Opinion
12833
February 11, 1930.
Before GRIMBALL, J., Charleston, October, 1928. Affirmed.
Suit by E.L. Meyer and others against Christ Church and others. Decree of dismissal, and plaintiffs appeal.
The decree of Circuit Judge Grimball is as follows:
The above matter comes before me by summons and complaint filed on behalf of certain members of the congregation of Christ Church, Charleston, asking that the church and vestrymen be enjoined from proceeding with the steps incident to the proposed change of name of said corporation to Saint Peter's. The facts in this case are not in dispute, and this suit involves only a construction of the deed of trust and contract below set forth and their effect upon the title to the lot of land upon which the present church building stands.
The facts as thus presented are as follows:
On February 22, 1823, Sophia Frances Shepard joined in a deed of indenture with Nathaniel Bowen, bishop of the Protestant Episcopal Church in South Carolina, and rector of Saint Michael's Church, Christopher E. Gadsden, rector of Saint Philip's Church, and Christian Hanckel, rector of Saint Paul's Church, by which she conveyed to them the lot of land involved in these proceedings, upon which now stands the church building known as Christ Church, and upon which it is proposed to erect a church building to be known as Saint Peter's Church. The habendum with conditions attached and warranty in said deed is as follows:
"To have and to hold the said premises above described with all and singular their appurtenances unto the said Nathl. Bowen, Christopher E. Gadsden and Christian Hanckel and their successors in office forever.
"In trust nevertheless for the following uses, intents, and purposes that is to say in trust for the sole and separate use, intent and purpose as a site for the erection of an Episcopal Church and as a cemetery or burial place attached to the said church and to and for no other use, intent, or purpose whatsoever. Provided always nevertheless and it is the true meaning and intention of the said parties that the said Sophia Frances Shepard doth and shall hereby reserve to herself, her heirs and assigns a square of thirty feet within in the said land thus released as a family burial place and also that as soon as the said Episcopal Church shall be erected on the said intended site the said Sophia Frances Shepard, her heirs and assigns shall have and be entitled to the first choice of two pews in any part of the said church and the said Sophia F. Shepard for herself, her heirs and assigns doth hereby warrant and forever defend the said premises with all and singular their appurtenances unto the said Nathl. Bowen, Christopher E. Gadsden and Christian Hanckel, and their successors in office against herself, her heirs and assigns and against all other persons whomsoever lawfully claiming, or to claim the same."
On the same day the following agreement was entered into between Sophia Frances Shepard and the parties named as trustees in the aforementioned deed:
"State of South Carolina: Whereas the said Sophia Frances Shepard is desirous of naming the said church to be erected on the site within released by her it is therefore expressly understood and agreed upon between the said parties that when ever the said church shall be erected on the said site it shall be known, designated and called by the name of Christ Church and by no other name or appellation.
"In witness whereof, the said parties have hereunto set their hands and seals on the day and year within mentioned. It is further understood that the said church shall conform to the Rites and Ceremonies of the Protestant Episcopal Church in the United States of America.
"Sophia Frances Shepard (L.S.) "N. Bowen (L.S.) "Christr. E. Gadsden (L.S.) "Christian Hanckel (L.S.)
"Signed, sealed and delivered in the presence of
"Alexr. R. Wilson
"Lionel H. Kennedy."
Both the deed and the contract were recorded in the R. M.C. office for Charleston County of February 22, 1823, in Book M, No. 9, Pages 49 and 51, respectively, but separate notes of entry were made upon the record.
Subsequently, Christ Church, Charleston, was created a corporation by the Act of the Legislature of the State of South Carolina, and a church building was erected upon said lot, which has ever since been known by the name of Christ Church.
