BEATTY V. KURTZ, 27 U. S. 566 (1829)

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U.S. Supreme Court

Beatty v. Kurtz, 27 U.S. 2 Pet. 566 566 (1829)

Beatty v. Kurtz

27 U.S. (2 Pet.) 566


A lot of ground had, in the original plan of an addition to Georgetown, been marked "for the Lutheran Church," and by the German Lutherans of the place, had been used as a place of burial from the dedication, and who had erected a schoolhouse on it, but no church exercising acts of protection and ownership over it at some periods by committees appointed by the German Lutherans, the original owner acquiescing in the same. This may be considered as a dedication of the lot to public and pious uses, and although the German Lutherans were not incorporated, nor were there any persons who, as trustees, could hold the property, the appropriation was also valid under the bill of rights of Maryland. The bill of rights, to this extent at least, recognizes the doctrines of the Statute of Elizabeth for charitable uses, under which it is well known that such uses would be upheld although there was no specific grantee or trustee. This might at all times have been enforced as a charitable and pious use through the intervention of the government as parens patria by its attorney general or other law officer. It was originally consecrated for a religious purpose. It has become a depository of the dead, and it cannot now be resumed by the heirs of the donor.

If the complainants in the circuit court were proved to be the regularly appointed committee of a voluntary society of Lutherans in actual possession of the premises, and acting by their direction to prevent a disturbance of that possession, under the circumstances of this case, there does not appear to be a serious objection to their right to maintain a suit for a perpetual injunction against the heirs of the donor, who sought to regain the property and to disturb their possession.

The only difficulty which presents itself upon the question whether the complainants in the circuit court have shown in themselves sufficient authority to maintain their suit is that it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, under all the circumstances it might be fairly presumed. But this is not necessary, because this is one of those cases in which certain persons belonging to a voluntary society and having a common interest may sue in behalf of themselves and others having the like interests as part of the same society for purposes common to all and beneficial to all.

The appellees filed their bill in the circuit court against Charles A. Beatty and John T. Ritchie, which states in substance that the late Colonel Charles Beatty and George Frazier Hawkins, in the year 1769, laid out on lands belonging chanrobles.com-red

Page 27 U. S. 567

to them, and adjoining the Town of Georgetown, a certain town known by the name of "Beatty and Hawkins' addition to Georgetown," the lots whereof were laid down and distinguished on a plot and disposed of by lottery. That Beatty, in laying out the said addition, distinguished and set apart a certain lot or portion of ground in the said addition for the sole use and benefit of the German Lutheran Church, declaring the same to be their absolute right and property, to be held by them for religious purposes and the use of said congregation and caused the same to be so entered and designated in the plot of said addition, as now appears by the plot and papers on record in the clerk's office for Washington, to which they beg leave to refer, which plot and papers were recorded under authority of the Act of Maryland, 1796, ch. 54, which lot is described in the said plot of said addition as the German Lutheran Church lot, and also in the general plot of the Town of Georgetown and its additions, deposited in the office of the clerk of the Corporation of Georgetown. That soon after the lots in the said addition were laid off and disposed of as aforesaid, the said lot was taken possession of by the said German Lutherans and was enclosed and a church erected thereon, and hath been kept and held by them ever since during a period, as they believe, of upwards of fifty years, and hath been used by them as a burying ground for the members of the said church, with the avowed intention of building thereon another church or place of worship, the building first erected being decayed, whenever their funds would enable them to do so. That during all this period, neither their possession nor title hath ever been questioned, and the lot has been exempted from taxation at their request by the Corporation of Georgetown as being church property. That Charles Beatty died about sixteen years ago, and without having made any conveyance of the said lot, and that Charles A. Beatty is his heir at law. They therefore pray that he may be made defendant and be compelled to convey the title to the complainants in trust for the German Lutheran Church.

They further state that the defendant John T. Ritchie, without any pretense of title, disputes the title of complainants chanrobles.com-red

Page 27 U. S. 568

and their right of possession, and has undertaken to enter on part of the lot and to remove tombstones, &c., and they fear that he means to dispossess them, wherefore they pray subpoena, &c., and that they may be quieted in their possession of said lot and that the defendant, Ritchie, may be enjoined from disturbing their possession, and for general relief.

The answer of the defendants in the court below admits that Charles Beatty, deceased, did designate a lot in his addition to Georgetown by inscribing on the plot thereof these words, "for the Lutheran Church;" that they always understood and believed that he meant by that inscription to manifest an intention to appropriate that lot to the use of the Lutherans, provided they would build on it within a reasonable time a house of public worship, which would conduce to diffuse piety, to enhance the value of his property, and to adorn his addition to Georgetown. But they deny that this inscription was ever meant or could be interpreted to be a contract with the Lutheran Church to convey to that body the property in question. That the writing itself could not operate as a conveyance, and there was no consideration to sustain it as a contract. They deny that Charles Beatty ever declared the lot in question to be the absolute right and property of the Lutherans, or did in any manner by means thereof hold out inducements to them or the public to purchase tickets in the pretended lottery mentioned in the bill or to purchase and improve lots in that part of the town. They aver that no church had ever been built on it, and that its occupation by graves and a schoolhouse was a use of it by no means beneficial to defendants or him under whom they claimed.

The answer denies the possession averred in the bill and also that there ever was an organized congregation of German Lutherans in Georgetown.

