German Evangelical Protestant Congregation of Church of Holy Ghost v. Schreiber
| Citation | 209 S.W. 914,277 Mo. 113 |
| Parties | GERMAN EVANGELICAL PROTESTANT CONGREGATION OF THE CHURCH OF THE HOLY GHOST et al. v. FREDERICK SCHREIBER et al., Appellants |
| Decision Date | 30 December 1918 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.
Affirmed.
A. W Wenger and John Cashman for appellants.
(1) The petition fails to state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the relief sought. The petition expressly states that neither of the plaintiffs after being incorporated ever received any conveyance of the land from the trustees of the church congregation nor from the congregation. (a) A voluntary religious church association or congregation of people by simply forming a corporation by or among some of its members does not thereby convey any title or interest in any of its real estate to the corporation so formed. Evangelical Church v. Schreiber Heirs, 187 S.W. 845; Catholic Church v. Tobbein, 82 Mo. 418; Frank v Drenkhahn, 76 Mo. 508; Kansas City v. Scarritt, 169 Mo. 482; Lilly v. Tobbein, 103 Mo. 477; Klix v. Polish Church, 137 Mo.App. 347. (b) The petition is otherwise fatally defective in that it recites provisions from the deed from Johan Schreiber, which shows that he only conveyed a limited, determinable easement, which was terminated by the voluntary abandonment of the use specified in the deed, to-wit, a cemetery. Allen v. Wabash Railroad, 84 Mo. 651; Price v. Thompson, 48 Mo 365; Railroad v. Frowein, 163 Mo. 1; Campbell v Kansas City, 102 Mo. 326; Board of Regents v. Painter, 102 Mo. 464; Cummings v. St. Louis, 90 Mo. 259. (2) The trustees of the church congregation and the church congregation and all persons claiming under or through either having voluntarily abandoned the land in question as a cemetery, the heirs of the grantor immediately became vested with a fee-simple title therein and were and are entitled to a decree so determining and adjudging the title in and to them under Sec. 2535, R. S. 1909. Union Cemetery Association v. Kansas City, 252 Mo. 466; Kansas City v. Scarritt, 169 Mo. 482; Campbell v. Kansas City, 102 Mo. 326; Cummings v. St. Louis, 90 Mo. 259; Railroad v. Frowein, 163 Mo. 1; Reynolds v. Reynolds, 234 Mo. 144; Allen v. Wabash Railroad, 84 Mo. 651; Price v. Thompson, 48 Mo. 365; Reed v. Stouffer, 65 Md. 236; University Society v. Dugan, 65 Md. 460; Scott v. Stipe, 12 Ind. 74; Young v. Board of Commissioners, 51 F. 585; Church v. Alexander, 20 Ky. Law Rep. 391; Gray v. Blanchard, 8 Pick. 284; Jackson v. Pike, 9 Col. 73; Police Jury v. Reeves, 6 Martin's Red. (La.) 221. (3) The court will give that construction to the Schreiber deed which the congregation had adopted and given to it themselves as shown by the certificates issued to purchasers of burial lots. Each certificate expressly recites that lots sold in the cemetery are sold "subject to the conditions and restrictions contained in the deed of said Schreiber to the congregation." Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo.App. 49; Patterson v. Camden, 25 Mo. 13; Dobbins v. Edmonds, 18 Mo.App. 307; Railroad v. Frowein, 163 Mo. 1; St. Joseph Union Depot Co. v. Railroad, 131 Mo. 291; Ridge v. Transfer Co., 56 Mo.App. 133; Burnett v. McCluey, 78 Mo. 676; Jones v. De Lassus, 84 Mo. 541. (4) The fact, if it be a fact, that a valuable consideration may have been paid by the grantor does not defeat his or his heirs' right to re-enter and own the granted premises after the same have been abandoned by the grantee for the uses specified in the deed. The owner of real estate may make such disposition of it as he pleases. If he concludes to convey it to another upon condition or to convey a limited estate, it is in his power to impose such conditions as he chooses, or to convey such estate as he feels disposed to, and if a grantee accepts a deed with conditions or provisions which amount to a condition, or accepts a deed conveying a limited estate with special provisions, then that is the contract between the parties and both must abide by it. Reed v. Stouffer, 65 Md. 236; University Society v. Dugan, 65 Md. 460; Scott v. Stipe, 12 Ind. 74; Young v. Board of Commissioners, 51 F. 585. (5) The plaintiffs are bound by the averments of ownership stated in their petition. The petition expressly declares that from the date of the incorporation of the cemetery, in 1865, "said cemetery corporation has been by said congregation considered and taken to be the owner of said real estate, and treated as such by said congregation." The incorporation of the church was not intended to, and did not, alter this view, for in sections 7 and 32 of the church articles of incorporation the continued existence of the charter of the cemetery corporation is expressly recognized. The plaintiff church corporation cannot be heard to deny the effect of its own solemn pleading and its recitals