Saint Peter's Church was a Protestant Episcopal Church which stood on Logan Street, in the City of Charleston, South Carolina. This church building was destroyed by fire in 1861. Subsequently, the bricks from this church were sold by vestrymen and the funds reinvested and allowed to accumulate with the interest until they now amount to more than Fifty Thousand ($50,000.00) Dollars. In 1927 there being no congregation existing for the said Saint Peter's Church, by an Act of the Legislature (35 St. at Large, p. 775) the charter of the said church was amended and renewed, and under the provisions of said charter as amended it was provided as follows:
"All the temporal interests and affairs of this church shall be governed and controlled by seven vestrymen and two wardens, to be elected annually on Easter Monday; the election to be held by such persons as shall be appointed by the vestry; and no person shall be eligible to the office of warden or vestryman unless he be a member of the congregation, and be contributing to the support of the church; and in case of any failure to make an election, the vestry and wardens then in office shall hold over until a new election, and shall have the power to fill any vacancy or vacancies by the election of such person or persons as they may think suitable without restriction, and the person so elected shall have all the powers of vestrymen and wardens of said church and shall hold office until a new election by the congregation. That upon approval of this Act the vestry and wardens of said church then holding office and exercising the duties thereof, be authorized and directed to give notice to be published in one of the newspapers of the City of Charleston once a week for three successive weeks; that at a place within said city, and on a day and at an hour fixed by said officers at least three weeks from the last day of said publication and election will be held for the election of a new vestry and wardens of said church and for the reorganization thereof, and that at said election and reorganization all communicants of the Episcopal Church, who are residents of the City of Charleston and of legal age, of both sexes, who shall have signed a written declaration to be prepared by said vestry and wardens then in office, that they do each of them, by such signature, become members of said congregation under the terms of this amendment, and the said members shall thereby become members of said congregation without forfeiting his, her or their membership in any other congregation or congregations of which they may be a member or members, and the election by them at said meeting of a new vestry and wardens shall constitute the reorganization of said church in all respects and with all the powers of a vestry and wardens elected under the said amended charter of said church.
"The corporation hereby created are hereby vested with all the powers and authorities which are vested in any Episcopal Church in this State. That the said corporation when so reorganized shall, in addition to all of the powers hitherto possessed by them, have the power to rebuild the church or buildings at the place where the same stood previous to the burning down of the same, or to merge the said corporation with any other corporation of an Episcopal Church in the said city: Provided, That the name of St. Peter's Church shall be preserved in such merger, either as the whole of or a part of the name of said new corporation; and that upon said merger all the missionary and trust funds now possessed by said St. Peter's Church, Charleston, and all other property, real or personal, thereto belonging, shall be vested in said new corporation resulting from said merger in all respects as though said new corporation had been the original corporation of St. Peter's Church, Charleston; until a congregation is organized under the terms of said amended charter, to which this Act is an amendment or until a merger shall be completed with any other Episcopal Church in the city."
A congregation and board of vestrymen of Saint Peter's Church having been organized in accordance with said Act, amending and renewing the charter, at a meeting in which all of the Protestant Episcopal Churches of the City of Charleston were represented, it was decided to offer to Christ Church, Charleston, which church possesses only a small wooden building in the upper wards of the City of Charleston, the said funds of Saint Peter's Church, under the terms of the amended charter above set forth, containing the condition that they assume the name of Saint Peter's Church, Charleston; that Christ Church, its wardens and vestrymen, have agreed to accept said funds and by resolution have authorized the application to the State Legislature, changing the name of said church to that of Saint Peter's. This action is brought for the purpose of determining the right of Christ Church, Charleston, to change its name to that of Saint Peter's, and to erect a new church building upon the lot of land referred to above to be known as Saint Peter's Church, and to be substituted in the place of the present wooden church building now upon said lot known as Christ Church.
Mrs. Sophia Frances Shepard has no lineal descendants living, and the attorneys have been unable to ascertain who are the present persons interested as devisees or distributees of her estate, but John Doe and Richard Roe have been made parties and served by publication to represent this interest, if any. No one has appeared to assert any claim in their behalf, and they are now in default.
It is urged on behalf of the plaintiffs that the contract above set forth should be construed in connection with the deed to work a dedication of the lot upon which the present church building stands, binding the church as a corporation and its officers, wardens, and vestrymen for all time to call any church building which may be erected upon the lot referred to by the name of Christ Church, and no other appellation.
