John Goesele and Others, Appellants v. Joseph Bimeler and Others

• Decision Date: 01 December 1852
• Parties: JOHN G. GOESELE AND OTHERS, APPELLANTS, v. JOSEPH M. BIMELER AND OTHERS
• Court: U.S. Supreme Court

55 U.S. 589

14 How. 589

14 L.Ed. 554

JOHN G. GOESELE AND OTHERS, APPELLANTS, v. JOSEPH M. BIMELER AND OTHERS.

December Term, 1852

THIS was an appeal from the Circuit Court of the United States for the District of Ohio, sitting as a Court of Equity.

The bill was filed by John G. Goesele and six other persons, as heirs at law of Johannes Goesele, deceased, against Bimeler and twenty-four other persons, members of the Society of Separatists.

The facts of the case are stated in the opinion of the court.

The Circuit Court dismissed the bill, and the complainants appealed to this court.

It was argued by Mr. Quinn, for the appellants, and by Mr. Stanberry and Mr. Ewing, for the appellees.

Mr. Quinn, for the appellants, stated the facts in the case, the articles of association made in 1819 and 1824, and then made the following points:

1st. That the purchase being made for the use of all the members of the company, the purchase-money paid with the issues and profits of their joint labor or joint means, and the title taken by Bimeler, either with or without a fraudulent intention, makes him a trustee of the legal estate, holding to the use of the members of the company, each of whom own an undivided portion of the whole trust or equitable estate.

2d. That this trust, or equitable estate, is an estate of inheritance, alienable and descendible like any other fee. 8 Ohio R. 398; 9 Ohio R. 145. And that of such an estate Johannes Goesele died seised in 1827.

Here we think the argument properly ends, and that the complainants are entitled to an account and partition. But to the case made upon the articles, we say——

1st. That if the articles of 1819 constituted a partnership, (which we think they did not,) it became dissolved by Johannes Goesele's death, or by the first change in its constituent parts.

2d. That the articles of 1824 are void for no less than four different reasons.

1. Because there is no grantee or assignee to take the property from the natural persons. Sloan v. McConahy, 4 Ohio R. 169. The society being unincorporated. 4 Wheat. 1.

2. Because the trusts are vague and uncertain. 3 Kent's Com. 303; Bacon's Ab., Uses and Trusts, 256; Tomlins's L. Dict., Trusts; Story's Eq. § 979 to § 1070; 12 Ohio R. 287; 5 Mass. 504; Swan's Ohio Stat. 319; 2 Spencer's Eq. 106; 7 Eng. Com. Law R. 267.

3. Because they create a perpetuity. Story's Eq. § 974, n.; 10 Ohio R. 4; 2 Spencer's Eq. 93, et seq. 106; 4 Ohio R. 515; Lord Deerhurst v. Duke of St. Albans, 5 Mad. 235; 4 Kent's Com. 267, 271; 1 Cox, 324; 1 Bing. 104.

4. Because they are the work of imposition, and a scheme of Bimeler to defraud his cestui que trusts.

In addition to these two exceptions taken to the articles of 1824, two others are made, which are alike common to both, and which, in their natural order, lie in advance of those just taken. They are——

1st. That no articles were executed, some of the members having failed to sign; among whom is the defendant Bimeler, who now claims protection under them.

2d. That the so-called Separatists' society, at Zoar, is not an association or community, but is an institution of a master and his slaves, or what the Roman jurists characterized as societas leonina. Story on Part. § 18.

Bimeler, upon the face of his pleadings, presents five points of defence.

1. That by the articles, there is a surrender of property, and that in consequence no property descended to Goesele's heirs.

2. That the institution is to be taken as a general partnership, with the principles of succession ingrafted upon it, and its property is to be taken as personalty.

3. That in virtue of the act of incorporation, passed in 1832, the entire property passed to the corporation.

4. That Johannes Goesele's labor was not worth more than his support.

5. That the property has been improved with regard to a common ownership, and cannot now be divided.

The first of these points, we say, admits the first objection made to the articles of 1824, viz., the want of an assignee. For, while it claims a surrender, it does not show to whom that surrender was made.

Upon the second point, we think the articles do not constitute a partnership; yet, if they do, we think it is a waiver of the whole defence; for, if the members were partners, they owned the property. But a partnership, with the principle of succession ingrafted upon it, would be a corporation, which individuals have not the power of making. In the consideration of these points, the following cases are cited: Miles v. Fisher, 10 Ohio Rep. 1; Story on Part. § 273, § 18; 15 Johns. Rep. 159; 11 Mass. Rep. 469; Swan's Ohio Statutes.

