McGuire v. Trustees of St. Patrick's Cathedral — 27 N.Y. St. Rep. 192

Majority

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Philip McGuire, Adm’r, App’lt, v. The Trustees of St. Patrick’s Cathedral, Resp’ts.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

1. Cemeteries—Rights of purchaser of burial lot.

Plaintiff’s intestate purchased a grave in Calvary cemetery and received a receipt therefor specifying its size and giving permission to erect a headstone. No deed was given. Held, that he acquired no easement, but only a license which was revocable and that he had no property rights which could be specifically enforced.

2. Same.

The burial of the intestate’s wife in said grave was not a part performance of the agreement, but only a partial enjoyment of the privilege under the license.

3. Same — Roman Catholic—Rights subject to the rules of the church.

Persons purchasing lots or graves in a Roman Catholic cemetery are presumed to do so with reference to the denominational rule that such cemeteries are set apart for the exclusive use of those who die in communion with that church.

4. Same—Decision of ordinary on spiritual matters not reviewable BY THE COURTS.

The decision of the ordinary as to whether a person was in communion with the church is not reviewable by the secular courts; if he acts arbitrarily an appeal lies .to Rome.

Appeal from a judgment of the special term.

John H. Post, for app’lt; George Bliss, for resp’ts,

I am unable to concur in the conclusion arrived at by Mr. Justice Daniels in this case. The learned judge ignores the views which were expressed by this court in The People ex rel. Coppers v. Trustees of St. Patrick's Cathedral, 21 Hun, 184 . In that case, a receipt similar to the present, but more favorable to the holder’s contention, was fully considered, and its inadequacy to confer a legal and enforceable right pointed out. The question there was whether a mandamus would lie. Incidentally we held

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that it was “ even doubtful whether equity would decree a specific performance.” Upon that question a definite opinion was reserved. It was enough for the denial of the mandamus that the right, if any existed, was an. equitable one, and such as could not be enforced at law. We endeavored to show that there was absolutely no legal right, and that an equitable right was extremely ■doubtful. This latter question is now before us for a decided and definite opinion.

To its accurate solution a clear statement of the precise facts is ■essential Let us, for the moment, assume that burial has been ■arbitrarily refused Thus, it is said, McGuire has been denied his “ property rights.” What, then, are these property rights ? They rest, exclusively, upon the receipt given in extenso in Mr. Justice Daniels’ opinion. There is not a particle of evidence in the case •of any paroi agreement except such as may be implied from the possession of that paper. What took place between the parties when Mr. John McGuire paid the $10, specified in the receipt, to Mr. D. Brennan, the “ superintendent of the office of Calvary cemetery,” we know not. What their bargain was is entirely undisclosed Whether it was a bargain for the burial of one person, or of two ■or more persons, for the burial of McGuire, himself, of his family, of both, or of catholics outside of his family, are all mere matters of conjecture.

What we know is that as the result of some undisclosed paroi agreement, Brennan gave McGuire a receipt for ten dollars, specifying that such sum was the “ amount of purchase money of a gravef the location of which is indicated by some words and figures which appear beneath Mr. Brennan’s signature. I have said that the receipt in the Coppers case was more favorable than this to the holder’s contention, for there it read “amount of purchase money of a plot of ground eight feet by eight feet.” That receipt was also more complete and specific, in that it particularized and numbered the graves for which the plot of ground should be utilized. I quote the form of this enumeration: “4 graves, 5, 6, 7, 8.” Here we have nothing of the kind. There is proof in the case that the located grave would hold four bodies, and, perhaps, even more; but who shall say that the parties contemplated packing the earth, two feet by eight, in such an extremely economical fashion ? Is it to be implied from a receipt for the purchase money of a grave, that receipt standing alone and with.out a scintilla of evidence tending to pluralizo the expression? I cannot think it. How, upon these facts, what, in law, were Mr. McGuire’s precise property rights ? Were they such as can be specifically enforced by his administrator in a court of equity? That is the real question. How, in the first place, it is very clear that the right of burial is either an easement or a license. If an easement, it is an interest in the land. If a license, it is not. In the former case, the right is permanent. In the latter, it is personal and revocable. There are some subtle suggestions in the old cases with regard to irrevocable licenses founded upon good consideration. It seems to me, however, that when we talk of an

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irrevocable license, founded upon a good consideration, we simply run into the domain of easements. However that may be, it is-not claimed that McGuire here acquired an easement; nor, indeed, could such a claim be defended, for the simple and sufficient reason that there was no grant The learned counsel for the plaintiff rests his claim upon the purchase of a license or privilege, which he contends was irrevocable, and enforceable by bill for specific performance.

If, however, McGuire acquired no interest in the land, as is-fully conceded in the appellant’s second point, and as is unquestionably the law, it is difficult to see what basis there can be for a decree that the land be perpetually burdened.

