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254

O'Donnell et al. v. Holden et al.

decision of our Supreme Court in Mannix against Purcell. I assume it to be a fact that the title to the property, that is to these lots in controversy, was in Archbishop Purcell, leaving for consideration the nature of the title. I assume it to be a fact that he made the mortgage to secure his individual debt, and that the debt was one which in no way benefited St. Gabriel's church. I assume the law to be as settled in the case of Mannix against Purcell, recently decided by our Supreme Court, that if Archbishop Purcell held the property in controversy in trust for St. Gabriel's church, then he could not encumber that property by a mortgage to secure his individual debt, the incurring of which debt in no way benefited St. Gabriel's church.

The syllabi of the case referred to will sufficiently explain, what I have said in the brief synopsis I have given of the law. The first one is:

"First-It is competent to prove by parol evidence that land conveyed to a grantee by a deed absolute on its face is in fact held by him in trust for charitable uses, but such evidence should be clear, convincing and conclusive.

"Second-Where such grantee is in fact archbishop of the Roman Catholic church for this diocese, its canons and decrees, regulating the mode of acquiring and holding church property, are competent evidence to show that the property so held by him is held in trust for the purposes of public religious worship and other charitable uses.

"Third -Such a trust is one of which the courts will take cognizance and assume control of for the purpose of preventing its abuse, perversion or destruction.

"Fourth-Where such property is held by the archbishop in trust, to he devoted to the uses of public religious worship, cemeteries, orphan asylums and schools, each church, cemetery, asylum and school is held upon a separate trust and for its own separate use, and one piece of property so held is not chargeable with any part of the expense of improving any other, nor of improving church property generally in the diocese.

"Fifth—Property held upon such trusts by the archbishop does not pass to his assignee in insolvency by a deed of assignment made in his individual capacity for the payment of his individual debts.

“Such an assignment passes to the assignee no better or different title to the assigned property than the assignor held, and cestuis que trustent may assert as against the assignee and the creditors of the assignor the same rights as they could against the latter as if no assignment had been made."

In my opinion, the sole question remaining in this case, since the decision of the case of Mannix against Purcell is, whether Archbishop Purcell, by the form or intent of the conveyance of the property to him, held the property in question in trust for the benefit of St. Gabriel's church, or whether it was a conveyance to him personally and individually, to be held by him as he pleased and disposed of by him as he pleased. The lots in question, 7, 8, 10 and 11, with other lots lying in Glendale, formed a rectangle about one thousand feet long by three hundred feet wide. The tract is comprised in the subdivision made by Andrew Gross and Clement Dietrich, and was divided into eleven lots, five of which were about three hundred seet by one hundred seet, and one three hundred feet by two hundred, all fronting on Church avenue, and three were one hundred feet by two hundred and sixteen each fronting on Sharon avenue, which were at right angles to the others. The recorrer

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deeds were somewhat defaced by the fire, but as near as can be made out the first deed was made in 1857. This deed purports to convey to John B. Purcell in fee in consideration of ten dollars, lot 6, two hundred feet by three hundred feet, lying about the center of the tract. The deed is in the ordinary form. The next is dated August 31, 1865, and purports to convey to John B. Purcell, in consideration of one dollar, lots 1, 2, 3, 4, 5, 7, 8, 9, 10 and 11, or all the remaining lots in the tract. This deed is also in the ordinary form. The consideration expressed in the deeds raises the presumption, which is not rebutted by any evidence, that the conveyances were gifts to the archbishop, whether for his individual use or in trust. In other words, the property was not purchased by Archbishop Purcell as an ordinary individual would purchase property for a valuable consideration. Passing any question as to the nature or kind of trust upon which he held it, upon the face of the deeds it appears to have been a gift to him, which would tend, to a certain extent, to bring it under the canon and decrees of the Roman Catholic church with reference to trust property. The testimony as to the trust is necessarily very meagre, bearing in mind the fact that these conveyances were made in 1857 and 1863; that Dietrich was dead at the time this case was begun, and Gross was in advanced old age and apparently physically unable to give his testimony in any satisfactory manner. The want of their evidence leaves the case to be determined upon such testimony as could be gathered from various sources and pieced together. Mrs. Dietrich, by deposition, testifies that the property was given for the use of St. Gabriel's church. That may be said to be rather an opinion or conclusion of her's than a statement of fact, but I have not wholly excluded it, but have considered it just as it is here. She further testifies, which may be considered as a matter of fact within her knowledge, that the only condition attached to the conveyance of the property was that Father Carey, who was then pastor of the church, should pay the orphan asylum at Cumminsville twelve hunured and fifty dollars.