It avers also that the lot in question has remained unenclosed for at least three-fourths of the time since it became a part of Georgetown, and that the enclosures which occasionally surrounded it were not erected by the complainants nor those whom they pretend to represent. The respondents chanrobles.com-red

Page 27 U. S. 569

admit that the lot was used as a burying ground, but aver that it was thus used by Beatty's permission, and not exclusively by the Lutherans, but the public generally. But they further say that if the Lutherans had enjoyed the possession alleged in the complainants' bill, they might and should have enforced the rights thereby acquired at law, and ought not to have come into equity for a remedy. Finally, confessing that they had resumed possession of the property, they deny the authority of the complainants to act in behalf of the pretended German Lutheran Church, and pray the same benefit of these defenses as if they had been urged by plea to the bill.

The plaintiffs amended their bill by stating, the German Lutheran Church mentioned in their bill was composed of the members of the German Lutheran Church in Georgetown, duly organized as such; "that the lot was set apart by C. Beatty," from and out of that "part of the said land, composing said addition," of which he, the said Beatty, was seized.

"The said Beatty, by the said designation, declaration, and setting apart, holding out to the public, and to the German Lutherans particularly, inducements as well to purchase tickets in a lottery, by which the said lots were disposed of, as to purchase and improve that part of the town in other ways. And thereby meaning to transfer to the said German Lutherans, as soon as they should organize themselves into a congregation or church, all his right to said lot in fee, to be used for the religious purpose of such congregation or church, and thereby declaring that intention. That they organized themselves into a congregation or church and erected a church or house of worship on the said lot."

That the complainants and the congregation for whom they act have called upon C. A. Beatty and required a conveyance according to the promise and declared intent of the said Charles Beatty, deceased; that upon organizing the church or congregation aforesaid, certain officers, called a committee, were appointed to take charge of the concerns of the church, which appointments were from time to time made and renewed, and that complainants were appointed in 1824, and have continued to hold such appointment ever since. chanrobles.com-red

Page 27 U. S. 570

To those amendments the defendants answered and denied all the allegations in the amended bill.

It was in evidence that soon after this lot was thus set apart for the Lutherans, it was, with Colonel Beatty's permission, taken possession of by certain persons of that sect in Georgetown, who had a log house erected on it, which was called a church and used as such frequently, and also as a schoolhouse by the German Lutherans. That in the year 1796, a German minister came from Philadelphia and was employed by them, and preached in this house for three months, being employed and paid by the German Lutherans of Georgetown, and about the year 1799, the congregation of German Lutherans, of which Travers, the witness in this cause, was one, employed a German minister who officiated in said house for about nine months. Though divine service was frequently administered in that building, there was at no other periods than those just mentioned a stationed preacher who ministered to a congregation in regular attendance there except a Mr. Brooke, who was an Episcopal clergyman and who, Dr. Balch testifies, had possession of that building as a church in 1779. In the same or the following year, a steeple was erected on the said house, in which a bell was hung at the expense and by the direction of the German Lutherans of Georgetown. This building some years afterwards went to decay, and no church has been since rebuilt on the lot, though efforts have been since made for that purpose, and as late as 1823 a considerable subscription was raised, but not sufficient for the object.

During the whole period from 1769 to the bringing of this suit, the lot in question was generally under enclosures, put up at the expense of the Lutherans of Georgetown and under the care and custody of a committee appointed by them. It has been continually so enclosed for more than twenty years before the entry and claim set up by the defendants in this suit. The said lot has been also used by the Germans as a burying ground from the year 1769 till a short time before the bringing this suit, and has been called and known as the Dutch burying ground, and one of the witnesses, Styles, acted as sexton under the orders of the committee of the chanrobles.com-red

Page 27 U. S. 571

congregation. It does not appear that the German Lutherans in Georgetown ever were incorporated by law as a religious society.

It also appeared from the evidence that from the year 1769 till within a month or two before the bringing this suit, no claim to the possession or property in the lot now in dispute was ever set up by Col. Charles Beatty or by either of the defendants, but on the contrary, Col. Charles Beatty, up to the time of his death, always declared it to be the property of the German Lutherans of Georgetown; his administrator, Abner Ritchie, who, it is stated, sold all his lots in said addition left by him at his death, never claimed or offered to sell the lot in question as part of his property; that his son and heir the defendant, Charles A. Beatty, has repeated the same declarations to a witness, (Mountz) a few years before this suit; he expressed

"his surprise that the Germans had been so indifferent about getting their title to this property, as he was always ready and willing to give them a deed for it."

A witness, Mr. Rhaeffer, testified that in 1823 the defendant Beatty, in his presence, declared, "that the lot aforesaid was the property of the Lutherans, and that he was very anxious to make them a deed." He also confirmed the evidence of the other witnesses.

It also appeared from the evidence that since the year 1769, the said lot has never been assessed for taxes to Col. Beatty or his heirs, nor have any taxes ever been paid by them. That it has always been recognized by the Corporation of Georgetown, since its charter in 1789, as the church property of the Lutherans, and as such has been exempted from taxation with other church property in the town.

It was in evidence that the Lutherans of Georgetown always had a church committee to act for them and to take charge and custody of the lot in question, and the appellees constituted that committee from 1816 till the bringing this suit and to the present time. In virtue of that appointment, when Ritchie entered on the premises and threw down the fence and tombstones, they filed this bill for a conveyance chanrobles.com-red

Page 27 U. S. 572

in fee of the lot to complainants as trustees for said church, to be quieted in the possession thereof, and for an injunction to restrain the appellants from disturbing their possession, or trespassing on said lot.

The circuit court decreed a perpetual injunction against the defendants, the appellants, who, by their appeal, brought the case before this Court. chanrobles.com-red

Page 27 U. S. 578


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