If the plaintiff proceeds as the successor of a mere licensee he is met by the principle of revocation, and also by the rule that courts of equity will not specifically enforce such privileges. Mr. Pomeroy, in his work on Specific Performance, § 132, says that- “ in certain states a parol license to enter upon and occupy land of the licensor, and to do acts thereon, if partly executed by the-licensee, so that injury, which is technically called irreparable, would be caused by its revocation, will be specifically enforced. * * * This rule is undoubtedly opposed to the common law doctrine concerning licenses as it prevails in England and in most of the American states.” In a note to this section it is said that the proposition stated in the text is most strongly maintained by the decisions of the Pennsylvania courts. These Pennsylvania cases, notably Rerick v. Kern, 14 Searg. & Rawle, 267, were considered by Duer, J., in Jamieson v. Millemann, 8 Duer, 255 . That learned judge said: “It could not be denied that the supreme-court of Pennsylvania had there held that a paroi license may, in special cases, have the full operation of a grant; but the decisions-of Pennsylvania stand alone, and will be found upon examination to proceed upon a doctrine which is peculiar to the courts of that-state.” * * * “ As evidence of the law we are bound to administer,” these decisions “ have no authority whatever.” Judge Duer also points out the distinction between an executed license, the effect of which is merely to suspend the enjoyment of an easement, as in Winter v. Brockwell, 8 East, 308, and a license warranting acts to be done by the licensee upon the lands of the licensor. In the former case, the doctrine is nothing more than that, by a paroi license without a deed, the enjoyment of an easement may be waived or extinguished. This doctrine of Winter v. Brockwell, and also of Moore v. Rawson, 3 B. & C., 332, and Liggins v. Inge, 7 Bing., 682, is said to be wholly inapplicable when “the effect of holding the license to be irrevocable would be to give the licensee a permanent interest or easement in the lands of the licensor,” and the learned judge adds that “ this has been so determined in numerous cases in the English courts, in those of our sister states, and emphatically in our own.” See the cases cited by Judge Duer in support of this latter statement, page 260, to which I add Wolfe v. Frost, 4 Sandf. Ch., 72 . As Chief Justice Savage said in Mumford v. Whitney, 15 Wend., 393 : “ To decide that a right to a permanent occupation of the plaintiff’s land may be acquired by

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paroi, and by calling the agreement a license, would be in effect to repeal the statute.”

It follows that, as plaintiff has no grant, and consequently no easement, and as his license is revocable, and cannot be specifically enforced, he has no property rights whatever which will authorize a court of equity to grant him the extraordinary remedy of a mandatory decree.

The question remains, whether a case has been made out for a specific performance of a paroi agreement for the grant of an easement. In Wiseman v. Lucksinger, 84 N. Y., 38 , this question was considered upon facts somewhat analogous to those now before us. The court first discussed the claim of license, holding that “ a right of drainage through the lands of another is an easement requiring for its enjoyment an interest in such lands which cannot be conferred by paroi license; it can only be granted by deed or conveyance in writing.”

The head note disposes of the question of consideration in these words:. “ A mere license to drain is not made irrevocable by the fact that a valuable consideration was paid therefor.”

In answer to the remaining contention, namely, that courts of equity would give effect to parol agreements for the grant of easements when founded upon a valuable consideration, Danforth, J., observed that “ the contract which equity will regard as equivalent to the grant required at common law, or by the statute, must be a complete and sufficient contract, founded not only on a valuable consideration, but its term defined by satisfactory proof and accompanied by acts of part performance unequivocally referable to the supposed agreement; ” and again: “ There are, no doubt, many cases in which the courts recognize an equitable right to an easement without a deed; but there will be found in them either an express agreement for an easement, or an acquiescence or consent by conduct which has led to the erecting of permanent works, or valuable and lading improvements, or some other fact which would make the assertion of a legal title operate as a fraud, upon the setting up the equitable right.”

The doctrine of this case was reaffirmed in Cronkhite v. Cronk hite, 94 N. Y., 323 . Miller, J., repeated the language of Danforth, J., which I have quoted, and he referred to the facts of the former case in these words: “ In the case of Wiseman v. Lucksinger, the plaintiff had paid a sum of money for permission to drain his lot upon the land of the defendant, and took a receipt for the same, and he used and enjoyed the privilege for twenty-five years, when the defendant revoked the permission. In an action to enforce the right of the plaintiff, it was held that the right to drain was an easement which could not be conferred by paroi license, but could be granted only by deed or conveyance in writing, and that an oral contract which equity will regard as equivalent to the grant required at common law or by statute must be a complete and sufficient contract in all its parts."

These cases were referred to with approval, and cited in support of like propositions, in Duryee v. Mayor, 96 N. Y., 484 , and Fargis v. Walton, 107 id., 403; 12 N. Y. State Rep., 60

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It is apparent from the statement of facts with which I have prefaced these legal considerations that the present case, treated even as a bill for the specific performance of a parol agreement for the grant of an easement, falls far short of what is required by the principles enunciated in these authorities. In all of the cases there was at least some oral testimony in support of the parol agreement. It was not left entirely to the implications deducible from a mere receipt for money. Thus, in Wiseman v. Luck- singer, supra, the plaintiff testified to the paroi agreement, page 43, and the defendant denies the receipt of the alleged consideration. The plaintiff also proved the loss of a receipt, said to have been given to him by the defendant, which one of the witnesses testified was in the following form: “Received of Joseph Wiseman $7 for the right to drain through my premises ;”a receipt singularly analogous to the present. The plaintiff’s contention there was that a valid contract must be implied from these words : that the defendant thereby agreed, for the expressed consideration, to cede to the plaintiff the right to drain through his lands, and that equity would enforce the agreement. But the court denied the completeness of the contract to be implied from this receipt, even when read in the light of the oral testimony behind and supporting it, and denied relief because the agreement was not entirely clear in all its parts. The court also denied relief because there had been no part performance within the rules laid down in courts of equity. Referring to the latter head, Danforth, J., observed that the receipt contains “ a mere license or permission to drain, and no agreement to convey an easement; nor is the license coupled with any interest in the land. It was therefore revocable, and its revocation did not operate as a fraud upon the plaintiff. His expenditures were trifling, and, for aught that appears, have been more than repaid in the use already had by the plaintiff of the privilege given to him.”

