(100 Md. 264)

SHAEFFER. KLEE et al. (Court of Appeals of Maryland. Jan. 13, 1905.)

RELIGIOUS SOCIETIES -CORPORATE STATUS STATUTES-CONSTRUCTION-RIGHTS OF MEMBERS-CHANGE OF LANGUAGE-INJUNCTIONJURISDICTION-DEED-TRUST.

1. A deed to a religious society's trustees and their successors, in fee, without restriction or limitation, does not create a trust.

2. Under Code Pub. Gen. Laws 1889, art. 23, § 205 et seq., authorizing the incorporation of trustees of religious societies and defining their powers, persons affiliating with a society so incorporated merely as members have no rights as members of the corporation, and hence such members have no standing in court to restrain the trustees from changing the language in which the services shall be conducted, in the absence of allegation as to what the particular denominacion has required in respect to the language to be used in the services.

McSherry, C. J., dissenting.

Appeal from Circuit Court, Carroll County, in Equity; I. Thomas Jones and Wm. H. Thomas, Judges.

Suit by John Shaeffer against John Klee and others, trustees of the Evangelical Lutheran Church. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

Jas. A. C. Bond and F. Neal Parke, for appellant. Benjamin F. Crouse, for appellees.

PAGE, J. The questions presented by this appeal arise upon the decree of the lower court sustaining the demurrer to the bill filed by John Shaeffer, who, it is alleged, is a member in good standing of the corporate body therein mentioned.

The German Evangelical Church at Deer Park Road, in Carroll county, was incorporated under the general laws of the state in 1866, and in 1879 its charter was amended, also under the general laws of the state. The articles of incorporation show that the purpose of the incorporation was to "organize a German Evangelical Lutheran Church at Deer Park Road, for holding public religious worship in a Christianlike manner,' "in accordance with the pure Lutheran doctrine, the preaching of the Word of God, and the proper administration of the Holy Sacraments, and in conformity with the fundamental doctrines of the unaltered Augsburg Confession, and assure to themselves and to their children the Lutheran catechism in the German language." Article 2 of the incorporation of 1866 provides that the "worship of God by said church or congregation shall always be conducted in strict conformity with the established custom of the Evangelical Lutheran Church, and the said worship of God and service of said church.or congregation shall always be conducted in the German language, as long as the said congregation numbers one male member, and said member shall so desire it, and said serv

ices of said church or congregation shall be conducted only by ministers who are members in good standing in an Evangelical Lutheran Synod, and who, besides the Word of God, hold the unaltered Augsburg Confession as the rule of their faith." By the amendment of the charter in 1873 this article was amended so as to require the services to be conducted "only by ministers in an Evangelical Lutheran Synod," and who, besides the Word of God, hold as their rule and word of faith "the Symbolical Books of the year 1580." It is further alleged that, after the incorporation of the church in 1866, Elizabeth Bitzel, a member of the congregation, together with her husband, in consideration of the high estimation entertained by her for the German Evangelical Lutheran Trinity Church at Deer Park Road, conveyed "and accordingly gave" a lot of ground "to the said body corporate," for the purpose of the erection of a church thereon, and for the use and occupation thereof as a burial ground for the said church and congregation; and that in 1873 a certain John Nelson and others conveyed a certain other lot of ground, in fee simple, for a consideration of $98.91. It is further alleged that in February, 1903, the trustees "deliberately forsook and abandoned the established and fundamental form of worship of said body corporate or congregation," and took possession of said church, parsonage, and all other corporate property, for the purpose of ending, and did end, the worship of said congregation for many years established and practiced, and ever since have "prevented and denied to said body corporate and its members the right to hold, as theretofore, the devotions and services of said congregation in accordance with the said articles of incorporation and the Augsburg Confession and the Symbolical Books of the year 1580"; that the said trustees have used the property for worship and devotions other than those contemplated by the articles of incorporation, and have had, and do now have, the said worship conducted by "ministers of the Gospel who only acknowledge the Augsburg Confession as the symbol or declaration of faith, and who deny the validity, integrity, and binding force, sanctity, and absolute authority of the said Symbolical Books of the year 1580," etc., and that said trustees have undertaken to abolish and have terminated the use of the German language "in the catechetical instructions, the devotions, ritual, forms of worship, and preaching," etc. It is charged that such action on the part of the trustees is illegal, in defiance of the rights of the complainant and other members, and contrary to and in violation of the trust reposed in them by the Bitzels and Nelson and others (that the said property should be devoted to the purposes set forth in the articles of incorporation), and that a discontinuance of the use of the German language would work a forfeiture of said property and cause the same to revert to the orig