The third point, namely, that Goesele's property passed to a corporation, five years after his death, is not the law. 8 Pick. Rep. 455.

Upon the fourth point, we say that, whether Goesele's labor was worth more or less than his support, is a matter after which the court will not inquire; but, finding him a member of the company, and a joint owner of the estate, will presume his share equal to that of the other members. If, however, it makes the inquiry, it will find that he contributed about twice or three times his proportionate share.

The fifth and last point presented on the face of the pleadings, namely, that the property has been improved with regard to a common ownership, and is incapable of division, we cannot but regard as trifling. And yet we find that depositions, covering no less than thirty pages of printed record, have been taken to prove this point, together with one other of similar importance, namely, that the members are well clothed, well fed, and are contented.

One other point was raised by the defendant, Bimeler, at the hearing below, and will probably be raised again. It is, that 'the society is a charity,' or rather that the property is a donation to charitable use. This, we say, it is not, and cite Ambler, 652; Story's Eq. § 1156, 4th ed., § 1182, 1183; Rabb v. Read, 5 Rawle's Rep. 154; Chase's Ohio Statutes, 1066; Swan's Ohio Statutes, 782; 4 Wheat. 1.

We are advised that it will be insisted that the society is what is called a universal partnership. If it is, it will not help the defence; for such partnerships differ from ordinary partnerships only in the extent of the investment; that is, the members invest their all, all their labor, property, and skill; but in every other particular, including the causes of dissolution, they are governed by the same rules that govern ordinary partnerships. Were they, however, such as is claimed by the defence, they would be corporations.

Again, we are advised that it will be claimed that the articles are a contract for survivorship. To this we answer, that nothing can be farther from both the letter and spirit of the instruments. Instead of its being provided that one shall survive to the estate of another, it is expressly provided, that no one shall survive to, or even have any thing; and in this particular the first decedent and the last survivor are placed in precisely the same situation. Nothing could be more foreign from the intention, than that the last survivor and his heirs should take the whole property, to the exclusion of the heirs of all the other members.

That Goesele once owned the property, is admitted; and Bimeler claims to be nothing but a trustee. In this situation, when called upon by the cestui que trust to convey the legal title, he endeavors to defend himself by saying, that cestui que trust assigned his interest to a third person. This kind of defence cannot be sustained. For as he is a mere stakeholder, by his own showing, he must file his bill of interpleader, and bring that third party before the court to litigate the right.

He claims protection, too, under instruments which he never signed, but which he got others to sign, by representing that he would also be a subscriber.

Great complaint is made from the other side, that we are endeavoring to infringe upon their liberties by prohibiting them from living in community. This is not so. Mr. Bimeler and his adherents may live in any way they please, provided they live on their own property; but we are unwilling to give them our property to enable them to live in any way whatever. They say, too, that the appointment of a receiver or a partition will break up the society. If it does, it ought to be broken up; for it is an evidence that the members do not wish to live as they do.

The articles of 1833 purport to be a revision of those of 1819 and 1824, and also to be an acceptance of an act of incorporation passed in 1833; but they form a society entirely different from the one created by the act, for which reason, we think, the grant of corporate power has been rejected. A grant of corporate power must be received as it came from the hands of the legislature, or it is not received at all. Kirk v. Newill, 1 T. R. 71.

Their by-laws, too, which are required by the statute to be consistent with the laws of the United States and the State of Ohio, are opposed to public policy.

They require the alienating rights which are unalienable, and close the doors of the courts of justice against the citizen. Constitution of Ohio, §§ 1, 16, Bill of Rights; 1 Blackf. 122; 19 Wend. 77. Deprive the husband of his curtesy and the widow of her dower. 4 Kent, 131; 3 Id. 30, e; 2 Spencer's Eq. 104; 1 Eden, 415. Their trusts are also vague and uncertain. They are also executory, and, to divest the member of his property, are without consideration.

Under these articles, as well as under those of 1824, if they are sustained, Bimeler will eventually take the whole property in absolute ownership. He still holds the legal title. The members, according to his defence under the articles of 1824, hold an use while they remain members; consequently, when they cease to be members, either by death or otherwise, the use estate becomes extinct, and his legal title takes the absolute property. The same is the case under the articles of 1833,...