The conclusion of the court upon this branch of the case was that “ the agreement to he implied from the receipt was undoubtedly good as a license, giving to the plaintiff immunity while acting under its privilege, but no vested right entitling him to its use and enjoyment against the will of the ” defendant.

The case of Cronkhite v. Cronkhite, is also very much in point. There the paroi agreement was for the laying down of pipes to carry water from a spring on the licensor’s lands, first, to the licensor's buildings, and, second, to buildings on the licensee’s lands. The referee found as a fact, on the oral testimony, “ that it was agreed that Henry 0. Cronkhite, the licensee, should bear one-half the expense and perform half the labor of procuring and laying down the logs and pipes, etc.; and that, in consideration of such expenditure and labor, he should have a right to take water from said spring through logs and pipes in perpetuity.”

Upon this, Miller, J., observed that “the testimony upon the trial established a parol contract between John C. Cronkhite, the licensor, and Henry C. Cronkhite, whereby Henry C. was to take and use the water, and there was proof that both parties acted in accordance with that agreement. Money was expended by Henry

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C., pipes were laid down and improvements made in connection with the use of the water, but there was no specific agreement as to the size of the pipes, the amount of water to be carried through them, how far below the surface they were to be laid,” etc.

It was accordingly held that the agreement could not be em forced. “ Disagreements,” said Judge Miller, “ might also arise as to how and when and where the pipes should be laid and repaired, and as to the manner in which the spring should be protected, and thus it would be difficult for a court of equity to determine the precise character of the agreement The evidence given upon the trial was too vague and uncertain to establish a valid agreement in perpetuity such as the law recognizes. The statute requires an agreement of this character to be in writing, expressing a consideration, and to establish it otherwise, by adverse possession, the proof should be entirely clear as to the nature and specific character of the agreement, so that it can be eventually carried out and enforced.”

In Kincaid’s Appeal, 66 Pa., 411 , an instrument of far greater weight and importance than the present receipt was spoken of as a “very loose paper.” The court there refers to the instrument as follows: “ The certificate set out in the bill states that the subscriber, in consideration of ten dollars paid by him, is entitled to two burying lots in the burying ground of said church, to have and to hold the said lots for the use and purpose and subject to the conditions and regulations mentioned in the deed of trust to the trustees of said church. * * * We cannot consider this certificate as evidence of a grant to the lot holders of any interest or title in the soil; taking it for a grant it is only for the life of the lot holder, and at the very time it would be needed for his own interment his title would cease. Without accompanying conditions and regulations, it is a very loose paper.”

In Dwenger v. Geary, 113 Ind., 106 , where the Coppers case is commented upon, quoted from and approved, the receipt seems to have been in substantially the same form as the present. The court found that John Geary had never received any conveyance. “ The only instrument executed,” said the court, “ was a receipt for money; this and nothing more does he, Geary, hold in the form of a written evidence of title. It is clear, therefore, that he is a mere licensee. This license conveys no interest in the land; it does no more than confer a privilege.”

In that case the supreme court of Indiana was not considering the possibility of specifically enforcing such a privilege. The question was, whether an injunction should be granted to the authorities of the church, restraining the receipt holder from attempting to exercise the privilege implied by its terms; and such injunction was granted.

And in Maryland, Partridge v. First Independent Church, 39 Md., 631 , it was held that a certificate with words of grant to the party, “ his heirs and assigns forever,” conveyed “ no estate or title, nor a grant of an easement, because the instrument was not under seal and recorded, so as to be effective to convey such interest.”

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It seems useless to multiply authorities upon this point, for the present case is not as strong in its equity as the weakest of those already cited.

In the absence of any paroi testimony and standing upon the naked possession of the receipt, how is it possible here for a court of equity to decree specific performance [of a supposed contract for the grant of an easement? We are asked to imply all the terms of a complete and specific agreement from the words in the receipt, “ amount of purchase money of a grave two feet by eight in Calvary Cemetery,” the two feet by eight being located beneath the superintendent’s signature as “ grave 9, plot F., section 8, range 56.”

The amount of purchase money of a grave. Was the contract completely fulfilled when “ a grave ” was opened for Mrs. McGuire and her body permitted to rest there ? Can it be said that even that question is entirely free from doubt ? Or was the contract personal to McGuire, and did it terminate, as suggested in Kincaid’s case, supra, upon Ms death ? If the agreement to be implied from the receipt passed to McGuire’s administrator, what actual right thus passed ? If this receipt implies a property right to burden the soil with as many bodies as can be decently placed in the located two feet by eight, can this administrator renew his demand from time to time ? If so, can he place there, for a consideration paid to Mm as the representative of McGuire’s estate, the bodies of strangers in blood to the family, provided they are catholics? Could McGuire himself have done that under this receipt ? And in this process of burdening the soil with numerous bodies, in or out of the family, how deep might McGuire have dug, and how deep may this administrator now dig ? The mere outlining of these questions clearly indicates that the receipt, to again quote the language used in Kincaid's appeal, “ without accompanying conditions and regulations, is a very loose paper.”

