Chapter XX. Pews

237. Sold, Rented.—Prior to the Reformation pews were not sold nor rented and every member had the right to sit wherever he pleased in the body of the church. After the Reformation, the ordinary or bishop was granted the right of “faculty” to rent or sell pews.424

238. Incorporeal Hereditament.—The English title in a pew is in the nature of a right of way through another's land; it is an incorporeal hereditament. In the absence of express law, the title to pews in this country is said to be in the nature of real estate, and in fact not very different from the English title.425 In some States the title is made personal property by statute.426 And in others the courts have inquired into the law of the church and adjudged the title accordingly.427 The general rule is that [pg 136] the owner of a pew simply has an easement.428

239. Catholic Church, Pew Rights.—In the Catholic Church, by the canon law, the ownership in or control over a pew is forbidden to laymen. Notwithstanding that, if the party holding the title violates the rule of the church by giving a deed to the pew-holder, the courts would probably sustain his title.429 However, as the clergy can neither rent nor sell pews without becoming subject to the law of the land and the jurisdiction of our courts, it is important to know what the law of the State is.

240. Land, Use, Rent Pews.—Where land was conveyed in trust to the bishop of a diocese and his successors for the erection of a church for the use of a congregation, the right to rent pews vested under the deed and laws of the Catholic Church in the parish priest and not in the trustees afterward elected, as the parish priest was the agent of the bishop.430

241. Trustees, Sale in Perpetuity.—Without authority of law the trustees of a [pg 137] church can not make an absolute sale in perpetuity of a pew without any reservation of rent.431 The sale of a pew in a church will be determined in a case according to the particular facts.432

242. Pew, Right to Occupy, Conditions.—A grant of a church pew in perpetuity does not give the owner an absolute right of property as a grant of land in fee; but gives only a right to sit therein, although he may maintain an action in court for protection of his rights.433 In Vermont a pewholder has only the right to occupy his seat during religious services and holds it subject to the superior right of the society owning the pew.434 A condition in the deed to a pew that a holder about to leave the congregation shall offer it to the society for a certain price, is not invalid.435 Where a pewholder held his pew by a certain agreement and after the church had been remodeled he bought a different pew, the conditions attached to the first pew did not apply to the last.436 Pews owned by the occupant pass to the heirs as real estate instead of [pg 138] going to the executors as personal property in States where the title is in the nature of the title to real estate.437

243. Tax, Assessment.—A tax assessed upon the pew of a religious corporation in part for purposes not specifically named in a deed of the pew, which alone gives the power to make such an assessment and which strictly defines and limits such power, is invalid in toto.438 The right to make an assessment on pews must be founded upon law, else it can not be enforced.439 When a congregation sells pews at auction rent free for the purpose of building a church, it has no power thereafter to assess the pews for the salary of the minister.440

244. Pewholders' Rights.—A pewholder has the exclusive right to occupy his pew when the house is used for the purpose for which it was erected; but he can not convert his pew to other purposes not contemplated.441 If he has paid his pew-rent according to agreement, he is entitled to use his pew on all occasions when the house is occupied, even when it is open for purposes different from those mentioned in the conveyance [pg 139] thereof; and he has the right to exclude all others from his pew by fastening the door or otherwise, and any one who enters his pew knowing the facts, is a trespasser and liable to an action for damages.442 The owner of a pew has no right to put an offensive covering thereon nor use his pew in any way to the annoyance of the congregation or not in keeping with the place and conditions. By placing anything offensive about his pew, he may be liable for maintaining a nuisance, and such offensive thing may be removed; but, as far as possible, it must be removed without damaging the pewholder's property.443

245. Rebuilding, Remodeling.—An injunction was granted on the bill of pewholders, restraining the authorities of the church from pulling it down, as they were going to use the materials in the erection of a new church on a different site. On the answer, the injunction was dissolved on the ground that if the complainants had rights which would be violated, there was a remedy at law and that the nature and extent of the injury were not such as called for the interposition of [pg 140] a court of equity by injunction.444 Where a parish abandons an old church and builds a new one it does not become liable to any pewholder for damages by reason thereof unless it has acted wantonly or intentionally to injure the pewholder.445 But when it becomes necessary for the purpose of repairing or remodeling a church, to destroy old pews, a pew built by a member under contract with the church can not be removed or destroyed without compensation.446 Pew rights are subject to the right of the parish to pull down and rebuild a church either as a matter of necessity or expediency, but in the latter case the owner of a pew is entitled to payment.447 A pewholder has only the right to occupy his pew during public worship, and when the church has become so out of repair that it can not be used for public worship, the owner of a pew can recover only nominal damages for injuries to his pew.448

