Dwenger v. Geary

• Decision Date: 20 January 1888
• Citation: 113 Ind. 106,14 N.E. 903
• Parties: Dwenger et al. v. Geary et al.
• Court: Indiana Supreme Court

113 Ind. 106

14 N.E. 903

Dwenger et al.

v.Geary et al.

Supreme Court of Indiana.

January 20, 1888.

Appeal from superior court, Tippecanoe county; John M. Rabb, Judge.

Bill for injunction by Joseph J. Dwenger, bishop of the Roman Catholic Church for the diocese of Fort Wayne, and Edwin P. Walters, the pastor of the congregation of Roman Catholics known as “St. Mary's of Lafayette,” to prevent the burial of the body of James Geary in a certain cemetery lot owned by John and Michael Geary. Petitioners appeal from a judgment sustaining a demurrer to the bill.John F. McHugh, R. P. Davidson, and J. P. Davidson, for appellants.

The deed from the Balls to John H. Leuers, bishop of Fort Wayne, created no trust enforceable in equity, and, as an attempt to establish a trust, it was void. Heiss v. Murphy, 40 Wis. 276;Brown v. Caldwell, 23 W. Va. 187, 48 Amer. Rep. 376; Fairfield v. Lawson, 50 Conn. 501, 47 Amer. Rep. 669; Nichols v. Allen, 130 Mass. 211;Olliffe v. Wells, 130 Mass. 221;Goodell v. Union, etc., 29 N. J. Eq. 32;Thompson's Ex'r v. Norris, 20 N. J. Eq. 489;Attorney Gen. v. Soule, 28 Mich. 153; 2 Perry, Trusts, §§ 713-732; 2 Pom. Eq. Jur. §§ 834, 835, 1025, and notes; Grimes' Ex'rs v. Harmon, 35 Ind. 198. If the trust in its terms be valid, then the beneficiaries intended were Catholics in their associated or ecclesiastical relations, and that means the church organization. Now, we have a deed made by Catholics to a Catholic bishop of a piece of land to be used as a cemetery for the Catholics of a city named. How is it possible to escape the intention of the grantors that the cemetery was to be for Catholics, through the control of the same authority as that which is over all Catholic cemeteries. We cannot conceive a cemetery for Catholics not under ecclesiastical control, because such a thing is unknown. This construction of the deed is natural and consistent, and, provided a competent trustee has been named or can be appointed, it saves the trust, where otherwise it must fail. The appellee Geary was estopped from burying his son in his cemetery lot, except under the regulations imposed by the appellees. The lot he held by certificate only, but, whether by certificate or deed, it gave him no title to the soil, but an easement in the right of burial only. Washb. Easem. 604; Richards v. Church, 19 Amer. Law Reg. 68, and cases; Cemetery v. Buffalo, 46 N. Y. 503;Windt v. Church, 4 Sandf. Ch. 471;Richards v. Church, 32 Barb. 42;In re Church, 3 Edw. Ch. 155;Church v. Witherell, 3 Paige, 296, 24 Amer. Dec. 223. When he accepted membership in the Catholic Church, he pledged obedience to its rules and regulations, and by them he was bound, and he could not bury in the cemetery in violation of those rules. People v. Trustees, etc., 21 Hun, 184; Lucas v. Case, 9 Bush, 297. The principle of estoppel, we think, most clearly and unavoidably applies. It applies between landlord and tenant, licensor and licensee, bailor and bailee, and in all analogous relations. 2 Perry, Trusts, §§ 850, 870; 1 Perry, Trusts, § 285; Roberts v. Noyes, 76 Me. 590; 6 Wait, Act. & Def. 697; Hasselman v. Mortgage Co., 97 Ind. 365; Edw. Bailm. 73, 173; Bigelow, Estop. 381 et passim. Plaintiffs have rightly joined in this suit. Bliss, Code Pl. § 76; 1 Pom. Eq. Jur. §§ 255, 268; Wood, Nuis. § 783; Simar v. Canaday, 53 N. Y. 305;Brett v. Church, 5 Hun, 149. Different persons having friends buried in a common grave-yard may enjoin molestation of their graves. Davidson v. Reed, (Sup. Ct. Ill. September 27, 1884,) 20 Cent. Law J. 117.Coffroth & Stuart and Langdon & Gaylord, for appellees.

Elliott, J.