We look in vain throughout this case for any such accompanying conditions or regulations. Even the cemetery rules, so far as they were read in evidence and appear in the printed case, shed no light upon the obscurity involved in the language used in this receipt; nor do they indicate, directly or indirectly, the precise terms or the specific conditions of the agreement. Nor does the undertaker’s testimony, as to the usage of the cemetery, establish any definite rule either as to the allowable depth of the grave or as to the number of bodies which the receipt holder is permitted to place there, or as to the character or personality of the occupants. The entire testimony on that head was as follows:

“ Í have been in the undertaking business about fourteen years, and during that time have made a great many interments in Calvary Cemetery, and am familiar with its regulations. In the old ground graves are usually dug eight feet deep, and in the new ground now they are dug nine feet deep. The grave described in plaintiff's Exhibit A is in the old cemetery. It is usual to bury more than one body in a grave.

“Q. How many bodies can be safely and properly buried in this grave ? A. Four bodies, and sometimes more. I have got three

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in mine, and there is room for two more. I have known numerous cases in which two or three bodies have been buried in one grave in Calvary Cemetery. I can name my own case; my sister and father and mother, and room for two more.”

The case on this head is thus clearly within the principles laid down in Wiseman v. Lucksinger and Cronkhite v. Cronkhite, above cited.

It is also within the rule as to part performance. The act of permitting Mrs. McGuire’s body to burden the soil was in no proper sense an act or part performance. It was simply a partial enjoyment of the privilege. It was an act of burden on the part of the licensor, of enjoyment on the part of the licensee. McGuire never expended a penny upon the grave. The trustees were guilty of no such conduct as to lead McGuire, to quote again Judge Danforth’s words in Wiseman v. Lucksinger, “to erect permanent works or valuable and lasting improvements.” Nor was there any other fact which would make the revocation of the license or the refusal to fulfill the implied obligation, whatever it may have been, a fraud upon McGuire or his legal representatives. It does not appear that McGuire ever placed even a headstone upon his wife’s grave. The part performance therefore, or the complete performance, as the receipt may be viewed, was wholly •on the side of the licensor. And, as we pointed out in the Coppers case, the payment of the consideration did not operate as such part performance. Coppers Case, 194, citing Story’s Eq. Juris., § 760 ; Rhodes v. Rhodes, 3 Sand. Ch., 284 . See also on the point under consideration the cases already cited of Wiseman v. Lucksinger and Cronkhite v. Cronkhite.

I have thus considered this case precisely as though the rights of property claimed by the plaintiff had come from a secular cemetery. But when we consider that the transaction was with a -strictly denominational cemetery, the weakness of the plaintiff’s equity is still more strikingly apparent. The record contains an express admission by the plaintiff of the allegation in the answer that the cemetery lands in question were set apart and consecrated with appropriate religious ceremonies, by the ministry of a priest or priests of the ¡Roman Catholic Church, for the exclusive purpose of the burial of the remains of persons who may die in communion with that church. McGuire was a Catholic. As such he entered the denominational domain; as such he obtained the receipt in question from the denominational cemetery office. What transpired at the time he so obtained that receipt is, as we have already .seen, entirely unknown. What may safely be affirmed, however, is that he sought burial privilege in a denominational cemetery thus consecrated to the exclusive purpose of the burial of those dying in communion with the church. That denominational rule must certainly be implied, as part of the agreement, from the receipt, and the surroundings under which it was sought and obtained.

It is as though the receipt had read: Received from John McGuire, $10, being amount of purchase money of a grave two feet by eight in the ground of Calvary Cemetery, which has been consecrated for the exclusive purpose of the burial of the remains of

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persons who may die in communion with the Roman Catholic-Church.

That is the paroi agreement; the only one which can possibly be implied. The plaintiff, too, recognized this, for he averred in his complaint that McGuire died in the Catholic faith and in communion with the church. And it was only when, upon the trial,, the difficulty of proving affirmatively the latter assertion weighed upon him, that he struck it from his complaint, and claimed that it was superfluous.

Now, who is to determine whether McGuire died in that communion? Mr. Justice Daniels admits that it is the hierarchy, but he thinks that the chosen judges of the church must proceed according to the principles of the common law; that they can only act upon evidence, as applicable to church law; that the accused is entitled to a hearing, and that if those “first principles ”' which govern in the ordinary administration of justice are ignored,, the authorities of the church exceed their jurisdiction when they decree that the holder of the receipt died out of communion with the church. With great respect and diffidence, I venture to differ with the conclusion. In my judgment, McGuire contracted for the exclusive jurisdiction of the church with regard to the question of communion. Spiritual questions are solely for the determination of the church authorities. Over their action in the domain of church discipline or excision the civil courts exercise norevisory power. Shannon v. Frost, 3 B. Mon., 253 . There the-court said: “We cannot decide who ought to be members of the-church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly, cut off from the body of the church. We must take the fact of expulsion as conclusive proof' that the persons expelled are not now members of the repudiating-church; for, whether right or wrong, the fact of excommunication must, as to the fact of membership, be law to this court.” The-same doctrine was maintained by the supreme court of Pennsylvania in German Reformed Church v. Seibert, 3 Pa. St., 291 ; and the additional suggestion was there made that under no circumstances would the civil courts interfere until the wronged party has" exhausted his remedy within the-church by appeal to its highest tribunal. This doctrinéis peculiarly applicable to the present case, where it is conceded that an appeal to Borne lay from the decision of the ordinary of this diocese forbidding the burial of McGuire, and that no such appeal has been taken. The language of the Pennsylvania court, is exceedingly apt, and I quote the most material part of it: “ If,., therefore, the relator is injured by the decree of the consistory, his remedy is by appeal to a higher ecclesiastical court, which no-doubt, and. it is indecorous to suppose otherwise, will afford him redress by reversing whatever may have been done by the inferior-court inconsistent with the canons of the church. That the power of the classis and synod is advisory only matters not, as we cannot suppose their decision will be disregarded; and, if it should be, it. will then be time enough to seek redress from the civil authorities. The decisions of ecclesiastical courts, like every other judicial tri

