Mills v. Davison

• Decision Date: 01 December 1896
• Citation: 54 N.J.E. 659,35 A. 1072
• Parties: MILLS v. DAVISON et al.
• Court: New Jersey Supreme Court

35 A. 1072

54 N.J.E. 659

MILLS

v. DAVISON et al.

Court of Errors and Appeals of New Jersey.

Dec. 1, 1896.

(Syllabus by the Court.)

Appeal from court of chancery.

Action by William Davison against the rector, wardens, and vestrymen of Grace Church, Westfield, N. J., and others. From the judgment, Alfred Mills, one of the defendants, appeals. Reversed.

Alfred Mills, pro se.

Craig Marsh, for respondent.

DEPUE, J. The rector, wardens, and vestrymen of Grace Church, in Westfield, were Incorporated as a religious society by a certificate filed November 20, 1862, pursuant to the act to incorporate religious societies (Revision, p. 962, § 27). During the years 1874 and 1875 the corporation erected a church building on a lot of Land in Westfield owned by Alfred Mills and Catharine, his wife. The building was erected and used for the purpose of public worship and teaching in accordance with the usages, rites, and ceremonies of the Protestant Episcopal Church in the United States of America. The cost of erecting and furnishing the building was about $6,500. Of this sum, Mr. Mills and his wife gave $2,900. To raise the money necessary to complete the building, after other voluntary contributions were applied, the sum of $2,000 was borrowed of the Mutual Benefit Life Insurance Company. To enable the society to raise this money on mortgage, Mr. and Mrs. Mills made conveyance to the society by a deed made and executed on the 14th of June, 1875. On the same day the society, in its corporate name, made and executed a mortgage on the lot so conveyed to it, to the insurance company, for the said sum of $2,000. The mortgage is now being foreclosed. On the 30th of April, 1894, William Davison recovered a judgment against the society, in its corporate name, for the sum of $1,554.07. This debt was not in any way connected with the building of the church edifice. Mrs. Mills died before the filing of the bill in this case, and her title to the premises—whatever it is —became vested in her husband, Alfred Mills, and her son, Edward, who were made parties to the foreclosure suit. Davison, as a judgment creditor, was made a party by his petition. This controversy is over the surplus money that may remain after paying the mortgage debt. Davison, by his answer, claims that such surplus should be applied to the payment of his judgment. Alfred Mills has answered, and in his answer denies that the Davison judgment is a lien on the mortgaged premises, and, by way of a cross bill, claims that the surplus of the proceeds of the sale of the mortgage debt should be paid to him and his son. The church society has also answered, consenting to a sale of the mortgaged premises, and submitting to the determination of the court the question of the application of the surplus of the money realized from the sale, after payment of the mortgage debt, interest, and costs. On the motion of Davison, the chancellor made an order that the answer of Mills by way of a cross bill be struck out, and the cross bill be dismissed. From this order, Mills appealed.

The question that lies at the foundation of this controversy is whether the deed of conveyance made by Mr. and Mrs. Mills to the church society was a conveyance to a charitable use. The situation before the deed was made—the object for which the society was incorporated, the erection of a church edifice for religious purposes, by voluntary contributions, on a lot constituting a suitable curtilage for a building devoted to such uses, and the need of the money borrowed on the mortgage to complete and furnish the building-has already been mentioned. The deed is to the religious society and to their successors, with the words "but not to their assigns" added. It was made for a nominal consideration, and was therefore a deed of gift. The word "successors," in the granting part, created a fee, and the words added, excluding assigns from the succession, are unimportant, except when taken in connection with the habendum, as indicating the intent of the grantors. The habendum is in these words: "To have and to hold unto the said party of the second part and their successors forever, with this express condition and limitation: That neither the said party of the second part, nor their successors, shall at any time sell, mortgage, or in any way convey the said landand premises, or any part thereof, and that no building shall be kept, maintained, or erected thereon, except for the purpose of public worship and teaching in accordance with the usages, rites, and ceremonies of the Protestant Episcopal Church in the United States of America, and also except the proper outbuildings appurtenant thereto."

The rule against perpetuities, as applied to private trusts, does not apply to gifts to charitable uses. Gray, Perp. § 590; 1 Lewin, Trusts, 2011; Perry, Trusts, § 384; Perin v. Carey, 24 How. 465, 495, 507; Jones v. Habersham, 107 U. S. 174, 184, 185, 2 Sup. Ct. 336, 345. In Perin v. Carey, Mr. Justice Wayne, delivering the opinion of the court, said: "Such gifts, from the purposes to which they were to be applied, and the ownership to which they are subjected, have had the protection of courts of equity, to prevent any alienation of them on the part of the person or body interested [intrusted] with the offices of giving them effect, and that in all such cases land has been decreed by courts of equity to be practically inalienable, or that a perpetuity of them exists in corporations when they are charitable gifts." And in that case it was held that a devise of real estate to a charitable use, with a direction that no part thereof should at any time be alienated, did not create a perpetuity, in the sense forbidden by law, but only a perpetuity allowed by law and equity in the cases of charitable trusts. In Jones v. Habersham a devise of land to a society for the relief of distressed widows and the schooling and maintaining of poor children, "but on the express condition that said society shall not sell or alienate said lot, but shall use and appropriate the rents and profits of the same for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society," was held to be a good charitable devise. The distinction is between the purchase of lands by a corporation created for charitable purposes, and a donation or gift of lands to such a corporation for uses that are charitable. In Magie v. Evangelical Dutch Church, 13 N. J. Eq. 77, an incorporaced religious society purchased lands for a consideration, and procured from the vendor a deed of conveyance in fee, with an habendum to hold for the specific uses for which the society was incorporated, with a restriction against alienation or incumbering. Chancellor Green applied to this conveyance the rule of the common law, that alienation is an inseparable incident of an estate in fee simple, and could not be restrained by any provision or condition whatever, and that, therefore, a mortgage by the society was valid. But this decision was expressly placed upon the ground that the trust was not created by devise or gift; that the land was...