inal owners, etc.; that the trustees "have no power to act in opposition to the terms and conditions and limitations contained in the articles of incorporation and the amendment thereof," and no warrant to use the property as has been shown, and, unless restrained, the "congregation or body corporate will suffer irremediable and irreparable loss," etc. The prayer of the bill is for an injunction restraining the trustees from holding services such as are objected to, and the ministers who have and are yet officiating from conducting such services, and any other relief his case may require. A demurrer having been sustained, the complainant appealed.

The grounds of the appellant's grievances, as appears from the allegations of the bill, are that the trustees permit the services to be held in a language other than the German, and also that they do not forbid and prevent ministers who do not accept the Symbolical Books of 1580 as of binding force and absolute rule of faith, but acknowledge the Augsburg Confession only, from preaching and conducting services in the Deer Park church. It is not alleged in the bill, and it does not anywhere appear, that according to the usages and customs of the Evangelical Lutheran Church, or by the principles of the Augsburg Confession or of the Symbolical Books of 1580, there is any ecclesiastical requirement or rule of practice, or form of worship, as to the use of the German language in the devotion or services of the church; but it is contended that the members of the congregation are entitled to the relief they pray for under and by virtue of the provisions of the charter, and also by reason of an implied trust created by the deeds of Nelson and others and the Bitzels, under which the trustees hold title to the property. The deed of Nelson certainly does not create a trust. It conveys the property therein described to the trustees and their successors, in fee, without any restrictions or limitations whatever. The deed of the Bitzels conveyed the property to the trustees, and "their legal successors in office in fee simple" "to have and to hold * * forever for the purpose

of the erection of a church or house of worship, and for the use and occupation of the said lot of ground, as a burial ground for the said church or congregation, and for no other use or intent whatsoever." The consideration expressed is "the high estimation and regard entertained by us George Bitzel and Elizabeth Bitzel his wife for the religious teachings and moral influence of the said German Evangelical Lutheran Trinity Church at the Deer Park Road," and $1. The real consideration was therefore the "high estimation which they entertained for" that church; but there is nothing that could prevent the trustees from making such use of the property as they saw fit, provided it was occupied by a "church or house of worship," and used "as a burial ground for said church or congregation." It is insisted that the words "use and occupa

tion," as employed in the deed, must be taken to refer to such use and occupation as would not "conflict with the church plan or constitution promulgated in the certificate of incorporation." Conceding this, without so deciding, we are brought to consider the construction and effect of the charter.

The trustees were incorporated under the provisions of the Code, Pub. Gen. Laws 1889, art. 23, § 205 and following. But those sections do not authorize the incorporation of the members of the congregation or of the congregation itself. They provide that "in every church, religious society or congregation of whatever sect, order or denomination," etc., "there shall be sufficient power and authority in all persons above twentyone years of age, belonging to any such church," etc., "to elect, at their discretion certain sober and discreet persons, not less than four nor more than twelve, which persons so elected, upon being registered as hereinafter directed, shall be constituted a body politic or corporate, to act as trustees in the name and behalf of the particular church," etc., "for which they are respectively chosen, and to manage the estate, property, interest and inheritance of the same." Section 206 defines particularly the powers they may exercise, viz., they "may purchase, take and hold to them and their successors in fee or for a less estate," lands, tenements, etc., lease, mortgage, sell, and convey the same in such manner as may judge most conducive to the interest of their respective churches, etc., except where they hold "under instrument prohibiting such sale; and provided," etc. The statute does not authorize the incorporation of "congregations," but certain persons belonging to and selected by the congregation, and these are constituted the body politic on behalf of the particular church. There is nothing in the act granting to the members of the congregation the power to act as members of the corporation. The act included in article 23, § 205 et seq., is an amendment of the act of 1802, c. 111, and in construing that this court said, "The male members of the church are invested with no visitatorial power over ministers or trustees, or interest in the property of the corporation." In the act of 1802 there was a provision which expressly declared that nothing contained therein should be taken to affect or alter the religious constitution or government of any church, so far as respects or in any wise concerns "doctrine, discipline or worship." The sections in the Code do not include this provision, but the powers granted to the trustee are carefully set forth, and apply only to the management of the property, and no authority is given to exercise any authority over matters of doctrine or discipline. It seems, therefore, to be clear that the purpose of incorporations, like the one in this case, was to enable the church to attend more readily and efficiently to their temporal affairs, without any power or au

