Smith v. Thompson

• Decision Date: 09 December 1880
• Citation: 55 Md. 5
• Parties: THOMAS SMITH v. NICHOLAS THOMPSON.
• Court: Maryland Court of Appeals

55 Md. 5

THOMAS SMITH v. NICHOLAS THOMPSON.

Court of Appeals of Maryland

December 9, 1880

APPEAL from the Circuit Court for Frederick County.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., BOWIE, MILLER, ALVEY and IRVING, J.

Edward Y. Goldsborough and Charles W. Ross for the appellant.

William Ritchie and John Ritchie, for the appellee.

MILLER J., delivered the opinion of the Court.

This is an action of trespass quare clausum fregit brought by the appellee against the appellant for breaking and entering the plaintiff's burial lot, No. 19, in "The Laboring Sons' Cemetery." The trespass complained of is, that the defendant in June, 1879, dug a grave in this lot and buried therein the corpse of a child, without the plaintiff's permission or consent. The facts to be first stated are substantially as follows:

In 1839 an unincorporated voluntary association of colored men was formed under the name of "The Beneficial Society of Laboring Sons of Frederick." In 1851 or 1852, this society purchased a lot of ground in Frederick City from Ezra Houck. In the latter year, about one-fourth of this ground was, by order of the society, laid off into sixty burial lots, of twelve by sixteen feet each, and each of these lots was marked and indicated by four corner posts of white marble, with the respective numbers marked on the stones, which are still there and plainly visible. To each full member who had, at that date, paid up all his dues and fees, one of these burial lots was assigned. A plat was also made of the whole, on which was indicated the individual owner of each lot, according to the allotment and division then made, and lot No. 19 was thus assigned to the plaintiff, who had become a member of the society in 1846 or 1847, and had then paid up his dues in full. In August, 1854, a deed was executed by Houck, in lieu of one which had been previously executed, but which had been mislaid and lost before it was recorded, conveying the whole lot of ground to seven named parties, of whom the plaintiff was one, "and their heirs and assigns forever, in trust, that they, the survivors or survivor of them, and the heirs of such survivors or survivor, shall hold said property upon the trusts indicated and mentioned in the recital of this indenture." In the reciting part of the deed, after stating that the purchase money of $265 had been paid in full, and that the parties of the second part "now constitute the trustees of said Laboring Sons' Society," it is recited that "said society has laid off a portion of said ground as a burial ground, and have desired and directed said trustees to sell the residue to the best advantage for the use of said society." All the trustees named as grantees in this deed are now dead except three, Bowen, Probee and the plaintiff. After this allotment and division the plaintiff took such possession of his lot as the purpose to which it was devoted admitted of. In 1858 he buried his aunt there, in 1862 a relative of his wife, in the spring of 1864 his mother, and put up a tombstone for her and had the lot sodded, and in 1878 had this tombstone righted and repaired. It also appears that in 1861 a certificate was issued by order of the society to each of the parties to whom these lots had been so assigned, and the plaintiff received his, which is as follows:

"LABORING SONS' CEMETERY."

This is to certify, that Nicholas Thompson is the owner of lot No. 19 in Laboring Sons' Cemetery for which 10 dollars have been paid in full for said lot. In testimony whereof, the president of the trustees has hereunto affixed his hand and seal this 2d day of November in the year 1861.

" Robert E. Probee. [Seal.]"

" Test: Cyrus Bowen."

About these facts there is no dispute, and if there was nothing else in the case, there can, we think, be little doubt as to the plaintiff's right to maintain this action. The facts thus stated make a case where the trustees who held the legal title and were themselves members of the society, the cestui que trust, unite with all the other members who were fully competent to act, each for himself in the premises, in setting apart a portion of this ground for burial purposes, and in a voluntary parol partition of that part into separate lots clearly defined and bounded, and in the assignment of these lots severally to individual members, as their respective separate burial places, and this is followed by the separate possession of the individual owners, and the grant of a certificate by the order of the society itself, stating that each member is the owner of the separate place so assigned to him, and for which he had paid the price agreed upon in full. By virtue of these acts and proceedings we think it clear the plaintiff acquired the privilege and right to make interments in this lot, to the exclusion of others, so long as the ground remained a...