Fid. Union Trust Co. v. Union Cemetery Ass'n

Decision Date08 April 1929
Citation145 A. 537
PartiesFIDELITY UNION TRUST CO. v. UNION CEMETERY ASS'N et al.
CourtNew Jersey Court of Chancery

(Syllabus by the Court.)

Suit by the Fidelity Union Trust Company as trustee against the Union Cemetery Association and others. On Cemetery Association's exceptions to master's report. Exceptions respectively sustained, modified and overruled, as indicated in opinion.

Louis Hood, of Newark, for complainant.

Otto A. Stiefel, Arthur T. Vanderbilt, and Harry A. Augenblick, all of Newark, for exceptants.

BACKES, Vice Chancellor. Special Master Lynch, to whom the matter was referred, as advised in an earlier opinion ([N. J. Oh.] 139 A. 706), has found and reported the value of the cemetery turned over to the Union Cemetery Association, as of October 25, 1912, to be $440,000, to which the association has taken exception, contending, as it did before the master, that the criterion of appraisal of the cemetery should have been farm land value plus expenditures for cemetery purposes, whereas the master took for his guide the value of the land as a cemetery, including the expenditures, and arrived at the figure upon the evidence of witnesses competent to appraise property of that type. The measure of value adopted is correct, the finding is approved, and the reasoning of the master concurred in, that land, when dedicated to the burial of the dead, acquires an unique value by the grace of its consecration and the exclusiveness of the cemetery franchise.

, The mortgage under foreclosure was given for the purchase price of the cemetery. The conception of the legal effect of the mortgage as previously expressed is that the mortgage is merely evidence of the vendor's equitable lien upon one-half the proceeds of sales of burial plots, which half, the Cemetery Act (1 Comp. St. 1910, p. 375, § 10) provides, shall be set aside to pay the purchase price. The mortgage itself speaks the statutory scheme in this respect, in that it stipulates that the lands are to be used for cemetery purposes, to be subdivided into burial lots and plots for sale and to be severally released upon payment of half the sales price. Whatever it may contain of limitations, conditions and forfeitures, in conflict with the Cemetery Act, is ultra vires. A decree for the sum reported by the master will be advised, to be impressed as a lien and to be made out of one-half the proceeds of sales by the cemetery.

In Spear v. Locust Wood Cemetery Co., 72 N. J. Eq. 821, 66 A. 1068, there was a decree for the mortgage debt to be executed by sale of lands not actually devoted to cemetery purposes. The mortgage had been executed by a prior owner for the purchase price of a tract of land, part of which was conveyed to the cemetery subject to the mortgage; the mortgagee had notice of the intended ultimate use of the land for cemetery purposes at the time he took his mortgage; and Vice Chancellor Learning held the mortgage to be subject to the Cemetery Act only to the extent of exempting from sale the portion dedicated to burial use. The present case is different. Here...

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8 cases
  • George Wash. Mem'l Park Cemetery Ass'n v. Mem'l Dev. Co.
    • United States
    • New Jersey Court of Chancery
    • November 12, 1947
    ...of the proceeds of sales of lots and plots shall be set aside for the payment of the amount due. Fidelity Union Trust Company v. Union Cemetery Association, 104 N.J.Eq. 326, 145 A. 537; Burke v. Gunther, 128 N.J.Eq. 565, 17 A.2d 481. Meagher wants to be compensated for the value of the serv......
  • Burke v. Gunther
    • United States
    • New Jersey Court of Chancery
    • January 23, 1941
    ...unpaid balance of the purchase price, on one-half of the proceeds of sales of burial lots and plots. Fidelity Union Trust Company v. Union Cemetery Association, 104 N.J.Eq. 326, 145 A. 537. The rights and powers of the cemetery company, and its liabilities, are clearly defined by the statut......
  • Graceland Park Cemetery Co. v. City of Omaha
    • United States
    • Nebraska Supreme Court
    • March 30, 1962
    ...for that purpose. Recognition of the unique value of cemetery property has been noted by the courts. In Fidelity Union Trust Co. v. Union Cemetery Ass'n, 104 N.J.Eq. 326, 145 A. 537, 538, the court said that land, 'when dedicated to the burial of the dead, acquires an unique value by the gr......
  • Fid. Union Trust Co. v. Union Cemetery Ass'n
    • United States
    • New Jersey Court of Chancery
    • November 29, 1944
    ...and the Cemetery Association, some of which exceptions were sustained and others modified or overruled. Fidelity Union Trust Co. v. Union Cemetery Ass'n, 104 N.J.Eq. 326, 145 A. 537, 538. In a portion of the opinion rendered by Vice Chancellor Backes he says: ‘The cemetery association has h......
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