The first paragraph of the complaint of the appellants avers that Joseph J. Dwenger is the bishop of the Roman Catholic Church for the diocese of Fort Wayne, Indiana, and that Edwin P. Walters is the pastor of the congregation of the Roman Catholic church known as the “St. Mary's of La Fayette, Indiana,” and that the ecclesiastical jurisdiction of Bishop Dwenger embraces the city of La Fayette; that, according to the principles and polity of the Catholic church, the title and control of all church property is in the bishop of the diocese in which the property is situated, and that he holds it in trust for the congregations and societies of the church, to be by them used and enjoyed according to its principles and polity; that the congregation of St. Mary's holds and enjoys a cemetery which for about 25 years has been held and occupied as a place of burial for the deceased members of that congregation, under the control and authority of the bishop of the diocese of Fort Wayne; that the cemetery has been so used exclusively for the interment of those who, at the time of their death, were in regular standing in the church, according to the principles, usages, and doctrines; that, pursuant to those principles, usages, and doctrines, a great part of the cemetery has been set apart and consecrated for the burial of the dead according to the rites, usages, and doctrines of the church, and that on such consecrated grounds only Catholics of good standing are allowed sepulture; that part of the cemetery grounds, although held by the congregation of St. Mary's, has not been specially consecrated, but is open to use for the burial of persons not in good standing as Catholics; that on the tenth day of February, 1884, James Geary died by his own hand, and that his body is now awaiting burial; that John Geary, the father of the deceased James Geary, owns a lot in the cemetery, and claims a right to there inter the body of his deceased son, and will so inter it unless enjoined; that John Geary has no right to bury his son in the lot owned by him, because, to quote from the complaint, “The cemetery is distinctively consecrated ground for the burial only of true and faithful Catholics who die in full communion with the church; and James Geary, at the time of his death, was not a faithful Catholic in good standing in the church, for, although he may have once been a Catholic, he had, by a wicked and depraved life, and by a failure to observe the doctrines, practices, rules, and regulations of the church, and by failing to contribute to its support, and by failing to receive its sacraments, long before lost and forfeited his membership and standing, and had, as he well knew, absolved and released the church from all duty towards and authority over him, and had forfeited his right to be buried in grounds consecrated to the church.” It is further alleged that on the second day of February, 1858, Peter Ball and Owen Ball, communicants in good standing in St. Mary's, conveyed the land on which the cemetery was located to John H. Luers, then the bishop of the diocese of Fort Wayne, who took the land in trust as a burying ground for the Catholics of the city of La Fayette. Immediately after the conveyance to Bishop Luers, the predecessor of Bishop Dwenger, the congregation of St. Mary's, under the authority of the bishop, and with the co-operation of Peter and Owen Ball, caused the grounds to be laid off into lots and platted, and caused to be set apart and consecrated according to the ritual and principles of the Roman Catholic Church for the burial of the bodies of such persons as were entitled to sepulture according to the rites and doctrines of the church; that the privilege of burying in many of the lots was granted, for a consideration, to members of the church, and a certificate executed to them, but the right so granted was subject to the rules of the church; that, among other requirements necessary to entitle one to interment, it was required that he must have been at his death a member of the church, in full communion, and must have performed all his church duties; that, by the rules and doctrines of the church, a person who committed suicidewas not entitled to burial in consecrated ground, and that it was the rule governing the cemetery of St. Mary's that, before any one should be interred in consecrated ground, a permit must be issued by the pastor of St. Mary's congregation; that a permit was asked by John Geary for the burial of his son in the lot situated in the consecrated ground, and was refused. It is also alleged that James Geary, the deceased son of John Geary, was not living in the family of his father, but was living away from his father's home. It is still further alleged that, if the body of the deceased is buried in his father's lot, it will destroy the character of consecration with which the ground is sacredly invested, and greatly tend to set at naught the authority of the plaintiffs and the discipline of the church. The deed executed to Bishop Luers by Peter and Owen Ball is set forth, and so far as its provisions are material they are as follows: “By this deed Peter Ball and his wife, Charlotte B. Ball, and Owen Ball and his wife, Frances A. Ball, convey and warrant to the Rt. Rev. John H. Luers, bishop of Fort Wayne, in trust for the Catholics of La Fayette, part of the south-west quarter of section thirty-one, township twenty-three north, of range four west. It being hereby expressly understood and reserved that said land is to be used as and for a cemetery for said Catholics.” The second paragraph of the complaint sets forth the deed from Peter and Owen Ball, and contains allegations on the subject of the authority and duty of priest and bishop very similar to those of the first paragraph, and it also makes similar allegations concerning the polity of the church, concerning the laying out and consecration of the cemetery, concerning the life and conduct of James Geary, and concerning the rules of the cemetery. In addition to these allegations, it is averred that, for the purpose of more effectually transferring and confirming in his successor the legal title of all property held by him as bishop, John H. Luers, on the eleventh day of May, 1864, executed a will, wherein he devised the property to Archbishop Purcell and Bishop...