Ferraria v. John Vasconcellos A1

• Decision Date: 31 January 1863
• Parties: MATHIAS FERRARIA et al.v.JOHN VASCONCELLOS et al.a1
• Court: Illinois Supreme Court

31 Ill. 25

1863 WL 3069 (Ill.)

MATHIAS FERRARIA et al.

v.JOHN VASCONCELLOS et al.a1

Supreme Court of Illinois.

January Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Morgan county; the Hon. D. M. WOODSON, Judge, presiding.

This was a suit in chancery instituted in the court below, by the plaintiffs in error against the defendants in error. The objects and scope of the bill, the pleadings and proofs in the cause, are sufficiently set forth in the opinion of the court.

Messrs. MCCONNEL & KETCHUM, for the plaintiffs in error, cited--

23 Ill. 450, and authorities there cited; and Miller v. Grable, 2 Denio, 492; Gibson v. Armstrong, 7 B. Mon. 481; Robinson v. Bullion, 9 Barb. 64; Trustees v. Sturgeon, 9 Bar. 321; Miller v. English, 1 Zabriskie R. 317; St. John's College v. Tedington, 1 Bl. Rep. 84.

Messrs. D. A. SMITH, and CYRUS EPLER, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This cause was remanded for further proceedings, at January term, 1862, in order that the parties might have an opportunity of being heard on all legitimate evidence they might see proper to adduce on another trial. Vasconcellos et al. v. Ferraria et al., 27 Ill. 238, 240.

Much testimony has been taken, making quite a voluminous record. By the terms of the remanding order, we must look at the whole case, in the light of this additional evidence, cumulated upon the former, remaining in the first record. It is very clear now, that the case has not been before us, in all its length and breadth, as at present developed by this record. More time having been afforded us to take its dimensions, we are now better prepared to decide the whole case upon its merits.

To understand it properly, the prominent facts must be stated.

It appears from the bill and proofs, that the parties here litigating, were known in the island of Madeira as the Free Portuguese Church, under the jurisdiction of the Free Presbyterian Church of Scotland. In 1851, they received the proper certificate of dismissal from the Free Church Presbytery of Glasgow, and came to this country. The letter of dismissal required that they should unite with, and come under the jurisdiction of, the Presbyterian Church of the United States. On arriving at Jacksonville, in that year, they assumed to be a religious body, under the name of the Free Portuguese Church, and determined to erect a suitable building in which to worship. They purchased a lot, on the first of September, 1852, at the price of $250, and having no charter, took the deed in the name of individual members of the church, as trustees. On this lot they erected their church, part of the cost of which was subscribed and paid by the several members of the church, and a part by others who were not members, but were favorable to the undertaking; a large portion of the money, however, expended in the building, was the voluntary contribution of the Old School Presbyterian churches of the Eastern States, to be devoted, as the bill alleges, to building a church of the Old School Presbyterian order. It was not until April, 1856, that they presented their letter of dismissal from the Presbytery of Glasgow, and applied to be received into, and taken under the care of, the Presbytery of Sangamon. This application was favorably received, and they were taken into that presbytery. At this time the congregation numbered about one hundred and twenty-eight members, and, by their unanimous consent they were received into this presbytery. This church seemed to move on harmoniously, and to prosper, until April, 1858, when a schism arose in it, producing this litigation. This seems to have been the origin of it:

The island of Madeira, being subject to the Roman Catholic crown of Portugal, the Roman Catholic was there the prevailing religion, one of the requirements of which is understood to be, that all its members shall be baptized according to the ordinances of that church. With Roman Catholics, baptism is reckoned one of the sacrements of the church, and it is a point of belief, with the professors of that religion, that no person, young or old, can be saved, without it is duly administered. Their pastor, the Rev. Mr. De Mottos, it is inferred, together with a large proportion of the members of this church, before they proselyted to the Presbyterian faith, had been baptized according to the forms of this church, in the island of Madeira, and quite rationally supposed that was all sufficient--other more conscientious members, not confiding in the saving grace of Romish sprinkling, had the ordinance again administered to themselves, according to the requirements of the Presbyterian Church, and thus dissensions arose. The question was submitted to the Sangamon Presbytery, Was baptism, as ordained and administered by the Roman Catholic Church, of any validity? A decision against its validity was rendered by the presbytery, accompanied by a declaration, as this church had been organized prior to their jurisdiction attaching, the matter was not of sufficient importance to proceed with any disciplinary measures against the recusants, but Christian forbearance was recommended to be exercised by all the parties. Whereupon, the pastor, Mr. De Mottos, probably deeming secession preferable to re-baptism, called a meeting of the congregation, and a proposition to withdraw from the Sangamon Presbytery was submitted to it. A vote was taken, alleged by the complainants to have been very disorderly and illegal, and the result was, 105 for withdrawing, 101 against it. On its announcement, the doors of the church were closed against the defeated party, the seceders taking possession of the church and its properties, and organizing a congregation, with the Rev. Mr. De Mottos at its head, as pastor. On being advised of this, the Sangamon Presbytery appointed a committee to visit Jacksonville, to inquire into and endeavor to settle the difficulties. The church was notified thereof, and of the day the committee would desire an interview, accompanied by the request that the church should be present. On the arrival of the committee, they found the church building closed against them, and learned that a portion of the church had declared their separation from, and independence of, the Sangamon Presbytery, and refused them the use of the building. The members of the church were then requested to meet at another house of worship, in which the Rev. Mr. Allen officiated. This meeting was largely attended, for the most part by those who adhered to the presbytery, and they were informed by the committee that those who adhered to the presbytery composed the church, and would remain in possession of all the rights and privileges of the church; that they should deal kindly and patiently with the seceding party, and if they persisted in the attitude they had assumed, that it would be necessary to erase their names from the church rolls, or in some way exclude them from the church. Mr. De Mottos having ceased his labors with this portion of the church, they were promised that the presbytery would endeavor to procure a pastor for them, and were advised to continue public worship as before, and to invite the Rev. Mr. Allen to administer the sacraments, and preach to them. The committee made a report of its proceedings to the presbytery, which was approved; and continued the committee in existence, and has not yet discharged it. This church--or fragment--has continued to be represented on the floor of the presbytery by an elder, its name is still upon the roll, and its portion of all presbyterial taxes is assessed upon it and paid as before, and efforts are unremitting to supply it with a pastor.

Previous to this, attempts had been made by this church to become incorporated under the statute, but they proved abortive, when, on this division being brought about, the complainants in the bill made themselves, on the 17th of May, 1858, a regular corporation, under the name of the Free Portuguese Church, in pursuance of the provisions of chap. 25, division 3 (Scates' Comp. 979.)

It does not appear that any pastor has been provided by the Sangamon Presbytery, and the inference from the facts, is, that the seceding party are in the constant use of the church property, the pulpit being filled by the Rev. Mr. De Mottos, the adhering party being either excluded, or declining to participate in its use, or worship in it.

Like all quarrels among religious sects, always the most inveterate, this grew daily more intense. This bill in chancery, and the tedious and expensive proceedings under it, are the fruits.

The bill prays for the restoration to complainants of the church edifice and property, as the legal owners under the deed, and in virtue of their election as trustees.

The defendants, in their answer, insist, that they are the lawfully constituted trustees of this church, and that the title to the house and lot is vested in them, and their successors in office, in trust for the majority of that church, and deny that the plaintiffs are the legally authorized trustees. They further say, in answer, that in the spring of 1858, the congregation of this church held a meeting and took a vote, on the question of remaining in the Sangamon Presbytery, and the vote resulted 89 in favor, and 106 against remaining; that they have never refused the complainants, or any of the members, the privilege of worship in this house; and in bar of the claim set up, they allege that the election, under which complainants claim to be trustees, was not held at the church; they further say, that the moneys collected to build the house, were raised and bestowed without regard to the denominational character of the church. The respondents claim to have been elected trustees on the 8th of October, 1855, and as such, the legal title to the lot and church is vested in them, and their successors in office, for the use of the majority of the church; and they...