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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 3) online

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and that no title in the grantors was shown, that said articles of
agreement was no deed of conveyance, no grantor nor any title in
the parties shown, that it was not such a paper, the record whereof
was evidence within the recording Act. That so much of it, at
least, as related to church government, was not evidence, and that
if the paper were evidence, the original should be produced or
accounted for, and that no possession accompanying it had been
shown.

The court, on argument, overruled the objection, and admitted
the deed and articles of agreement in evidence ; to which decision
of the court the defendants excepted, and the court sealed a bill
of exceptions.

It was then admitted by the defendants, that Christian Brown,
one of the grantees in Sarah Wistar's deed, was dead ; and the
plaintiffs thereupon offered in evidence a deed dated the 21st day
of April 1837, and recorded 21st April 1837, from Matthias Gress,
who survived Christian Brown, to Joseph Unangst and Christian
Brown, for the premises aforesaid, as follows :



Dec. 1841.] OF PENNSYLVANIA. 49

[Shortz v. Unangst.]

Deed ; Matthias Gress to Joseph Unangst and Christian Brown,
dated the 21st day of April, A. D. 1837. Reciting the grant of
Sarah Wistar, the death of Christian Brown the elder, whereby
the trust vested in Matthias Gress and that the said Matthias
Gress thought it expedient, by the power and authority given unto
him by the aforesaid deed of trust, as the survivor of them, to
convey and assign the same unto Joseph Unangst, in trust for the
German Lutheran congregation, and Christian Brown in trust for
the German Reformed congregation aforesaid, and to their heirs
and assigns for ever. Therefore the said Matthias Gress, in con-
sideration of $5, to him in hand paid by the said Joseph Unangst
and Christian Brown, conveyed to them and their heirs and assigns,
all that certain tract or piece of land, &c., (the same tract granted
by Sarah Wistar, mentioned in the aforesaid deed from Sarah
Wistar to Matthias Gress and Christian Brown), to have and to
hold the said tract, &c. unto the said Joseph Unangst and Chris-
tian Brown, their heirs and assigns for ever, in trust, nevertheless,
for and as a site for one or more houses of religious worship, and
a burial-place for the use of the said German Lutheran and Ger-
man Reformed congregations or religious societies aforesaid. And
upon this further trust and confidence, that they the said Joseph
Unangst and Christian Brown, and the survivor of them, their
heirs and assigns, shall and will permit and suffer the said premises
hereby granted, and the buildings thereon erected and hereafter
to be erected, from time to time, and at all times hereafter for ever,
to be at the disposal, and under the care, regulation and manage-
ment of the said two several religious societies or congregations
aforesaid, and to and for no other use, intent and purpose whatsoever.

To the admission of which in evidence, the defendants objected
that it did not appear that either Joseph Unangst or Christian
Brown had been selected or chosen by either of the congregations
as trustees. That Matthias Gress could not convey the trust
estate without the consent of the ceslui que trust, and that the
same was not relevant to the issue trying.

The court overruled the objection, and admitted the deed in
evidence ; to which the defendants excepted. and the court sealed
a bill of exceptions.

The plaintiffs then called George Frederick as a witness; to
whose competency the defendants objected on the ground of inte-
rest, and that he was one of the alleged church council, for whom
the plaintiffs claimed to be trustees ; which was admitted by the
plaintiffs to be the fact.

The court overruled the objection, and admitted the witness ;
to which the defendants excepted, and the court sealed a bill of
exceptions.

The defendants offered to prove, by the same witness, that John
G. Koehler and Abraham Shortz, were descendants of George
Shortz and George Koehler, whose names are alleged to be signed

HI. 7 E



50 SUPREME COURT [Philadelphia

[Shortz v. Unangst.]

to the articles of 5th June 1788. To which the plaintiffs objected ;
and the court sustained the objection, and rejected the evidence.
The defendants excepted, and the court sealed a bill of exceptions.

The defendants next offered to prove by this witness, that from
time immemorial, it has been the custom in the congregation,
with the assent of the church council and congregation, to permit
any portion of the congregation to have service by a regular
Lutheran minister, on funeral, harvest, and other occasions.

