedicated to burial purposes in accordance with the charter, and by exhibiting to them the charter and the pamphlet containing the account of the dedication, induced them to recognize the exemption of the whole tract from taxation.

On the twenty-eighth of February, 1877, congress passed an act amending the act of the twenty-seventh of July, 1854; changing the name of the corporation to 'The Glenwood Cemetery;' providing that its property and affairs should be under the control of a board of five trustees, any three of whom should be a quorum, to be elected annually, 'three by the proprietors of lots in said cemetery' (each to be 'entitled to one vote for each lot owned by him in good faith, upon which a burial has been made') 'and two by the original proprietors,' and to have authority to fill temporary vacancies in the board; that these trustees should so conduct the affairs of the cemetery 'as to secure the equitable rights of each and every person having in any way any vested interest in the said cemetery; and the cemetery shall be amenable and subject to the jurisdiction of the equity courts of the District of Columbia for any...