246. Selling Pew on Execution.—In an action to recover the value of a pew sold at auction, the merits of the case will be tried according to the law of the land.449 It is [pg 141] doubtful whether a pew in a church can be sold for private debts of the pewholder.450 It depends somewhat upon the title and State law of exemptions.451 To render an attachment of a pew valid, it is not necessary for the officer to come in sight of the pew or even to enter the church.452

247. Members, Pew.—Members of the congregation may be required to pay for a pew or sitting in the church, and where a priest ejected a member from the church because he would not rent a pew, he was sustained by the court.453

248. Free Church, Seats, Lease.—The trustees of a free church may assign seats and forcibly remove one from a seat without authority.454 Where a pew is real estate, a pewholder may acquire the right to it by prescription in the usual way.455 Where pews are not rented and the members support the church by voluntary subscriptions, they have equal right to the occupancy of the pews. But where the church builds the pews and rents them, a man paying rent for a pew holds it under lease in the nature of a lease to real estate. However, he does [pg 142] not obtain all the rights of a lessee of land, and in many cases a rule of the church governs the holding of pews, which will be observed by the State courts.456

249. Executors, Pew-Rent.—The executors of a pew owner are not bound to pay pew-rent accrued after the owner's death.

250. Voting, Pew-Rent, Arrears.—Where a church is incorporated and by its charter or the laws of the State it has authority to make reasonable by-laws, a by-law which prohibits any person from voting whose pew-rent is in arrears for more than two years, is valid.457

[pg 143]

Chapter XXI. Property

251. Unincorporated, Trustee.—The question whether an unincorporated religious society may take a gift or devise, is determined by the law of domicile.458 Generally an unincorporated religious association can not hold property in its assumed name, but it must be held by conveyance in trust to a trustee named.459

252. Charter, By-Laws.—When the charter or by-laws of a church corporation provide that they may be altered, such changes may, after the execution and delivery of a deed, immediately adhere to the title.460

253. Suits, Corporation, Members.—Cases may occur in which the corporation in its corporate capacity, or the society in its collective capacity, may be a plaintiff or a defendant in a suit between it and one or [pg 144] more members of the religious society in their individual capacity or in their collective capacity, in a quasi-conspiracy or concerning other torturous acts, or a collective contract.461

254. Deed, Court, Title.—A deed made in pursuance of an order of a court having jurisdiction passes good title.462

255. Subscription, Lots.—Any one may convey title to a church as his part of the subscription by merely marking it on a plat made by him, as lots donated to such church.463

256. Misnomer, Identity.—The misnomer of a religious society or corporation will not invalidate a mortgage where the identity of the society can be clearly shown.464

257. Adverse Possession, Color of Title.—A religious corporation may obtain title to land by adverse possession. The length of such possession is determined by the laws of the State, the usual period being twenty years.465 Unless the laws of the State require it, color of title at the time of asserting adverse possession need not be shown.466

[pg 145]

258. Sale, Restrictions.—In some States when not restricted by the laws of the organization the parish corporation may sell the premises in order to pay the church debts. However, it is not a common law right.467

259. Deed.—A deed to “The Evangelical Order of Christians” was sufficiently definite for a valid conveyance.468

260. Error.—A clerical error in the name of the grantee will not make a deed void. However, when such error has been discovered, it should be corrected.469

261. Mortgage, Bishop, Debts.—The archbishop of a church to which property is bequeathed, can not mortgage it without authority from the church or under the law.470 Also, the bishop of a diocese to whom land had been conveyed in trust for a particular congregation, could not execute a valid mortgage thereon to secure his own indebtedness.471 But a religious society in the absence of prohibitionary legislation, has power to mortgage its property to secure its debts.472

[pg 146]

262. Deed, Trust, Fee.—A deed of land to a Catholic bishop and his heirs and assigns forever in trust for a Catholic parish for the purpose of a free burial ground, gave the bishop an estate in fee.473

