Delaware Land & Development Company, a Corporation of State v. First And Central Presbyterian Church of Wilmington, Delaware, Inc., a Corporation of State

• Decision Date: 22 January 1929
• Citation: 16 Del.Ch. 410,147 A. 165
• Court: Court of Chancery of Delaware
• Parties: DELAWARE LAND AND DEVELOPMENT COMPANY, a corporation of the State of Delaware, Defendant Below, Appellant, v. FIRST AND CENTRAL PRESBYTERIAN CHURCH OF WILMINGTON, DELAWARE, INC., a corporation of the State of Delaware, Complainant Below, Appellee

147 A. 165

16 Del.Ch. 410

DELAWARE LAND AND DEVELOPMENT COMPANY, a corporation of the State of Delaware, Defendant Below, Appellant, v. FIRST AND CENTRAL PRESBYTERIAN CHURCH OF WILMINGTON, DELAWARE, INC., a corporation of the State of Delaware, Complainant Below, Appellee

Court of Chancery of Delaware

January 22, 1929

BILL FOR THE SPECIFIC PERFORMANCE of a contract for the sale of certain real estate.

The complainant below, the "First and Central Presbyterian Church of Wilmington, Delaware, Inc.," filed a bill for the specific performance of a contract, in which the "Delaware Land and Development Company" had agreed to purchase from it, the property on which its church was located on the east side of Market Street, in the City of Wilmington. The contract was admitted but the "Delaware Land and Development Company," the defendant below, in its answer, set up the defense that the church had agreed, in such contract, to convey a good and marketable fee simple title to all of the land covered by the contract of sale; but that it was unable to convey such a title.

By agreement, the case was heard on bill, answer and affidavits filed.

The Chancellor, in the court below, held that the church could convey a good and marketable fee simple title and decreed specific performance of such contract by the "Delaware Land and Development Company."

That company appealed from the Chancellor's decree.

While seven assignments of error were filed, they were all to the following effect:

1. That the title to the Stedham lot was not marketable, because it was subject to condition subsequent and would, therefore revert to the heirs of the original grantor if it should no longer be used for a meeting house and burying ground in accordance with the provisions of the deed to the church.

2. That if not subject to a condition subsequent, the Stedham property was stamped with a charitable trust and could only be used for a meeting house, burying ground and such other pious uses as were provided for by the deed to the church.

3. That the Church had no record or other title, whatever, to a certain portion of the property covered by its contract of sale.

The complainant below first attempted to incorporate under the name of "The First Presbyterian Congregation of the Borough of Wilmington" on the twenty-third day of December, 1789. On the twenty-third day of August, 1906 because the original certificate of incorporation did not contain a statement that the society then had a membership of at least fifteen families, which membership was essential to incorporation under the Act of 1787, the same society was reincorporated under the name of "First Presbyterian Church of Wilmington, Delaware, Incorporated." On November 20, 1920, this name was changed to the present name of "First and Central Presbyterian Church of Wilmington Delaware, Inc."

Some fifty years prior to the original incorporation of the church, Timothy Stedham, by deed dated December 30, 1737 conveyed to its trustees, overseers and elders and their successors, etc., for certain specified purposes a lot containing one acre of land lying between Market and King Streets and north of the Great Road to the Rocks in what is now the City of Wilmington, but which was then known as "Willing Town."

The consideration, form and material provisions of this deed are set out in some detail in the opinion of the court and therefore, will not be repeated here.

The northern portion of this lot has already been sold by the church and was the site of the public library in the City of Wilmington. That land was, therefore, not included in the contract of sale before this court.

While the Stedham deed conveyed title to a tract of land lying on the north side of the Great Road to the Rocks as the same formerly existed, it appeared, from the official map of the City of Wilmington, made in 1801, that when this suit was brought that road had been closed for upwards of one hundred years. The title to the land lying to the South of this old road, together with the title to one-half of the roadbed itself was, prior to March 15, 1771, apparently claimed by Peter Stalcup. On that date he leased to Zachariah Ferris, for the term of two thousand years, from March 25, 1771, a tract of land lying to the south of the middle line of the Great Road to the Rocks, subject to the payment of a certain rent. This lease is not of record, but is referred to in numerous deeds.