There was no testimony showing what the value of the property was at the time the conveyances were made. At the same time the court may, to a certain extent, use its general knowledge as to the value of the property at that time. Considering the location of it in the village of Glendale, and what does appear from the evidence, that it was in an entirely unimproved condition, it is tolerably evident that the property was not worth more than twice as much as the twelve hundred and fifty dollars which was to be given by Father Carey to the orphan asylum at Cumminsville; so to a certain extent, there was provided a consideration to be paid by the church for this property, for Father Carey at that time represented the church, and there is no evidence that any consider. ation was paid by Archbishop Purcell. Mrs. Dietrich further testified that Gross and Dietrich and their families were Roman Catholics; and that the property was improved and used, and the burying ground used belore they left Glendale. It also appears by the testimony of Julia Barron, who was formerly connected with the orpban asylum at Cum. minsville and kept the accounts, that the following entries appear: “December, 1863, Rev. Mr. Carey, Glendale, 100 dollars; July, 1865, Rev. F. Carey, on note, 450 dollars; November, 1865, legacy of Gross and Dietrich, 200 dollars; aggregating in all, $750. These entries corroborate Mrs. Dietrich's testimony.

There is attached to Father O'Donnell's deposition, a note of Father Carey, dated December 4, 1863, to the orphan asylum at Cumminsville

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254

O'Donnell et al. v. Holden et al.

for $1,250, described as being the sum agreed to be paid out of the donation of land in Glendale, made by St. Gabriel's church. Now, it is true that the recitals of that note are not binding and conclusive upon the court in this case, but a recitation in a document of that age to that effect, and when there was no interest in any one to state other than the facts as they then appeared, must be taken to have some weight. This tends to corroborate, in fact it shows almost conclusively, that there was an agreement by the church, or Father Carey representing the church, to give to the orphan asylum at Cumminsville, $1,250, in consideration of the conveyance of this property by Gross and Deitrich to Archbishop Purcell. The presumption would be, naturally, that the property while conveyed to Archbishop Purcell to hold the title, was actually conveyed for the use and benefit of the congregation at Glendale.

It also appears, from the testimony of Richard Cox by deposition, that he bought, somewhere in 1862 to 1865, the exact time is not given, two of the principle lots, 4 and 5, of this subdivision. I may remark, in passing, that it appears from the testimony that lots 1, 2 and 3 were occupied for cemetery purposes, and that lot 6 was at first used by the church for the erection of a building for church purposes. Richard Cox testifies that his negotiations were with, and that he purchased these lots of Father Carey, then pastor of the church, though the deeds were made by Archbishop Purcell; but he says he did not see Archbishop Purcell in reference to the purchase, and that he paid Father Carey the money. He says he paid in cash, notes, and work for the church in improving the property; and attached to his deposition, there are notes which appear to have been paid, receipts and other papers, going to show that his negotiations and transactions were actually held with Father Carey, and that Archbishop Purcell had nothing to do with the transaction, except to execute the deed; and that the consideration for these lots went into the hands of Father Carey, and was by him used in connection with the church property. Father O'Donnell testifies also, that he borrowed money for the use of the church from Edward Purcell, and repaid it to him. He also testifies by deposition, that the church borrowed money from the Glendale Mutual Savings Association, and for this, a mortgage was executed upon a portion of the church property by Archbishop Purcell; but it is very evident that the money was received by Father O'Donnell and used for church purposes, and was repaid to the Building Association, in the manner in which such payments are ordinarily made, by the church congregation, and that Archbishop Purcell had nothing to do with this, except execute the mortgage.

The remaining facts in the case, without going through them at any great length, may be sumined up as general evidences of occupation, and use by the congregation of the property. It appears from the evidence, that from the time this conveyance was first made, the congregation at Glendale took charge of the property, cleared it off, improved it, placed it under fence, keeping it in one enclosure, treating the property as really one lot. For that reason I speak of it as a rectangular lot of a certain size. It is clear that this property was never actually divided off into separate enclosures according to the terms of the original subdivision, but that from the time the conveyances were made, the church kept it as one lot, occupied it, and controlled it, entirely and exclusively. They have made all the improvements upon it, they have placed upon it a church, a school, a residence for the priest and a residence for the sisters employed in teaching the school, beautified the rounds by

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ting out shade trees, by laying out walks and drives, apparently without any relerence to the subdivisiou of the lots or lot lines.