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bunal, are final; as they are the best judges of what constitutes an offense against the word of God and the discipline of the church Any other than those courts must be incompetent judges of matters of faith, discipline and doctrine.” To the same effect, in substance, are the decisions in Dieffendorf v. Reformed Calvinist Church, 20 Johns., 12 ; Robertson v. Bullions, 9 Barb., 64 ; affirmed 11 N. Y., 243 ; People v. German, etc., Church, 53 N. Y., 103 , and Dwenger v. Geary, supra. In the latter case the court said that “ no power save that of the church can rightfully declare who is a Catholic. The question is purely one of church government and discipline, and must be determined by the proper-ecclesiastical authorities.” And again: “ Under the discipline and doctrines of the church, as enforced by the functionaries invested with the power and duty of deciding questions of doctrine and discipline, James Geary was not a Catholic, and this, decision is final and conclusive.” On the same principle,, the decision that McGuire, although a Catholic, did not die in communion with the church, was final and conclusive until reversed; reversed not by the civil courts, for they have no-jurisdiction under a constitutional system which, happily, separates church and state, but by the highest authorities of the church itself. To attempt to exercise jurisdiction in such matters upon the plea of want of jurisdiction in the church authorities of first-instance would be the entering wedge whereby the symmetry of our governmental system with regard to church and state might readily be destroyed. And, after all, what do we question, when looking into the ordinary’s jurisdiction, but his procedure? fib ail we go further, and decide that he has no jurisdiction, within his. sphere, to decree that a Roman Catholic died out of communion with the church, because the testimony upon which he actéd was unsupported by an oath? Must he also notify the next of kin, or the executor or administrator, of a proposed hearing, produce his witnesses in their presence, permit them to cross-examine, and then to produce their own witnesses? Is he without jurisdiction if he deny them counsel ? And all this while the dead body is. waiting his decision. Where does the right to question the jurisdiction begin, and where does it end ?

It seems to me that the ordinary’s jurisdiction in spiritual matters cannot be questioned by the civil courts at all. He may act upon the best light £e can obtain, however informal the source, and we cannot review his judgment, however out of touch with common-law principles may have been his means of ascertainment. If the ordinary acts capriciously or arbitrarily, there is an appeal to-Rome. If the appellant is there again defeated, it will be time enough to inquire whether he has or has not contracted for the possibility of such injustice; and whether, even then, the facts and the laws applicable thereto would warrant a court of equity in entering the spiritual domain to redress a mixed temporal and spiritual wrong. For we cannot overlook the fact which pervades this entire controversy that it is not the mere right to be buried, in two feet by eight of ordinary earth which the plaintiff seeks to en

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force, but plainly the right to be so buried in consecrated earth. It is thus the spiritual right which, in substance, he asks us to enforce; that is the agreement, so to speak, for consecration predicated upon communion. The rest is but a temporal incident. The world is all before this plaintiff to secure for his testator mere burial. The secular cemeteries, with their regular and binding deeds, were open to McGuire, and are yet open to his representative. But that is net what is required or desired. What the plaintiff insists upon is the burial of McGuire in the same consecrated earth where the body of his wife now rests. That, however, is something which the civil courts are powerless to compel, under such a contract or understanding as that which here forms the basis of the plaintiff’s rights and of this action. The Guibord Case, Brown v. Cure of Montreal, L. R., 6 P. C., 157, from which the learned counsel for the appellant quotes so fully, has no conceivable applicability here. That case proceeded upon rules referable to a system in which church and state are blended. Under that system a British subject is 'entitled to burial in his parish church-yard without regard to contractual locality, and the question of his right to such burial is essentially for the civil courts in the exercise of their quasi ecclesiastical jurisdiction. The privy council, in opening the discussion, declared that the question to be decided was “ the right of Guibord to interment in the ordinary way in the cemetery of his parish. * * * It may be observed that the cure and marguilliers are only proprietors of the parochial cemetery in the sense in which a parson of England is the owner of the freehold of the church-yard; that is to say, subject to the right of the parishioner to be buried therein.” In that case the church authorities offered to permit Guibord’s burial in that part of the cemetery which was unconsecrated. But the court determined that he was entitled to be buried in the consecrated part, and even queried whether they might not command the church to so bury him with its ordinary and appropriate religious rights and service. “ The payment of dimes to the clergy of the Roman Catholic Church,” said the court, “ by its lay members, and the ratability of the latter to the maintenance of parochial cemeteries, are secured by law and statutes. These rights of the church must beget corresponding obligations, and it is obvious that this state of things may give rise to questions between the laity and clergy which can only be determined by the municipal courts.” Even the observation made by Lord Phillimore, that “ if this church were to be regarded merely as a private -and voluntary religious society, resting only upon a consensual basis, courts of justice are still bound, when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to inquire into the laws or rules of the tribunal or authority which has inflicted the alleged injury,” must be taken as applicable to the parish churchyard system; that is, to the parish church-yard or cemetery of any private and voluntary religious society in the kingdom, resting only on a consensual basis. The general right of a British subject, a member of such society, to burial in its