To which the plaintiffs objected, and the court, after argument,
sustained the objection, and rejected the evidence ; to which de-
cision of the court the defendants excepted, and the court sealed
a bill of exceptions.

The plaintiffs thereupon offered in evidence a copy of a bond of
indemnity to Christian Brown, one of the plaintiffs ; also a copy
of a letter from Joseph Unangst, to Christian Brown, to which
the defendants objected, and the court rejected the evidence:
whereupon Mr Hepburn, one of the defendants' counsel, addressed
Mr Brown, (he being in court), and asked what he did with the
bond : Mr Brown replied that he burned it up ; the plaintiffs then
renewed their offer to give the bond and letter in evidence, to which
the defendants again objected: and the court, after argument,
overruled the objection, so far as it related to the admission of
the bond in evidence ; and admitted the bond to be read in evi-
dence ; and rejected the copy of the letter ; to which decision of
the court, permitting the copy of the bond to be given in evi-
dence, the defendants excepted, and the court sealed a bill of ex-
ceptions.

The defendants proposed to prove, by the witness, that at the
meeting of the 13th April 1837, General Shinier misrepresented
the contents of the charter, by asserting that it contained provi-
sions which are not found in it. To which the plaintiffs objected ;
and the court sustained the objection, and overruled the evidence.
To which the defendants excepted ; and the court sealed a bill of
exceptions.

Charge of the court :

The rights of the parties had their origin in an article of agree-
ment dated the 5th of June 1788.

The title to the land was conveyed by Miss Wistar to Gress
and Brown, by deed dated the 10th of June 1794. Gress and
Brown were the trustees of the two congregations, and as such
held the title to this tract of land. Brown having died, Gress, the
survivor, by his deed dated the 21st of April 1837, conveyed the
lands to the plaintiffs, on the same terms, and subject to the same
trusts mentioned in the Wistar deed. This last deed was valid,
and by it the plaintiffs succeeded to all the rights of the original
trustees. They held the legal estate. The congregations have
the right to use it as stipulated in their articles of association.
The deed passed the freehold to the plaintiffs, and gave them the



Dec. 1841.] OF PENNSYLVANIA. 51

[Shortz v. Unangst.]

possession, so far as to enable them to sustain an action against
the wrong-doers.

The articles of agreement are the guide to determine the rights
of the two congregations and their members to this church pro-
perty. They have so made it, and we must take it as the inten-
tion by which to test their rights, in relation to the preservation
of the property, and the discipline and government of the respec-
tive churches. It is their fundamental law a constitution to
limit and secure their temporal and religious rights as associate
members.

The defendants do not deny their breaking open and entering
into the church. They admit this, and seek its justification under
their rights as church members. Assuming this to be the true and
legitimate aspect of the case, and it is so, the only question to be
decided is, have they a right to do what it is proved they did do 'I

It is proved that the object of the defendants, in opening the
church, was to have public worship in it. By the articles of agree-
ment, which are the law of the church, the consent of the regular
minister and vestry is necessary to give a right to preach in this
church. The church council is the only power to elect a minister,
in case of vacancy, or to remove one in case of misbehaviour. If
the office of minister is filled, no one can preach in this church
except by his consent, and that of the vestry. If the office of
minister is vacant, no one can preach there except by consent of
the council.

Was the office of minister full ? If so, had the defendants per-
mission to enter from the minister and vestry ? If they had, they
are justified. Was the office of minister vacant ? If so, had they
the permission of the other branches of the church council ? If
they had, they are justified. Unless they had permission in one
of the two cases just stated, they had no right of entry ; and your
verdict must be against them.

In sustaining their defence, the defendants must stand on the
strength of their own right. Their legal defence must consist in
their own right; and if they fail to establish this, a want of right
in their opponents' church organization will not help them. The
plaintiffs have the legal title, and may wield it so as to correct a
violation of right by either contending branch of this church.

The great inquiry is as to the right of the defendants ; and all
the testimony on this point, or as far as it relates to the facts, is
left to you : you heard it all, and will decide it for yourselves.

Under what right did the defendants enter? Was it by the
consent of the vestry, or was it under the charter ? You will
decide this point.