thority to interfere with forms of worship, articles of faith, or any other matter, relating strictly to spiritual concerns. Tartar v. Gibbs, 24 Md. 334; Stubbs v. Vestry, 96 Md. 267, 53 Atl. 917.

It also appears by the articles of incorporation that the Deer Park Road church is of the denomination of the Evangelical Lutheran Church. The second article provides that the public worship of God by this congregation "shall always be conducted in strict conformity with the established custom" of that church. The sole authority, therefore, to regulate the doctrines and discipline resides with that denomination, to be exercised by it according to its customs and usages. There is no allegation in the bill as to what that denomination has required with respect to the use of the German language. The matter of the language in which public worship shall be conducted is an important element of public worship. Like singing and the use of instrumental music, it is a matter to be determined by those having charge of the discipline of the church, and not by those who are invested only with authority over its temporal affairs. Tartar v. Gibbs, supra. As to those matters which involve only spiritual affairs, it seems to be well settled that this court has no power to interfere. Tartar v. Gibbs, supra. These must be left with the authorities of the church or denomination, who have the power, by the custom and usages of the ecclesiastical organization, to consider and determine upon them.

This record does not therefore present a case when the property in the hands of the trustee has been devoted by the will of the donor to some peculiar view of his own or of other persons, but to the worship of God according to the customs, usages, and doctrine of the Evangelical Lutheran Church; and, in the absence of an averment that this

denomination has decided, according to its usages and customs, that the acts complained of are in violation of its authority, this court has no jurisdiction over them. "Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine." German Ref. Church v. Seibert, 3 Pa. 291; Watson v. Jones, 13 Wall. 679, 20 L. Ed. 666. "All questions relating to faith and practice of the church belong to the church jurisdiction, to which they have voluntarily subjected themselves." Chase v. Chaney, 58 Ill. 509, 11 Am. Rep. 95; Lawyer v. Cipperley, 7 Paige, 281. In Jennings v. Scarborough (N. J. Sup.) 28 Atl. 560, it was held courts of law will not interpose to control the proceedings in spiritual matters which do not affect the civil rights of individuals. And in Brunnenmeyer et al. v. Buhre et al., 32 Ill. 189, the court said: "The trustees chosen by the organization are, for convenience, vested with the legal title for its control and management in its enjoyment by the body. They have no power to pervert it, or prevent it from being used for the purposes of its original design. Nor can a majority of the members of the church control the action of the trustees, against the usages and regulations of the church." "The Legislature never means, by granting or allowing such charters, to change the ecclesiastical status of the congregation, but only to afford them a more advantageous civil status. directors or trustees of the corporation, as such, have no authority whatever over church affairs." Jennings v. Scarborough, supra. The judgment of the court below, being in accordance with these principles, will be affirmed.

The

Judgment affirmed, the appellant to pay

costs.

MCSHERRY, C. J., dissents.

(99 Me. 505)

MCPHETERS ▾. KIMBALL. (Supreme Judicial Court of Maine. Feb. 27, 1905.) REPLEVIN-CONTRACT-RESCISSION-tender. 1. The plaintiff exchanged a cow with the defendant, receiving of him a heifer and $8 in money. After examining the heifer, the plaintiff claimed that the defendant had misrepresented as to her size and qualities, and undertook to rescind the trade by restoring to the defendant the heifer and the money. The plaintiff returned the heifer and left her in the defendant's barn, and offered to repay the identical money which he had received of the defendant, with the heifer, in exchange for the cow, but the defendant refused to accept the money. The plaintiff did not bring this money into court with his writ, nor produce the same at the trial.

A party rescinding a contract must do all that is practicable to place the other party in statu quo. What he cannot restore on account of opposition, he must put in custodia legis, so that it can be had upon request, at least before verdict.

2. A tender must be kept good, so that the other party shall know that he can at any time get his money or goods back, without being put to an action to recover the same.