Concurrence

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parish church-yard or cemetery, is thus held to be a matter for consideration and adjudication by the courts construing the laws or rules of such consensual society. Throughout the case there is not a suggestion of contractual relation, nor of a right to burial in any particular plot. It was simply a judicial review, authorized by the law of England, of the action of the Roman Catholic Church in Canada; and thereupon the privy council examined the laws of the church, and held that its authorities had erred. We have no such system of jurisprudence here. In this, I must be permitted to say, we are fortunate, for, while human nature is what it is, there must always be more or less of religious faction, with its intensity of bitterness, in every theological establishment, however well disciplined and authoritative. And I can conceive •of nothing more surely tending to weaken respect for judicial authority than the bringing of such factional controversies before "the ordinary tribunals of our country, and making the people’s judges final arbiters thereof.

In conclusion, I must say a word with regard to the present record. I have been somewhat embarrassed by the peculiar character of the findings made by the learned judge at special term. They seem to me to be inconsistent and contradictory in some important particulars, and they can only be reconciled by treating the eleventh, thirteenth and fourteenth findings of fact as really conclusions of law erroneously deduced from the accurate findings of fact numbered second, third and fourth. The latter findings are supported by the uncontradicted testimony, while the subsequent findings to which I have referred, as well as the first and second conclusions of law, are implications not borne out by such testimony. But as, upon the pleadings and proofs, the latter undisputed, and the findings of fact really applicable to such proof, the third legal conclusion, namely, that the complaint be dismissed, was fully justified, the judgment appealed from should be affirmed, with costs.

I concur in the conclusions arrived at by Mr. Justice Barrett. I think that he has conclusively shown that whatever contract the facts proven establish, if any, is of so vague .and indefinite a character that it cannot be specifically enforced by any court. I think that he has further shown that all that the deceased received was a license which was revocable. Mo grant •or irrevocable right or easement was ever given him, and could not be, by the paper he received, without in effect repealing the provisions of the statute in respect to conveyances of interest in land. If it were possible to hold that there was a valid contract for burial only, and not for any interest in land, there seems to be another ground which is fatal to the plaintiff’s claim. There is no evidence but that, if the deceased’s rights of property have been invaded, his estate can be entirely indemnified through an action at law for damages. If it is urged that damages cannot indemnify for the deprivation of burial in this consecrated ground, then the •court is called upon to decree that a church shall administer to one who claims to be of its communion its religious offices, and

Dissent

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the court is called upon to determine whether the person is or is-not in full communion with the church. I think that it will hardly be claimed that a court could rightfully direct a church to-administer a sacrament to a person who claimed to be entitled thereto, bnt whom the church authorities had declared not so to-be; and yet, in the case at bar, this is substantially what the court is called upon to do. It is asked to compel the burial of this man in a particular location, apparently because it is consecrated ground, because, if it is not burial in consecrated ground' which is asked for, but simply burial, then sepulture in a nondenominational cemetery would attain the object, and damages-would compensate for all invasion to property rights. Under our form of government we do not think that courts can be called upon to compel churches to administer religious rites to persons-claiming to be its members, or perform an act in any way impressed with that character. The judgment appealed Rom should be affirmed, with costs.

(dissenting.)—The action has been brought to-secure the interment of the remains of John McGuire, deceased,, in Calvary Cemetery, Queens county, in the state of New York. The cemetery was acquired and controlled by the defendants-under an act of the legislature conferring that power upon the-trustees of St. Patrick’s Cathedral. The intestate died on the 19th of February, 1888, and an application was made for his interment in the cemetery, which was refused by the trustees, under the direction of the clerical authorities of the Catholic Church. In his lifetime, the intestate, for the sum of money mentioned in. it, received the following receipt and agreement:

“No. 726. Calvary Cemetery, )

“New York, November 22, 1870. j

“ 266 Mulberry street

“ Received from John McGuire, ten dollars, being the amount of purchase money of a grave, two feet by eight, in Calvary Cemetery, with privilege to erect a head-stone thereon.

“D. Brennan, Supt. of Office of Calvary Cemetery.

“ Grave 9, plot F, section 8, range 56.”

And prior to his own decease the grave mentioned in the instrument was actually located, and the remains of his wife were interred therein. The grave, as it was located, was sufficient in capacity for the interment of more than two dead bodies; and the object of the action, as well as of the application to the authorities controlling the cemetery, was to secure the interment of the remains of' the intestate in the same grave; and by the language of the instrument, and the location of the grave, his representative was entitled, to insist upon that right, if the intestate had observed the laws and discipline of the church under whose authority the property was-, acquired and controlled. The instrument, as it was issued, and under which the grave was located, created a privilege or license-to this effect, without conveying a title to the land. Kincaid's Appeal, 66 Pa. St., 411 ; Page v. Symonds, 63 N. H., 17 ; People

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v. Trustees, 21 Hun, 184 . And the administrator was empowered to secure this interment if the intestate had complied with the laws of the church controlling the cemetery up to the time of his decease. 2 Bl. Com., 508; Williams v. Williams, L. R., 20 Ch. Div., 659. And that was the view which was adopted and followed in the decision made at the special term; for it was there held by the court that the plaintiff as the personal representative of the deceased, was vested with whatever right existed to enforce the contract to be implied from or contained in this instrument The action, accordingly, did not fall because of any infirmity in the right of the plaintiff, as the personal representative, to maintain it, if that could be done legally upon the facts made to appear by the evidence.