The disclaimer of Christian Brown, and his consent, does not
aid the defendants. The Supreme Court has decided that this
gives no right, affords no protection, and does not interfere, in any
way, so as to impair or defeat this action.



52 SUPREME COURT [Philadelphia

[Shortz v. Unangst.]

In answer to the defendants' point, we say that the trustees in
the deed, and much less one of them, could not give permission to
place a clergyman in that church. This could be done only in the
way prescribed in the agreement ; and with this the legal trustees
have nothing to do.

If the defendants entered in right of their charter, then it
becomes material to determine what rights this instrument gave
them.

When this case was formerly tried before this court, I considered
this subject, and will now repeat to you what I then said to the
jury, as nothing has since taken place, that tends to change my
opinion on this point.

A religious community such as this was constituted by its
articles of association might alter its rules and regulations. This
change might be effected by an Act of incorporation legally
invoked. How should this be done? It must be done by the
congregation. The congregation should be notified. As being
preparatory to a change in their constitutional existence, the
object of convening the meeting should be communicated in the
notice. This would apprise the members of what was to be done,
and if they did not attend, they could not complain. When thus
assembled, the decision of the majority would be binding. There
is no other way of determining questions in such a community
unless their articles or rules directed some other mode. Here no
other rule was directed.

Here there is a total absence of all the evidence requisite to
establish that the congregation ever agreed to or authorized any
one to make and obtain this charter. No meeting was ever called,
no notice was ever given to the congregation on the subject of this
charter. Those in favour of it knew it, no doubt ; but those
opposed to it were designedly kept in utter ignorance of what
was in progress. I may safely ask, where is the evidence that the
congregation ever decided that this charter should be obtained?
The absence of all evidence on this point is sufficient to warrant
the conclusion, that no such proposition was ever submitted to the
action of the congregation.

When or how this charter was concocted we have not been
informed ; all we know of it is that it was carried around through
the country, and the signatures which are to it were thus obtained.
This is not the assent which is necessary to bind the congrega-
tion. It would bind those who signed it, but beyond this it would
not bind any other member of the congregation. Here no delibe-
ration or act of the members was had jointly, touching this char-
ter. There was no joint consultation or discussion by the members
on the subject, nor was there any opportunity for that joint deli-
beration, advice, consultation, discussion, and action by the mem-
bers of this church, by which they ought to be bound. It is
altogether idle and repugnant to good sense and moral honesty to



Dec. 1841.] OF PENNSYLVANIA. 53

[Shortz v. Unangst]

tell men that those who were opposed to this charter might have
followed it to the Supreme Court, at Philadelphia, and to the exe-
cutive at Harrisburg. They were not bound to pursue its trail
in obtaining this public highway assent of part of the members,
nor before the Supreme Court, and executive. To obtain the
assent of the members at one time and another at a different time,
successively and in detail, will not bind the congregation, unless
every member should assent to it. It would not bind him who
did not assent to it.

The members should have been assembled in congregational
counsel. They should have deliberated jointly. They should
have acted unitedly. They should have expressed their assent
and dissent in their associate capacity, and then the result duly
announced, would have been binding upon all the members. Any
other mode of proceeding would be subversive of the first prin-
ciples of justice, and leave no safety to the members.

If I am right in what I have said, this charter neither alters
nor diminishes the rights of those who did not agree to it. It,
therefore, can have but little, if any, operation in this cause. It
gave those who are parties to it no right against the other mem-
bers, who are not parties to it. As to these, it is inoperative. I
do not think, however, that the obtaining the charter made the
parties to it aliens to the church. They did not thereby relin-
quish church property, nor abdicate church membership. They
still cling most pertinaciously to both. They did not set up
adverse to the church, nor did they claim the right to exclude
their differing brethren.

The charter was irregularly obtained, and does not annul the
fundamental rules of the church, as found in their articles of asso-
ciation, as to those who are not parties to it.

To this charge the defendants excepted.

Errors assigned :

1. The court erred in their decisions noted in the several bills
of exceptions.

2. In all they said relative to the deed from M. Gress, and the
rights acquired thereunder.

3. In what they said about the articles of agreement.

4. In charging the jury, that the only question in the cause
was, had defendants a right to do what it was proved they
did do.