3. Held, that the plaintiff, after having made a tender and done all that was necessary to effect a rescission of the contract and authorize an action, failed to keep his tender good by bringing it into court with his writ, or at least at the trial, and that by reason of this failure he cannot maintain his action.

(Official.)

Exceptions from Supreme Judicial Court, Piscataquis County.

Action by Mark McPheters against William A. Kimball. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Argued before WISWELL, C. J., and EMERY, STROUT, SAVAGE, and SPEAR, JJ. Henry Hudson, for plaintiff. J. S. Williams, for defendant.

SPEAR, J. This is an action of replevin, involving the title to a cow, and comes up on exceptions. The plaintiff exchanged a cow with the defendant, receiving of him a heifer and $8 in money. After examining the heifer, the plaintiff claimed that the defendant had misrepresented as to her size and qualities, and undertook to rescind the trade by restoring to the defendant the heifer and the money.

After the plaintiff had put in his case, the defendant moved for a nonsuit, on the ground that the tender, if made, was not kept good by producing the money in court, and also excepted to the charge of the justice, who did not give an instruction to this effect. It appears that the plaintiff received the heifer about 7 o'clock in the evening, and, after discovering the deception as to her qualities, on the same evening took a deputy sheriff with a replevin writ, found the plaintiff, and then and there told him that he had misrepresented the heifer, and that he had come "to shift with him, to get his cow and settle the matter, and tendered him the eight dollars that he paid to boot." He said it was

the same money he had received from the defendant, and that the defendant took it, and "in the course of five minutes we were talkIng the matter over; he come and laid it on the buffalo in my lap in the sleigh, and said he wouldn't take it." The plaintiff also says that at the same time he told the defendant he was going to return the heifer. That night, or, rather, shortly after midnight the next morning, the plaintiff took the heifer back to the defendant's barn and left her there, and at the same time saw his cow in the barn, locked to a stanchion, so he could not take her. If the defendant's contention is correct that the plaintiff should have tendered to the defendant the money and heifer at the same time, yet if the defendant, by any act or declaration of his, precluded the offer of tender as a useless form, the plaintiff would thereafter be required to make restitution only so far as practicable, in view of the attitude of the defendant. If the defendant would not take the money, the plaintiff could not compel him to. The only other thing the plaintiff could do was to return the heifer, and this he did do before taking his cow.

If the defendant refused to rescind, the plaintiff had a right, upon restoring or tendering to the defendant the heifer and money, to replevy his cow without demand or notice. As the possession of the cow was obtained by unlawful means, namely, by fraudulent misrepresentation, he might treat the possession of the cow by the defendant as tortious, by relation, from the time of the first taking.

If the case stopped here and involved only the conduct of the parties with respect to the acts necessary to constitute a recission of the contract and authorize an action by the plaintiff, the result might be different, but, unfortunately for the plaintiff, something more was required of him.

It is a well-settled rule of law that the party rescinding must do all that is practicable to place the other party in statu quo. What he cannot restore on account of opposition, he must put in custodia legis, so that it can be had upon request, at least before verdict, otherwise he cannot maintain his action.

Therefore in this case we find that the plaintiff, after having made a tender and done all that was necessary to effect a rescission of the contract and authorize an action, failed to keep his tender good by bringing it into court with his writ, or at least at the trial.

A tender must be kept good, so that the other party shall know that he can at any time get his money or goods back without being put to an action to recover them. In Thayer v. Turner, 8 Metc. (Mass.) 550, Chief Justice Shaw says: "The plaintiff, as far as it is in his power, shall put the defendant in statu quo by restoring and revesting his former property in him, without putting him

to an action to recover it, before he can exercise his own right to take back the property sold or bring an action for it." While there need not be any plea of tender filed in this case, as in an action of debt, yet it would seem that the tender itself should be kept good, the money be always ready, and brought into court with the writ, or at least at the trial. In New York it is held: "If a tender was necessary in this case to effectuate a rescission of the contract, I cannot see upon what principle it can be maintained that the plaintiff need not keep the tender good, and was not obliged to produce the money receiv ed on the trial." Stevens v. Hyde, 32 Barb. 183.

For the failure of the plaintiff to keep his tender good, the entry must be:

Exceptions sustained.

New trial granted.