Zachariah Ferris died, apparently, in 1803, and his will was probated January 31st, of that year. He devised twenty feet of the land in question lying northeast of what is now known as Ninth Street "and next adjoining to the Presbyterian Congregation's land," to his two grand-daughters, Mary Horner (afterwards Woodbridge) and Elizabeth Horner (afterwards Hollingsworth) in fee simple; all the rest and residue of his estate was devised to his son, John Ferris, also in fee simple.

Mary Woodbridge and Elizabeth Hollingsworth, and their husbands, by deed dated July 7, 1804, conveyed the twenty feet in question to John Ferris, who was the devisee of the rest and residue of the Zachariah Ferris estate. This deed, also, described the land conveyed as "next adjoining to the Presbyterian Congregation's land."

By two deeds, executed and delivered in 1813 and 1814, the devisees of Peter Stalcup, or their assigns, conveyed to John Ferris the reversion in the lands and premises which had been originally leased by Stalcup to Zachariah Ferris, for the term of two thousand years.

John Ferris, on February 19, 1818, conveyed to one Margaret Donaldson a strip of land beginning at what is now known as the northeast corner of Ninth and Market Streets, extending back to King Streets, and having a front on both streets of seventy-three feet.

This deed stated that the property conveyed was bounded on the north by "land in possession of the Presbyterian Congregation" and the land included in it was apparently almost identical with the land on which the Delaware Trust Company building now stands. So far as the record shows, no other conveyance was made by John Ferris during his life time.

The Stalcup line apparently ran to about the middle of what had been the Old Road to the Rocks but the Stedham lands apparently ran only to the northern boundary of that road. Therefore, at the time of the death of John Ferris in 1828 he apparently had the record title in fee simple to a strip of land having a front on Market Street of about sixty-seven feet and on King Street of thirty-seven feet bounded on the north by the northern half of the bed of the Old Road to the Rocks.

Subject to a power of sale in his executors, all of the property owned by him passed under the residuary clause of his will to nine nephews and nieces in fee simple. Pursuant to the power of sale above referred to, the executors of John Ferris by deed dated May 24, 1832, conveyed the fee in the bed of Ninth Street to the City of Wilmington but so far as the record, in this case, shows no other deeds were made by them and no acts of ownership over any of the property in dispute were ever exercised by any of such devisees. The church records appeared to have been regularly kept by its officers from a very early date and at a meeting of the trustees held on October 24, 1792, the following entry appeared in such records:

"The Trustees of The First Congregation of Presbyterians in the Burough of Wilmington met and having considered an encroachment made by Zachariah Ferris on the ground belonging to the said congregation by erecting a house and by enclosing and keeping possession of the same, it is now ordered that the said Zachariah Ferris be required to deliver up the said ground, by him so taken and possessed," and certain persons, (naming them) were "ordered to wait upon the said Zachariah Ferris, or his lawful atty., who acts for him for that purpose and upon refusal of the said Zachariah Ferris, or his atty., it is hereby ordered that John McKinley, Esq., apply to counsel learned in the law to bring an ejectment for the recovery of the said ground."

The records of the Court of Common Pleas showed that an action of ejectment was brought by the church in 1799 against John Rea, though whether he was the tenant of Zachariah Ferris did not appear.

The record of this case was marked settled on May 24, 1799.

At a meeting at the Church Trustees apparently held August 3, 1799, the church records showed the following entry:

"Taking into consideration the present situation of the graveyard owing to the unfinished state of the wall which incloses the same, have after mature consideration agreed to the following resolves:

"1st, Resolved that the wall on the southerly side of the yard be taken down and rebuilt on the line between said congregation and Zachariah Ferris as the same has been established by mutual agreement between the Trustees of said Congregation and the said Zachariah Ferris."

At a meeting apparently held May 20, 1815, they also showed that "Mr. John Ferris presented an account against the congregation for a frame house now on the premises of the said congregation for which he agrees to take the sum of $ 450, and the trustees aforesaid have agreed to pay John Ferris the above sum" in certain specified installments but $ 150 in cash. What purported to be the signature of John Ferris receipting for a payment of this latter sum also appeared on the record of this meeting.

An affidavit of a competent person that from a comparison of this signature with the signature appearing on the will of John Ferris he was satisfied that Mr. Ferris signed the receipt which appeared on the church record.

The bill alleged that the church records of proceedings beginning October 8, 1838, and ending July...