5. In saying that if the office of minister was vacant, no one
could preach there except by consent of church council.

6. In charging that unless defendants had such permission the
verdict must be against them.

7. In what they say of the non-effect of the disclaimer and con-
sent of Christian Brown.

8. In all that was said relative to the charter and the rights of
the parties thereunder.

in. E*



64 SUPREME COURT [Philadelphia

[Shortz v. Unangst.]

9. In the answer to the point propounded by defendant's
counsel.

10. In the whole tenor of the charge which recognised the
plaintiff's right to recover under the evidence in the cause.

The case was argued by

Maxwell and Porter, for the plaintiffs in error ; and,

Brown and Hepburn, contra.

The opinion of the Court was delivered by

SERGEANT, J. The merits of this case having been already
discussed and decided upon by this court, on the former writ of
error, it would be superfluous to travel over the same ground
again. It is necessary chiefly to notice the bills of exception.

1. The first error assigned is to the admission in evidence of
the certified copies from the recorder's office, of the articles of
agreement, or, as they are entitled, Rules of the Lutheran congre-
gation of the Dryland church. The objection is, that they are
not such a deed or writing as comes within the recording Acts.
The Act of 1775 directs the recording of all deeds and conveyances
of and concerning lands, tenements or hereditaments, or whereby
the same may be any way affected in law or equity. And by the
sixth section, the recorder is to make entry in a book, of every
deed or writing brought into his office to be recorded. In Hell-
man v. Hellman, (4 Rawle, 444), it is stated by Mr Justice Ken-
nedy, in delivering the opinion of the court, that by the use of the
term writing, it is shown, that it was not intended to restrict the
meaning of the term "conveyances," to deeds; so that convey-
ances not under hand and seal, of and concerning lands, or
whereby they may be affected in law or equity, may be recorded,
after being duly proved or acknowledged : and that such deeds,
conveyances and writings, as pass or create an interest or right
of some kind in land, are within the act. Nothing, it is believed,
is more common than to record articles of agreement for the sale
or settlement of lands, or for creating or declaring an interest
therein. The present instrument, whether called a species of
conveyance, declaration of trust, or article of agreement, concerns
the title to land, and the regulations embraced by it relate to the
ownership and mode of enjoying land and buildings thereon. It
begins by reciting, that the two congregations had built the church
that they had taken up 7 or 8 acres of land that it was to remain
in them and their successors' possession for ever. It then describes
its boundaries and site. It proceeds to declare, that no more than
one church and school-house in common are to be erected, the
persons who are to pay for them, the number of trustees, and how
they and the minister of the church are to be chosen ; the modes
of conducting public worship there, the rights in the church, and
method of repairing the buildings and erecting tomb-stones. The



Dec. 1841.] OF PENNSYLVANIA. 55

[Shortz v. Unangst]

instrument therefore, we think, comes within the denomination of
" writings by which lands may be affected in law or equity,"
inasmuch as it declares the title of the owners, defines and fixes
their respective rights in the lands and buildings, and regulates
the terms and manner in which they are to be for ever thereafter
held and enjoyed.

As to the deed, it is rather in nature of a deed of confirmation,
than one under which the title to the land was claimed and held.
It is long subsequent to the articles, which are themselves subse-
quent to the taking up and improving the land, the title to which
would seem to have begun by occupancy or settlement ; for they
recite that they had taken up the land, which seems to mean as
ground considered and deemed vacant. The effect of the deed,
considering it was produced by the church as having been accepted
and acted on by them, was, to create trustees to hold for the ben-
efit of the congregations having already a title by settlement.
These instruments were accompanied by ancient and continued
possession under them, for more than 21 years, and would there-
fore constitute a title, at least prima facie.

2. It is objected, that Gress could not convey without the con-
sent of the cestuis que trust. But the power to convey passes by
the grant to Brown and Gress, their heirs and assigns ; and Gress
being the survivor, could, in the absence of any proceeding to
control him, assign to another trustee.