(26 R. I. 534)

KNOWLES et al. v. KNOWLES et al. (Supreme Court of Rhode Island. Dec. 23,

1904.)

COVENANT-WHEN MAINTAINABLE - ABSENCE OF PRIVITY-HEIRS OF COVENANTOREQUITABLE CONSIDERATIONS.

1. Where an absolute deed was given as security for the grantee's indorsement of the grantor's note, and there was a contemporaneous written agreement of the grantee alone, in which his heirs and assigns were not named, to retransfer the land on demand if the note should be paid, and the grantee should be saved harmless from all costs or damage by reason of the indorsement, covenant could not be maintained by the executrix and devisees of the grantor against the heirs of the grantee for breach of the agreement by the latter, because the grantor's title to the land was divested by his deed, and there was no privity between the parties with respect to the land, and the covenant, being therefore a merely personal one on the part of the grantee, was not binding upon his heirs, who were not named therein.

2. The fact, if true, that the transaction between the parties constituted a mortgage, so that the equity of redemption was devised to plaintiffs, and defendants, after the performance of the obligation secured by the mortgage, took by descent a bare legal title subject to the naked trust to convey it to plaintiffs on demand, is not available in a court of law to furnish a foundation for the action of covenant.

Covenant by Martha D. Knowles and others against Edwin Knowles, Jr., and others. Heard on demurrer to declaration. Demurrer sustained.

Argued before TILLINGHAST, C. J., and DOUGLAS and DUBOIS, JJ.

Irving Champlin, for plaintiffs. David S. Baker and Lewis A. Waterman, for defendants.

DOUGLAS, J. This is an action of covenant brought by the executrix and devisees of John C. Knowles against the heirs at law of Edwin Knowles, alleging that the defendants have broken a certain agreement under seal, made by their ancestor, and seeking damages therefor. The case is now before us upon demurrer to the declaration.

Such of the facts alleged as are pertinent upon the questions raised by the demurrer are, briefly, as follows: John C. Knowles, being the owner of a burial lot in Swan Point Cemetery, conveyed a certain specified portion of the same to Edwin Knowles by his deed in ordinary form, and at the same time Edwin Knowles executed and delivered to John C. Knowles an instrument, under bis hand and seal, in the words and figures following:

"Received of John C. Knowles a transfer of the southeast end of group 117 in Swan Point Cemetery, containing about 2,000 feet, as collateral security for the endorsement of his note dated April 20, 1889, for the sum of sixteen hundred dollars. Now therefore, if said note is paid, or any renewals of the same, saving me harmless from all cost or damage by reason of said endorsement, then I agree to retransfer said land as afore-described on demand. Providence, July 18, 1889.

"Witness my hand and seal, "[Signed]

Edwin Knowles. [L.S.] "In presence of Louis J. Doyle." Neither the deed nor the agreement was recorded during the lifetime of the makers. John C. Knowles died February 21, 1894, leaving a will, which was afterwards duly admitted to probate, whereby he gave all his property and estate to the plaintiffs, and appointed the plaintiff Martha D. Knowles his executrix. The plaintiff Martha D. Knowles, May 2, 1896, paid to Edwin Knowles the entire indebtedness owed to him by John C. Knowles, deceased, and requested him to deliver to her the deed of John C. Knowles. He expressed his willingness to do so, but said he could not find it. March 22, 1900, Edwin Knowles died intestate, leaving the defendants his sole heirs at law, and subsequently the defendant Edwin Knowles, Jr., was appointed administrator of his estate, and duly qualified as such. The plaintiffs, in April, 1902, requested the son, Edwin Knowles, Jr., to deliver to them the deed, which had come to his possession, but he refused to do so, and on April 21, 1902, he caused the same to be recorded in the records of Swan Point Cemetery. The plaintiffs thereupon brought their action of trespass on the case against these defendants, alleging damages to them from the recording of the deed, and charging also a conversion of the deed. This case, after jury trial, came before this division on a petition for a new trial, and the verdict of the jury was set aside and judgment directed for the defendants. The opinion of the court is reported in 25 R. I. 464, 56 Atl. 775. In that opinion the court use this language: "The only ground upon which the plaintiffs could possibly recover would be upon a refusal to retransfer after demand; but this remedy would be in an action on the covenant, and not in tort."

The court here mention an action on the covenant as a hypothetical remedy, but,