Upon the trial of the action, accepted compilations of the laws ■of the church were proved and read in evidence, and these laws or regulations defined and declared the causes for which the interment of a deceased person might be forbidden in the consecrated cemetery and grounds of the church; and so far as they existed, and were applicable to this subject, they are required to be observed in the determination of the controversy which has arisen concerning the right of the deceased to burial in this cemetery. By these laws or regulations it was necessary that the deceased should have been during his life a member of the Catholic Church. If he were not such a member, then his personal representative could claim no right to the interment of his remains in these grounds. Dwenger v. Geary, 113 Ind., 106 . But the right to the interment of these remains was not denied for want of any compliance on the part of "the deceased with this regulation or requirement. Neither could it have been; for it was stated positively by the daughter of the deceased, who was sworn as a witness upon the trial of the action, that her father was a member of the Catholic Church in his lifetime, and she was no further interrogated as to the correctness of this statement made by her. It appears to have been accepted as truthful, and it was assumed during the progress of the trial that he was a member of this church. And the complaint, as it is contained in the case, asserts that to have been the fact; for no more was stricken out on the application of the plaintiff than the statement that he died in full communion with the church, leaving the ■complaint, as it now forms a part of the case, with the allegation that he did die in the faith of the Roman Catholic Church. And it was not for want of any additional evidence as to this fact that the interment of the remains in the cemetery was denied by the authorities of the church or by the trial court. But that denial appears to have proceeded upon the conclusion adopted by the court that it properly belonged, under the usage and discipline of the church, to the decision of the ordinary of the bishop of New York to determine whether the deceased was entitled to be buried in this cemetery; and the ordinary having made a decision adversely to this right, upon evidence sufficient to give him jurisdiction to act, the remains were not entitled to burial in the consecrated ground of the cemetery.

It is, undoubtedly,' the law that the courts will not review con

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elusions or decisions of the ecclesiastical authorities of the church relating to mere matters of faith, practice or discipline. Dutch Church v. Bradford, 8 Cow., 457 ; People v. German, etc., Church, 53 N. Y., 103 ; Shannon v. Frost, 3 B. Mon., 253 ; and German, etc., Church v. Com., 3 Pa. St., 282 , 291. But this exclusive authority vested in the church is not applicable to the disposition or determination of rights or interests in property, or those derived from contracts lawfully entered into. As much as that was stated in Bouldin v. Alexander, 15 Wall., 131 . And it necessarily follows from the nature of the transactions through which rights or interests in property, by virtue of contracts, may be created, that they are to be governed by the secular law, as they are distinguishable from ecclesiastical subjects, and may only be divested, impaired, or forfeited by reason of sonie act or circumstance upon which the right or contract has been made dependent, or for the violation of rules or regulations which by the sanction and intention of the parties have been made applicable thereto. Eights of this description are recognized and protected by the general law of the state, and that has carefully defined the manner in and the causes for which they may be lost or forfeited; and under that law, if the deceased, as a matter of fact, had violated or failed to observe any of the laws or regulations of the church applicable to and controlling this contract, then the plaintiff could not claim or insist upon his interment in this cemetery. But neither one of these rules or regulations vested the clerical authorities of the church with jurisdiction to determine this right of interment in such a manner as to conclude the party entitled to insist upon the observance of this agreement. No hearing whatever has been provided for or took place before the vicar general, by whose order the interment of the remains in these grounds was forbidden; but he acted solely upon information which he had received from no directly responsible source, in reaching the conclusion that the deceased had forfeited his right to this burial. This was done, according to his own testiitiony, upon mere information, not a safe subject to be relied upon in any case for the determination of rights of property or contract, and the determination was made without any notice to, consultation with, or hearing of any person entitled to represent the deceased, or to controvert the correctness of the information received by this clerical official; and under these circumstances the law will not permit a determination arrived at in this manner to forfeit the right which the deceased may have secured through this instrument to burial in the consecrated cemetery of the church. The legal principle, on the contrary, has been declared to be that “ there is nothing which our law denounces more explicitly than an adjudication of the rights of a party without offering him an opportunity of being heard in his defense.” People v. Soper, 7 N. Y., 428 , 431, and Loubat v. Le Roy, 40 Hun, 546 ; 1 N. Y. State Rep., 178, follows and enforces this principle.

The determination which in fact was made in this manner proceeded unon information that the deceased had died at the Academy M Music at a meeting addessed by Dr. McGlynn, who had

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beer sxcommunicated from membership in the Catholic Church, and that he vas in reality a confederate and abettor of this deposed priest. The vicar general had been informed that McGlynn had abused and denounced the pope, and it was considered a scandal for any good Catholic to be present at his meetings. His own testimony is that he did not know the deceased, but that he had “ heard that he had been applauding Dr. McGlynn in abusing the pope a few minutes before his death.” Upon his cross-examination he testified that it was a public fact that the deceased had died there. Thereupon the following questions were put to and answered by the witness: “A. I was not there; I did not see him die.

“Q. You say it came up from the trustees; by what means ? A The undertaker called upon them.

“Q. How do you know ? A. The clerk told me.

“Q. His name ? A. Mr. Brennan.

“Q. Where did he tell you so? A. Oh, I can’t remember the-exact spot

“Q. When did he tell you so? A Either the day after his death, or the following day.

“Q. What was said? A. Simply the fact that he died at the Academy of Music.