263. Debts, Creditors.—A committee of a religious society authorized to sell lands to raise money to pay its general debts, is not authorized to execute a mortgage for the purpose of securing various creditors holding claims; and the defect in such mortgage is not cured by a vote at a subsequent meeting to which the committee made a report of its action.474

264. Mortgage or Sale, Notice, Consent.—Whenever there is to be a mortgage or sale of the church property, if it is to be done by the corporation, it must be done strictly in accordance with the charter and laws of the corporation, and if those do not provide therefor, every member should receive a reasonable notice to attend a meeting of the congregation and the question should be submitted to such meeting and a vote taken thereon. If all the proceedings are regular and the proper officers (president and secretary) of the corporation be authorized [pg 147] to make a conveyance, it is good in law.475 However, if the irregular acts of officers or members of a congregation are subsequently ratified in a lawful manner, they become binding.476 When consent of the court is required, it must be obtained.477

265. Title, Taxes, Judicial Notice.—If the title is in the bishop in fee in accordance with church law it is not “owned by any religious association” and is liable for taxes. The laws of the Catholic Church are not the subject of judicial notice, but must be alleged and proved as any other fact.478

266. Title, Diocese, Rule.—Where the title to the property of the diocese was in the bishop for the use of the church and subsequently the diocese was incorporated, the bishop was not divested of title and it was still necessary to have the property conveyed by deed.479 In some other States, however, the contrary rule prevails.480

267. Priest, Deed, Funds.—Where it was claimed that a priest purchased lands and took the deed in his own name and paid [pg 148] therefor with funds belonging to the congregation, the conveyance will not be decreed by the court only upon the clearest and most satisfactory evidence.481

268. Monks, Missions, Title.—The fact that the monks or priests were at the head of the missions in California when it was acquired by the United States, does not prove that the Catholic Church had universal ownership of the property.482 The acts of Congress giving the city of San Antonio authority to sell public lands, was intended, no doubt, to dispose of mission property, but it was held not to affect the Catholic Church, the title to which had been confirmed by another act of Congress.483

269. Texan Revolution, Land.—At the time of the Texan Revolution, a Catholic church held no real estate of perfect title, but enjoyed only the use of the land that it possessed and continued so to occupy after the admission of Texas into the Union.484

270. Priest, Agent, Deed.—The priest in charge of a congregation is the agent of the archbishop, and where the title to the real estate is conveyed by absolute deed to the bishop, the congregation, against the [pg 149] protest of the priest and without obtaining leave from the bishop, has no right to tear down a church for the purpose of rebuilding or repairing it.485 And a priest in charge of mission property may maintain in his name an action to recover its possession.486

271. Devise, Uncertainty.—A devise of property “to the Roman Catholic Orphans” of a certain diocese, making the bishop of the diocese executor of the will and giving him power to sell the property and use the proceeds for the benefit of the Roman Catholic orphans, is void for uncertainty.487

272. Donor, Ambiguous Provision.—The religious convictions of the donor may be shown for the purpose of construing an ambiguous provision of a deed or will.488

273. Trust, Evidence.—Without any trust being declared in writing, parol evidence can not be allowed to prove that the Catholic Church and parsonage is held in trust for the congregation by the bishop of the diocese, notwithstanding that the moneys for purchasing the lands and putting up such buildings were collected by subscriptions and contributions made to the priest in charge under the law, usage, and [pg 150] polity of the Roman Catholic Church.489 At common law land may be granted to pious uses before there is a grantee to take it. In the meantime, the title is in abeyance.490 Where the title to parsonage lands is in the minister as a sole corporation, on his death the title remains in abeyance until a successor is appointed.491

274. Money, Control.—Money raised by a Catholic congregation for the purpose of building a church does not come under the absolute control of the bishop or priest, although put into the hands of the latter for safe keeping. It is subject to the control of the congregation, although the members of the congregation refused to obey the command of the bishop of the diocese to consolidate with another church to which the priest was removed.492

275. Church, Building, Removing.—Where subscriptions were secured to build a church at a particular place as a memorial to a certain person, a congregation may be enjoined from tearing down the building and removing it to another place.493 But a court of equity will not prevent the removal [pg 151] of a church where a majority of the congregation favors it, although a legal meeting had not been held to determine the matter.494