in its articles of incorporation and claim now that it, and not the cemetery corporation, is owner. A party is absolutely concluded by the averments of their pleading. Otrich v. Railroad, 154 Mo.App. 437; Weil v. Posten, 77 Mo. 284; Knoop v. Kelsey, 102 Mo. 291; Davis v. Bond, 75 Mo.App. 32. (6) A grant of land to a religious body for the use and purpose of a church and burying ground is a grant for that special purpose, and when the purpose fails the land reverts to the grantor or his heirs. Gumbert's App., 110 Pa. 496 (1A, 437). A cemetery does not lose its character, as such, because further interments in it has ceased, or become impossible. Campbell v. Kansas City, 102 Mo. 326; Dangerfield v. Williams, 26 App. (D. C.) 508; Tracy v. Bittle, 213 Mo. 302; Kansas City v. Scarritt, 169 Mo. 471; Roundtree v. Hutchinson, 57 Wash. 414, 27 L. R. A. (N. S.) 875; May v. Belson, 10 Ont. L. 686; Com. v. Wellington, 7 Allen, 299; Stockton v. Newark, 42 N.J.Eq. 531; Hunter v. Sandy Hill, 6 Hill (N. Y.) 407. (7) Where land is conveyed for a graveyard or cemetery it does not lose that character by mere disuse. Tracy v. Bittle, 213 Mo. 302; Com. v. Wellington, 7 Allen, 299; Campbell v. Kansas City, 102 Mo. 326. And where the land is conveyed in trust for a burial place, the trust is not to be considered as at an end when the last body which can be buried in it has been deposited. Stockton v. Newark, 42 N.J.Eq. 531. Where premises have been conveyed for graveyard purposes they remain subject to that use so long as bodies remain buried there, and until they are removed by public authority or by friends or relations, and this is so, although the tract has been grossly neglected. Bitney v. Trim, 73 Or. 257. And where land has been conveyed to a village or city as a public cemetery it is not competent for the authorities, in their character of trustees, to abandon the use and thereby defeat the beneficial interest of the public therein. Kansas City v. Scarritt, 169 Mo. 471; Campbell v. Kansas City, 102 Mo. 326; Newark v. Watson, 56 N.J.L. 667; Gumbert's App., 110 Pa. 496; Stockton v. Webber, 98 Cal. 433. (8) Where land is conveyed on condition subsequent, express or implied, the land must be held and used in strict conformity to the terms of the conveyance, and for the use declared, otherwise the heirs of the grantor will become reinvested with the title. Reed v. Stouffer, 56 Md. 236. (9) Ordinance 21128 is void in that it arbitrarily undertakes to exclude the "Pickers Cemetery" from a right it previously enjoyed to make interments of human bodies therein after the Board of Health of St. Louis had officially determined that said cemetery did not constitute a nuisance, and there being no evidence before the court that the cemetery was a public nuisance, the ordinance negatively undertaking to prevent interments in cemeteries, is void. Union Cemetery Association v. Kansas City, 252 Mo. 466. A cemetery is not a nuisance per se. Harper v. City of Nashville, 70 So. 1102. Said ordinance is further void for the reason that it undertook to permit other cemeteries situated within the limits of the City of St. Louis to continue to make interments while it undertook to deny said privilege to the Pickers Cemetery and thereby denied to said cemetery the equal protection of the laws and violations of the Constitution of Missouri and of the United States. Union Cemetery Association v. Kansas City, 252 Mo. 466; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; St. Louis v. Spiegel, 90 Mo. 587; St. Louis v. Russell, 116 Mo. 248; Hannibal v. Tel. Co., 31 Mo.App. 23. (10) The courts of Missouri have the power to inquire into the reasonableness of ordinances, though duly enacted by proper authority of any municipality and are not compelled to accept such enactments as a final determination that the thing commanded or prohibited may be a necessary or reasonable exercise of police power. The courts may go deeper and beyond the motives for the exercise of such power and the reasonableness of the power undertaken to be enforced and declare an ordinance where it is unreasonable and oppressive and discriminates in favor of one party to the detriment of other parties. Union Cemetery Association v. Kansas City, 252 Mo. 466; American Tobacco Co. v. St. Louis, 247 Mo. 374. (11) The plaintiffs' petition is bottomed on what is now Sec. 2535, R. S. 1909, and as the petition shows on its face that neither of the plaintiffs had any title or interest in the land in question, their action must fail for the reason that that statute does not empower the court in the proceeding under it to create an interest or estate in a party suing under the statute, but can only define and adjudge to that party such interest or estate as the party already has at the time of institution of suit. Seidel v. Cornwell, 166 Mo. 51; Howard v. Brown, 197 Mo. 36; Graton v. Land &...
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