3. The admission of George Frederick as a witness, was objected
to. Had it then appeared, as it subsequently did, that he was
one of the parties concerned in bringing and carrying on this suit,
the objection would have been tenable. But there is nothing in
the circumstance of his being one of the church council which has
that effect. It does not appear that as such he had any interest
in the event of this suit, or would be personally affected by its
result.

4. The fourth objection is to the rejection of evidence that
Koehler and Shortz were descendants of Koehler and Shortz,
whose names were alleged to be signed to the articles of June,
1788. It does not appear how this was pertinent to the case in
any way, and if received, would, as far as we can judge, have
been immaterial to the case.

5. Evidence of the custom was rightly rejected. It was by the
articles and deed the rights of the parties were to be tested.

6. We think the copy of the bond of indemnity was, under the
circumstances, admissible as secondary evidence, the obligee who
had the original in his custody having admitted in court, when
called upon to produce it, that he had burned it. Although his
name was necessarily used in the suit, yet he had disclaimed it,
and was in an adverse position to the plaintiffs.

The 7th and 8th aie the same. This evidence was also pro-
perly overruled. It led to nothing. It did not prove whether the



56 SUPREME COURT [Philadelphia

[Shortz v. Unanget]

charter would have been accepted, if General Shimer had not,
as was alleged, misrepresented its contents. And if that might
be conjectured, it was only by the acts of the meeting, their mea-
sures could be legally determined.

We concur in the positions laid down by the court below, as to
the effect of the charter.

Judgment affirmed.



Pugh against Good.

Delivery of possession of land, in pursuance of a parol contract, amounts to
part performance, and the vendee, as well as the vendor, may insist on specific
execution of the contract.

Therefore if in such case one authorized by the vendor to deliver the possession
to the vendee, takes a lease of the land from the vendee, and enters into actual
possession, there is an equitable estate in the lessor, which is bound by a judg-
ment against him.

The doctrines of the English chancellors, concerning part performance of parol
contracts for land, have been adopted as the law of Pennsylvania, under our Act
of Assembly against frauds and perjuries, notwithstanding the omission in the
latter of the 4th Section of the English statute.

THIS was an appeal from the decree of the Common Pleas
of Bucks county, distributing the fund in the sheriff's hands arising
from the sale of the defendant's real estate under a writ of vendi-
tioni exponas, at the suit of John B. Pugh. The facts of the case
are as follows : On the 28th of June 1836, Edwin Yerkes executed
a deed in fee simple to Chalkley Good, for a lot in Bucks county,
designated the Shop Lot ; and on the 29th of June 1836, Evelina
Burson entered a judgment on a bond, with warrant of attorney,
in the Common Pleas of Bucks county, against Chalkley Good, for
$275. The 1st day of April 1837, Edwin Yerkes executed a deed
to Good for another lot in Bucks county, designated the House
Lot; and on the 5th day of July 1837, J. B. Pugh, the appellant,
entered in the Common Pleas of Bucks, a judgment on a bond,
with warrant of attorney against Good, for 8335. July 17th, 1837,
Edwin Yerkes & Co. also entered judgment in the same court
against the same defendant, for $389, on a bond, with warrant of
attorney dated April 3d, 1837. Both lots were sold under the
venditioni exponas issued by John B. Pugh to December term 1838.
The proceeds of the sale of the shop lot were paid to Evelina Burson,
on her judgment, leaving a balance due her of about $70; which
sum she claimed to be paid out of the proceeds of the sale of the
house lot. Her right to it was disputed by John B. Pugh, who also
claimed it by virtue of his judgment. It was admitted, that if Eve-



Dec. 1841.] OF PENNSYLVANIA. 57

[Pugh v. Good.]

lina Burson be entitled to the money claimed by her, there will
be no fund to pay Pugh's judgment. A rule was taken by Eve-
lina Burson, in the court below, to show cause why she should not
take out of the sheriff's hands the balance due on her judgment.
The following depositions were read on the argument of the rule.

Edwin Yerkes affirmed that he contracted to sell the house lot (now
owned by plaintiff), to Chalkley Good, on or about the 1st of April
1835. The contract was a verbal one. The defendant took pos-
session of the said lot at the time of the contract. He was to give



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 3) → online text (page 6 of 69)