276. Church, Use, Division.—A church guild that erected a building adjoining a church for parish purposes, with the assent of the congregation, can not deny the authority of the church and use the building for other purposes.495 But if members are improperly excluded from the use of the church property they must appeal to the courts for redress and can not resort to acts of trespass to gain entrance into a church.496 A court of equity will compel persons having charge of the temporalities of a church, whether incorporated or not, to faithfully perform their trust and to prevent the diversion of the property from its original purposes. The court will not interfere in strictly religious matters.497

277. Spanish Territory.—When Alabama was a part of Spanish territory, a deed of land “to His Catholic Majesty for the [pg 152] purpose of building thereon a parochial church and dwelling-house for the officiating priest,” the money being paid out of the royal treasury, did not constitute the King of Spain a trustee for the church or transfer to the church in equity a title to the lots.498

278. Trust, Purposes, Doctrines.—When a conveyance of a lot is made to certain persons of a religious society and their successors in trust for religious purposes, all the members become beneficiaries in equal degree notwithstanding some of them may have contributed larger sums than others.499 Land conveyed to a church for valuable consideration belongs to the church, whatever change may take place in its religious doctrines; and if a minority secedes on the ground that they are the ones who retain the original tenets of the church, they can not take with them either the whole or pro rata share of the church property.500

279. Control, Revenues.—The trustees of a corporation of a church or of a religious society have entire control over the revenues of such body.501

[pg 153]

280. Leave to Purchase, Title, Canons of the Church.—A congregation wanted to buy a church and priest's house, but the archbishop refused leave to purchase, but granted permission to keep the premises for religious purposes for a time. The members formed a society and bought and took title in the name of the “Lithuanian Benefit Society of St. Anthony.” Then the archbishop wrote them a letter requiring the deed of the premises to be put in his name, which the congregation refused to do. A part of the congregation brought a suit in equity to enforce the transfer from the society to the archbishop. The court held that if the congregation was under the church and acknowledged its authority, the title must be settled by the canons of the church; otherwise, the majority of the congregation, in a duly called meeting, should determine where the title should be vested.502

281. Cemetery, Authority.—When a congregation that had title to a cemetery for many years entrusted the management and sale of the lots to the priest, he had thereby authority to create servitudes, such as alleys to lots, which become binding on the congregation and all third persons.503

[pg 154]

282. Real Estate, Purpose.—A church has no power to acquire and hold real estate for any purpose other than that of promoting the object of its creation, and any contract entered into for a purchase of real estate as a matter of speculation is ultra vires and void.504

283. Limitation, Lands.—A statute of the State prohibiting a religious society from holding more than twenty acres, applies to a single parish or congregation and not to the entire denomination when it consists of more than one congregation.505

284. Conditions, Bequest, Deed, Time.—Where property has been devised for a particular purpose or on certain conditions attached thereto, the law may be invoked to protect the fund according to the bequest.506 And where a deed contained a clause that the lots should never be sold nor used in any other way except for the benefit of a specified Protestant Church, although the deed contained no clause of forfeiture, when the congregation sold the property the grantor was entitled to have the deed set aside and the title re-vested in himself.507 And a grant [pg 155] made upon condition that a church be erected thereon, prevents the grantee from conveying it for other purposes without the consent of the grantor or his heirs.508 But where a devise was made on condition that a church be built on the property within three years, the provision being a condition subsequent, a court has the right to extend the time.509

285. Will, Forfeiture.—The provision in a will or deed that land shall be used for purposes of a certain church, may create a trust for the benefit of the church only and not a condition the breach of which would work a forfeiture.510 When a condition is put in a deed that it shall be forever used as a burial ground for the interment of bodies, it is doubtful whether the grantor and grantee together may change the uses of the property. Therefore, it is important in taking deeds to cemeteries to have no condition whatever, unless such conditions are desired.511

286. Condition, Quit-Claim.—After conveying land upon a specified condition, the grantor then gave a quit-claim deed, and the [pg 156] court held that that relieved the grant from the condition.512