In Corpus Juris, Vol. 18, p. 38, a dedication is defined to be the appropriation or gift by the owner of land, or of an easement therein for the use of the public. The attaching of a name can hardly be construed as a gift to the use of the public. The deed contains the provisions of a valid dedication of the lot of land to a religious use, and is complete within itself. A dedication once made and accepted cannot be revoked or changed by the dedicator, and even a contract such as that involved in these proceedings cannot vary the terms of a dedication once made and accepted, for the interests of the public having once vested, the trustees are without power to alter it. In the present case they appear to have signed the contract as individuals. If the deed and contract were delivered simultaneously, the provisions of the contract would presumably have been incorporated in the deed. This not having been done, admits of two conclusions, either the giver of the church lot intended the contract as applying only to the particular church building about to be erected and for this purpose considered a contract with the individuals in whose charge the property was placed as sufficient or as an afterthought after delivery and acceptance of deed of dedication she attempted to change the terms of the dedication by a contract.
In either event, the lot of land would not be bound by a condition that at no future time could a church building be constructed upon same to be known by any other name than Christ Church.
I think it may be safely inferred that the grantor of the land would not wish to impose upon the church, which she was so largely instrumental in establishing, a permanent condition which would so seriously handicap its growth and expansion and besides, under the following line of decision, it is apparent that a contract such as this is complied with and satisfied by the construction of a church building with the intention of its being named Christ Church, and the compliance with the condition of that name for one hundred years, and until it has become apparent that for the advancement and growth of the church, a new building be erected on the lot to be known as Saint Peter's Church.
"A contract will not be construed as imposing a perpetual obligation when to do so would be adverse to public interests." 13 Corpus Juris, 606.
"Where a city donated its bonds and land to a railroad company in consideration that the company would permanently establish its eastern terminus and Texas office, and establish and construct its main machine shops and car works, at said city, to which the company agreed, the essence of the contract is that this should be done in its process of construction, with the purpose that it should be permanent. * * *
"Such contract is satisfied and performed when the company establishes and keeps a depot and sets in operation car works and machine shops and keeps them going for eight years, and until the interests of the company and of the public demand the removal of some or all of these subjects of the contract to another place.
"This was the fair meaning of the words `permanent establishment,' as there was no intention, at the time of making the contract, of removing or abandoning them; the word `permanent' does not mean `forever,' or existing forever." Texas Pacific Railway Co. v. City of Marshall, 136 U.S. 393, 10 S.Ct., 846, 34 L.Ed., 385.
"An agreement by a railroad company, with one owning land adjacent to its track, that, if he would build a coal tipple and a trestle therefrom to its tracks, it would construct a switch thereon, and thereafter deliver coal to him there, does not contain an implication that the switch shall be perpetual." Jones v. Newport News M.V. Co. (C.C. A.), 65 F., 736.
I find, therefore, that the terms of the contract have been satisfied. That it is for the benefit of the public interested under the terms of the gift from Mrs. Shepard that the defendants be permitted to change the name of the church corporation to Saint Peter's Church, and to call the new church building to be erected upon the lot of land referred to herein, by the name of Saint Peter's Church, and that the defendants herein are within their rights in proceeding to change the name of said church corporation and to construct upon said lot of land another church building to be known as St. Peter's Church, in place and stead of the building now standing upon same, and it is
Ordered that the prayer of the complaint filed herein be denied, and said complaint dismissed.
Messrs. Bussey Brown, for appellant, cite: Dedication once made cannot be revoked: 129 S.C. 89; 138 S.C. 343.
Mr. James B. Heyward, for respondents, cites: Construction of instruments: 84 S.C. 148; 124 S.C. 280; 148 S.E., 18; 5 A.L.R., 1495; 12 C.J., 606; 136 U.S. 393; 65 Fed., 736.
February 11, 1930. The opinion of the Court was delivered by
The Court is entirely satisfied with the circuit decree in this case, and it is accordingly affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.