“Q. And on that you issued the order forbidding the burial ?’ A. I did, sir.”

These reports, with the exception of that as to the fact of the deceased dying at the Academy of Music, were of a loose and unreliable character, and could not legally have been the subject of binding action by the vicar general. They , were in no sense so authentic as to warrant or justify the conclusion that the deceased approved of the actions or expressions of McGlynn, or applauded any remarks or imputation made by him at the meeting, in this manner referred to, or at any other, and afforded no grounds of jurisdiction upon which he could legally or properly act in declaring the right of the deceased, under this contract, to have been ' forfeited by any misconduct on his part. The evidence was not, of such a nature as to be acted upon, and therefore afforded no jurisdiction over the subject-matter; and the want of jurisdiction, or the power to act, may be questioned in the courts by legal proceedings whenever the legality of the action taken shall be brought in controversy. Ferguson v. Crawford, 70 N. Y., 253 ,, 257; Cagwin v. Town of Hancock, 84 id., 532, 541; Craig v. Town of Andes, 93 id. , 405. And to afford jurisdiction by way of support for a quasi judicial determination, it must proceed upon at least colorable evidence of the fact. But here no such, or indeed any, evidence was supplied, and this, as well as the circumstance that the consideration given to the subject was wholly without notice or an opportunity to be heard by any person interested in protecting the right of the deceased against these aspersions, rendered the determination which was made inoperative for the want of authority over it.

But beyond this, according to the laws and regulations of the church, which may have been made a part of the evidence in the

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case, the deceased could not be deprived of the right to burial in this cemetery by a simple determination that it had been forfeited or lost by him. For the laws of the church have made this disability to depend entirely, where the deceased shall have been .a member of the Catholic church, upon some act, misconduct or omission of the deceased. These laws and regulations have in no manner provided that the right to burial in the cemetery under an instrument of this description can be taken away merely by the dictum or decision of a member of the church hierarchy. But the right to such burial by these laws has been declared to be lost, or forfeited, only by reason of actual misconduct on the part.of the person in whose behalf it may in this manner be claimed. It is a penalty imposed for misconduct either by means of affirmative acts or delinquent omissions to act on the part of the deceased. Among the causes for which burial in consecrated ground may be refused, are the fact that the deceased died a public sinner, or that he failed to perform some affirmative duty forming a part of his obligations as a member of the church, or had committed some act of scandalous misconduct. The law of the church in these and other matters attaches the loss or forfeiture to the act itself, or to the delinquency of the party, and not to a mere dictum or determination of any member of the clerical authority of the church. And to bring this case within these laws it was necessaary, therefore, that the deceased should be shown as a matter of fact, by way of defense to the action, to have violated or become chargeable with some act of misconduct prohibited by them, thereby forfeiting under their authority his right to burial in the consecrated ground of the church. But no such proof in any form has heen included in or made a part of this case.

The evidence concerning the conduct of the deceased was obtained from witnesses either related to or knowing him well, and seeing him. at meetings of the Anti-poverty Society, and of the parishioners of the church of which McGlynn had previously been the pastor. But no witness testifies to the fact ifhat he was present on any occasion when McGlynn addressed the people who were assembled, or that he in any manner had applauded or approved of his conduct, or sentiments, or the principles which he endeavored to maintain. And upon the occasion when he was at the Academy of Music, the proof is positive from at least two witnesses, whose evidence is not contradicted, that he died half an hour before the proceedings of the meeting had commenced, and before Dr. McGlynn made his appearance. All that was shown against him was that he was present at the meetings already referred to, but not when Dr. McGlynn was either officiating, or mating any remarks or allusions whatsoever. There was no evidence that upon any occasion he had either misconducted himself, or neglected any of his duties, or obligations, as a member of the Doman Catholic Church. And that was the view which was adopted by the judge presiding at the trial, for by his fifteenth finding he found the facts to be, “ That the said John McGuire did not at any time after the said 22d day of November, 1870, violate any of the rules or regulations for the management of said cemetery

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and interments therein theretofore made by the defendants, nor any laws of the Roman Catholic Church theretofore made respecting the burial of the bodies of its deceased members.”

And in this state of the evidence, as it cannot be affirmed that he had violated any rule or regulation of the Catholic faith, it follows that he did not forfeit his right to burial in this cemetery.

If, upon a mere mistaken view of the facts produced by unfounded reports, which is all that was before the Vicar-General, this right of burial may be forfeited, then no security can certainly exist for the protection of any person acquiring and paying for this privilege of burial.

For even the most correct religious deportment may be sacrificed by the malignant and untruthful reports of persons misrepresenting the acts, conduct or sentiments of deceased persons. Instead of the right being maintained as the law requires it to be, as one of a proprietary character, it may then be overthrown or forfeited after the decease of the party securing it, without any available means of avoiding the result. Ho Catholic, whatever his standing may be, will be entirely removed from this danger, if upon mere reports, turning out as they have in this instance to be untruthful and unfounded, he can be deprived of burial in the consecrated ground of his church by the action of one of its officials, induced by reliance upon these reports. The only safety which exists is that already indicated in reliance upon and maintaining the laws of the church itself, which require not rumors or information, but that actual misconduct or the omission to observe specific obligations shall be proven to have taken place before a contract or instrument of the description of that for a good consideration delivered to the deceased, shall be forfeited or avoided. That proof is wholly wanting in this case, and the judgment should be reversed and a new trial ordered, with costs to the plaintiff to abide the event.

Judgment affirmed, with costs.