287. Bishop, Trust, Successors.—A deed of land to the bishop of a church for a Protestant Episcopal church in fee simple, created a trust and on the death of such bishop the title passed to his successors.513 Where a grantee in a deed absolute on its face, is in fact archbishop of the Roman Catholic Church for his diocese, its canons and decrees regulating the mode of acquiring and holding church property are competent evidence to show that the property is so held in trust for purposes for public worship and other charitable uses. And property so held by a Catholic bishop in trust for the diocese, or in trust for a congregation, school, cemetery, or asylum, for the separate use of each, is not chargeable with any part of the expenses of another one or for improving the church property generally in the diocese.514

288. Trustees, Vacancy.—When land is conveyed to certain persons as trustees of a church and their successors lawfully appointed, a court of equity will not step in to fill a vacancy but will leave that to be filled [pg 157] by the church in accordance with its discipline.515 But an attempt to sell real estate of a religious society against the provisions of its charter, will be prevented by a court of equity.516

289. Church, Majority, Change.—When property is conveyed to a church having a well-known doctrine, faith, and practice, a majority of the members has not the authority or power by reason of a change of religious views to carry the property thus dedicated to a new and different doctrine.517

290. Title, Harmony, Division.—The title to church property in a divided congregation is in that part of the congregation which acts in harmony with the law of the denomination; and the ecclesiastical laws and principles which were accepted among them before the dispute began, are the standard for determining which party is right.518 In other cases the division of church property, where there is a division of the congregation, depends upon its particular facts.519 Where $400 was bequeathed to a Lutheran [pg 158] congregation in S——, there being at the time of the making of the will but one Lutheran congregation in the place, but subsequently a majority of the trustees and members with the pastor left the church and built a new one, the old church continued vested with the title to the property and all its funds.520

291. Perversion, Misuse, Suit.—Unless there is substantial departure from the purpose of the trust which amounts to a perversion of it, a court of equity will not interfere to prevent the misuse or abuse of a trust of a religious nature. In actions in the State court, if the church is not incorporated, an action should be brought in the names of the members collectively, and if they are too numerous to be all named, the suit may be brought in the name of one or more of them for the whole. The same rules apply to religious societies when sued. However, in some dioceses, particularly in the Catholic Church, the title to the church property is in the bishop and he thereby becomes an interested party who must be made either a plaintiff or a defendant.521

292. Rights, Contracts, Torts, Crimes.—Vested property rights, contracts, torts, [pg 159] and crimes, are usually subject to the laws of the State and the control and judgment of a church tribunal is seldom final. While the State courts have no ecclesiastical jurisdiction and can not revise or question ordinary acts of church discipline, they have the power to adjudicate conflicting claims of parties to the church property or the use of it.522

293. Cemetery, Assessments.—Where a lot was bought for the purpose of building a church but was used for a cemetery, and a church was built at another place and the deed to the lot was taken in the name of the trustees, the pastor and a member of the church corporation were not the proper parties to bring an action to restrain the State from selling the lot to pay the assessments for pavement, as they had no legal or equitable interest for the protection of which they could claim the interposition of a court of equity.523

294. Burned, Revert, Vested.—The fact that a church on lands donated to the parish, on condition of sustaining the church, burned down, the title did not revert to the grantor's heirs.524 Also land granted a bishop for church uses, vested immediately in him [pg 160] and was not forfeited because it was not used for church purposes.525

295. Abandoned, Revert.—Land granted to trustees and their successors forever in trust to erect a Methodist church, according to its rules and discipline, which was used for such church for a long time and then abandoned and sold to parties who converted it into a blacksmith shop, did not thereupon revert in the absence of a provision to that effect.526

296. Uses and Trusts.—The chapter of the Wisconsin statutes on religious societies, although not included in the same title as the chapter abolishing all uses and trusts excepting as therein created, was not intended to prohibit the trusts expressly authorized by the former.527

297. Trust Funds, Account.—Where a member of the church received funds to invest in his own name for the benefit of the church, he will be obliged in a court of equity to give full account for the money and its profits.528

298. Fund, Diverted, Split.—A fund created for a particular purpose, as the education of children in the faith and doctrines [pg 161] of a denomination at the time the fund is created, can not be diverted from its original object.529 Neither can such a fund be split up when a congregation is divided, but must be retained as created.530

299. Church, Personalty.—A church removed from its foundation and put on rollers was severed from the realty and became personal property.531