Scott v. Stipe
| Decision Date | 24 May 1859 |
| Citation | 12 Ind. 60 |
| Parties | Scott v. Stipe and Others |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is reversed with costs. Cause remanded for further proceedings.
I Naylor, for appellant.
Counsel for the appellant cited the following authorities:
Breach of condition is a forfeiture of the estate, by which it reverts to the grantor, his heirs or devisees, free from intermediate incumbrances by lease, descent, grant, or devise; and the grantor has a right to re-enter, or to bring his action to recover the estate. Gray v. Blanchard 8 Pick. 284.--Jackson v. Topping, 1 Wend. 388.--Jackson v Pike, 9 Cow. 69.--Hayden v. Stoughton, 5 Pick. 528.--Police Jury v. Reeves, 18 Martin (La.), 221. Garrett v Scouten, 3 Denio 334.--4 Kent's Comm. 125, 126.--Cross v. Carson, 8 Blackf. 138.--Hefner v. Yount, id. 455.--Jackson v. Crysler, 1 Johns. Cases, 125.--Nicoll v. The New York and Erie Railroad Co., 2 Kern. 121.
S. C. Willson and J. E. McDonald, for appellees.
Suit to recover possession of real estate. Demurrer to the complaint, sustained. Judgment for the defendant.
It appears by the complaint, that on the 4th day of January, 1834, James Scott, Jr., and Mary, his wife, executed a deed for the piece of land sought to be recovered in this suit to "Guardis R. Robins, Christopher Fullender, and James A. Thompson, trustees of the Bethel Presbyterian Church, the members of which live in the said counties of Boone and Montgomery, in the state of Indiana, and their successors in office." The consideration of the deed is stated to be, "the respect the grantors have for the institution of Christianity, and that the said Bethel church may have a suitable place for erecting a house of worship." The deed further recites that, "it is understood to be a part of the agreement between the parties, that at any time when the house which may be erected on said tract of land shall not be occupied by the Presbyterians, any minister of the Gospel, of the Baptist or Methodist churches, shall have the privilege of using it as a house of worship; and also, if the neighborhood around should wish to build a school-house on said lot, the privilege shall be granted." The grant is, "to the use of the said trustees of the Bethel church, and their successors in office forever."
It further appears by the complaint, that the grantees erected a house for worship, on the lot, which was, for some years, thus used by the said Bethel church; but that, on the 24th day of March, 1853, the then trustees of that church, sold the lot and the house of worship erected upon it, to John Stipe, who thenceforward occupied the same as a store-room, and for other business of a secular character.
Upon these facts, it is very evident that the lot in question was granted in trust for a pious or charitable use, and that the trustees had no power to sell it without the consent of the grantor or his heirs, he being dead, and the members of the Bethel church. See The Town of Pawlet v Clark, 9 Cranch 292 (3 Cond. R. 418), where the learning upon grants of this description is collected by Judge Story. See, also, Sweeney v. Sampson, 5 Ind. 465, and cases cited. The members of the Bethel church might have caused such a transfer of the property to be restrained by...
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