The lots mortgaged in this case, as the testimony shows, do not have upon them any buildings, and it would seem that some one must have gone there prior to the execution of the mortgage and ascertained just what lots there were which had no buildings upon them, because the lots that are embraced in this mortgage are the only lots in the sub-division that have no actual buildings upon them, but yet they have upon them walks and drives in connection with the church property occupiel by buildings, and they have upon them the improvements and evidences of occupation to which I have already referred that have been made by the church during the tiine they have used and occupied them. If we are to assume, I think we may safely assuine, that if the controversy were between the assignee of John B. and Edward l'urcell, and this church, there would be no doubt that the property would have been decided by the court to be held by Archbishop Purcell in trust for the church, still it may be said in this case that Jolin T. Hooper was an innocent purchaser; that he parted with a valuable consideration for the mortgage, in that he agreed to extend the mortgage for a year, although the mortgage was given for au antecedent debt. If, however, John T. Hooper was fairly advised by the facts in the case, and all the surrounding circumstances, that Archbishop Purcell, although he held the title in fee to this lot, still hela it in trust for the church, then he is in no better position than the assignee would have been.

It is settled now by the decision of Mannix against Purcell, that the archbishop was the only person who could take the legal title of

property. None of these congregations, so far as I am aware, were inccrporated, and by the canons and decrees of the church the archbishop was the proper person to hold the title to property of the church, but he hield it for church uses and church purposes, and as our Supreme Court have held, he held the separate tracts for the uses of the separate churches so far as they actually occupied and used those tracts, or so much as may have been necessary for such church use.

Now, if we consider the question whether John T. Hooper was advised of this trust sufficiently, so that he could not be reasonably called an innocent purchaser, then all this evidence of use and occupation comes in. The fact that the deed was made to John B. Purcell for a nominal consideration; the fact that all these conveyances that had been made inured to the benefit of the church, could have been easily ascertained. The fact that the church was in the actual use and occupation of the property, in the manner in which they were, treating it all as one tract, could be seen and no doubt was seen, and the fact that they were not only occupying it and using it, but that they had improved it, and had brought it to the condition it now is from an entirely waste and improductive tract of land, uninclosed, unused in any way, all could have been ascertained.

It seems to me I have indicated enough to show that in my opinion the plaintiffs in this case should prevail, and that a decree should be granted in their favor.

Lincoln, Stephens & Lincoln, for plaintiff.
Healy & Brannan, for defendant,

258

Dixon v. Bird Varnish Co.

INJUNCTION.

258 [Hamilton Common Pleas.)

HARRY DIXON V. BIRD VARNIS. CO. A judgment of a justice of the peace of this state, the record of which shows ser

vice of summons on the defendant, will not be enjoined on the ground that there was in fact no service, where the judgment plaintiff was not guilty of any fraud, collusion or coercion, and the debt was in fact due so that another

trial would not result differently. SHRODER, J.

The action was for an injunction to restrain the enforcing of a judgment rendered by a justice of the peace, and for a decree setting the judgment aside. The plaintiff was not served with suimions, and did not know of the proceedings until too late to take the case to the common pleas, but the record set forth that at the trial the parties appeared, and the return of the constable was that the plaintiff was served with summons at his residence. Upon the evidence the court sound that the plaintiff was owing to the defendant the amount of the magistrate judgment. No misconduct, fraud, collusion or coercion were chargeable to the defendant or his attorneys.

Heid: It is settled in this state in respect to domestic judgments o! courts of general jurisdiction, when it appears by the record that the court has found affirmatively the fact on which its jurisdiction rested, that such jurisdiction can not be collaterally questioned. 13 Ohio St., +46-455 16 Ohio St., 182 ; 35 Ohio St.. 552; 39 Ohio St., 366 ; 43 Ohio St., 78, Where the jurisdiction appeared on the magistrate's record, his judg. ment is as impregnable against collateral attack as those of any other tribunal. 43 Ohio St., 78. If relief is sought in a court of equity, either to set aside the judgment or enjoin its enforcement, it will not be granted unless the case is founded upou some ground of relief, such as fraud, collusion, coercion or some misconduct securing defendant an unconscionable advantage, and where the plaintiff has a meritorious defense, so that the result, if the judgment were set aside, would be other or different from that already reached. +3 Ohio St., 85; 37 Ohio St., 502; Arrowsmith v. Harmoning, U. S. S. C., 102, 103.

Petition dismissed.
H. Muller, for plaintiff.
Burch & Johnson, for defendant.

RAILWAY-CONTRACTORS.

275

(Superior Court of Cincinnati, Special Term, 1889.) FARMERS' LOAN AND Trust Co. v. The CINCINNATI, WASHINGTON

& BALTIMORE RAILRUAD CO. ET AL.

1. Section 3398 of the Revised Statutes should be fairly construed so as to effect

the purpose for which it was enacted.

4 L B 31

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