Partridge v. First Independent Church of Baltimore

• Citation: 39 Md. 631
• Parties: JAMES R. PARTRIDGE and FRANCIS E. PARTRIDGE, and others, v. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.
• Decision Date: 03 March 1874
• Court: Court of Appeals of Maryland

39 Md. 631

JAMES R. PARTRIDGE and FRANCIS E. PARTRIDGE, and others, v. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.

Court of Appeals of Maryland

March 3, 1874

APPEAL from the Circuit Court of Baltimore City.

In the year 1821, the appellee purchased in fee a parcel of land for a burial ground, and it was used for many years for that purpose. The late Eaton R. Partridge, in his life-time, paid to the appellee the sum of $25 for a lot in said burial ground, and obtained a certificate therefor, in the form issued to lot-holders by the appellee, which was neither sealed, acknowledged nor recorded. The following is a blank form of the certificate issued to lot-holders in the burial ground:

No. --. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.

No _____.

This certifies, that _____ _____, the proprietor of Lot Number _____, in the Cemetery of the First Independent Church of Baltimore. Which lot is hereby granted and conveyed by said Church unto the said _____, heirs and assigns, forever subject to the regulations of the trustees.

Dated at Baltimore, this -- day of _____, 18--.

_____ _______, Chairman of the Trustees. _____ _______, Register.

The said Partridge, having obtained said certificate, caused to be constructed on said lot a vault, at a cost, as alleged, of some $1800; and in the course of time different members of his family were buried therein. The burial ground having ceased to be suitable for such purpose, the appellee, in July, 1871, filed its bill in the Circuit Court of Baltimore City, against Leonard J. Wyeth and others, for a sale thereof, under the Act of 1868, ch. 211, and a decree was passed on the 23rd of January, 1872, appointing trustees to sell said burial ground. In this decree it was provided, that "before proceeding to make such sale, the said trustees shall be satisfied, and they shall so state on oath in their report of sale, that the remains of all persons interred in said ground, as far as it be possible to ascertain them, have been decently removed and re-interred elsewhere; and it is hereby ordered that such removal and re-interment shall be made at the proper cost and expense of the complainant except in cases where parties interested may desire the same to be done under their own direction and at a greater cost than that for which it could be decently done by the complainant, in which case the difference in the cost growing out of such desire shall be borne by the person or persons desiring the same to be done." The duties thus imposed on the trustees were carefully performed. Months before the filing of the bill by the appellee, the appellants removed from their lot the remains of their dead interred therein but the empty vault was not removed, and at the time of the sale of the cemetery, was expressly reserved by the trustees with the right to the appellants to remove the same from the premises. The appellee was ready and willing to pay to the appellants the sum paid by them for their lot. The auditor having stated an account, awarding to the appellee the net proceeds of the sale of the burial ground, the appellants filed a petition asking that the proceedings be referred back to the auditor with instructions to allow the petitioners such sum as would enable them to construct elsewhere a vault similar to the one which they had built in the cemetery of the appellee. It was agreed that this petition should be taken as if it had been filed before the auditor's report and account were finally ratified. The Court, after hearing, passed an order dismissing the petition; from this order the present appeal was taken.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY and ROBINSON, J.

George C. Maund, for the appellants.

An examination of the case of Kincaid's Appeal, 66 Penn. St., 420, which the Court below adopted as decisive of this case, will show that the principles therein decided, do not so much as touch the question raised by this appeal.

Kincaid's appeal was the case of an application for an injunction to prohibit the sale of a burial ground in which the petitioners for the injunction denied the very thing which the petitioners in this case admit, to wit: the right of the church to make sale of the burial ground; so that the right of a lot-holder to compensation out of the proceeds of sale (the only question in this case) was not considered at all in Kincaid's appeal. And it will be found that any incidental allusion by the Court in that case to the question of a right to compensation, favors, rather than otherwise, the claim of the petitioners in this case. The right to indemnity or compensation is expressly recognized as existing, in certain circumstances. See Cooper vs. First Presbyterian Church, 32 Barb., 227-230; Daniel vs. Wood, et al., 1 Pick., 102; Gay vs. Baker, 17 Mass., 435; Washburn on Easements, 515.

But any objections, founded upon the general principles of law, which could be urged against the claim of these petitioners have been removed by the distinct provisions of the Act of 1868, ch. 211, under which the proceedings for the sale of the burial ground, in this case, were instituted.

That Act provides, by its first section, "that upon any bill being filed for the sale of any ground dedicated and used for the purpose of burial, in which lots have been sold and deeds executed, or certificates issued to the purchasers of such lots," the Court may under the circumstances therein stated, "forthwith pass a decree for the sale of the same upon such terms as it shall deem proper, and shall distribute the proceeds of sale among the parties interested according to their several interests, as the same shall be shown to the Court." This statutory language fully sustains the claim of the appellants.

Frederick J. Brown and Arthur Geo. Brown, for the appellee.

A right of burial is simply an easement in, not a title to, a freehold, where the general property in the land belongs to a religious society--even in cases where such title is acquired by a formal deed. Howard vs. First Parish in North Bridgewater, 7 Pick., 138; Washburn on Ease. & Serv., 515; Richards vs. The Northwest Protestant Dutch Ch., 32 Barb., 42; Wentworth vs. First Parish in Canton, 3 Pick., 346.

When such an inevitable disturbing cause as the growth of a city renders such a burial ground unfit for the purpose for which it was intended, and public health or convenience requires the removal of its dead, the lot-holders are not entitled to share in the proceeds of sale, for the same reason that they could not be called on to contribute towards any loss that might be suffered by the corporation owning it, in consequence of a depreciation from any cause in the value of the land or a loss from its sale. Kincaid's Appeal, 66 Penn., 420; Windt vs. German Reformed Ch., 4 Sandf Ch, 471.

In no event could a lot-holder be entitled to receive out of the proceeds of sale more than the sum originally paid by him. If, besides, he must be paid the cost of any monument which he may have erected to gratify his own taste or vanity, one rich man might easily render impossible the sale of any cemetery. Thus the contract made with a poor lot-holder who could afford no monument would be very different from that made in consideration of the payment of...