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St. Francis Church v. Hargous.

this state, nor any Roman Catholic bishop to take the title to church property. The deed was recorded and a church edifice was built on the lot for St. John's Church, and the property was used as a place of worship and a burial-place by and for that church for many years. On October 1st, 1816, Sartori, as president of the church, gave a mortgage on the premises to Coxe, which is still uncanceled. On February 1st, 1825, Sartori, as such president, gave another mortgage on the property to Rebecca Bettini. In that instrument the premises were not only particularly described, but were designated as a church and lot. On January 16th, 1832, Sartori, styling himself "formerly president" of the church (St. John's) conveyed the property to Archbishop Kenrick, of Philadelphia, in "trust for the Roman Catholic congregation of St. John's Church, of West New Jersey." On May 8th, 1839, the property was conveyed by the sheriff to William Skeen, pursuant to a sale under an execution out of this court on a decree of foreclosure of the Bettini mortgage. Pursuant to a sale under an execution on a judgment at law against Skeen, the property was conveyed by the sheriff in June, 1843, to Joseph B. Kennedy, who in July following conveyed it to Alexander C. M. Pennington, who conveyed it in November, 1847, to William Halsted, who, in February, 1848, conveyed it to Peter A. Hargous, the defendant's father, and he, in 1859, conveyed it as before mentioned to Bishop Bayley, who, in October, 1864, conveyed it to the complainant by the deed already referred to.

The legal title to the property, it will be seen, was in Sartori, who, as he lawfully could do, mortgaged it as president of the church. The church was not then incorporated. Had it then been a corporation and the title been in it, it could have made a valid mortgage of the premises, and a sale under it would have passed to the purchaser a title free from the trust. Magie v. German Evangelical Church, 2 Beas. 77; affirmed on appeal, 2 McCart. 500. Peter A. Hargous, the defendant's father, had title to the property clear of the trust. Moreover, it may be remarked, the trust to which the property was subject in Sartori's hands was in favor of St. John's Church. The complainant is not that church

St. Francis Church v. Hargous.

but another, a corporation created in September, 1864, and has no title, legal or equitable, to the property, except what it derives under the deed from Hargous to Bishop Bayley. There is therefore no substance in the complainant's claim that Hargous had no right to provide for a reversion of the premises on breach of the condition contained in his deed to Bishop Bayley, nor is there any ground for it.

But further, the misrepresentation complained of was not in reference to the fact of the existence of the reversionary interest. The complainant does not allege that the defendant falsely represented that there was a claim to reversion when in fact none existed. The fact that there was such a claim was known to the complainant before any of its officers saw or communicated with the defendant on the subject. It appeared on the face of the deed under which the complainant derived its title. Before the making of the application to the defendant, which was made in November, 1882, from which the agreement in question resulted, the complainant contemplated diverting the land from the uses to which it was devoted to sell it for its own benefit. As early as 1875 it obtained permission from the bishop of the diocese to tear down the church building and dispose of the property. When the agreement was made the complainant was desirous of selling the property. The building and fences on it had fallen into dilapidation. Rev. Mr. Ellison, the priest of St. Francis Church, and ex officio one of the trustees, testifies that the complainant wanted to sell the property. He says the object was to abate a nuisance and to utilize what was given for charitable purposes. All the propositions made on behalf of the complainant preceding the agreement were made with a view to selling the property. Nor could it be justly held that in the making of the agreement the complainant was inops consilii. It had counsel. In February preceding its solicitor had filed a bill in this court against the defendant's mother, to quiet title in respect to this very claim of reversion, and that suit was pending. The bill was not dismissed until March 2d, 1883. In January preceding, Mr. Ellison read the will with reference to this very

St. Francis Church v. Hargous.

claim (for neither he nor the complainant had any other interest affected by it), in the surrogate's office in the city of New York. There can be no doubt from the evidence that the agreement was the result of an application made on the part of the complainant to the defendant with a view to an amicable arrangement by which both the Hargous family and the church might receive benefit from the sale of the property on joint account. Not to speak particularly of an application made about a year previously to the defendant on behalf of the church, one was made to him in the city of New York, in November, 1882, for a release as a gratuity to the church. This proposition was declined, and in the latter part of February in the next year there was an interview between the defendant and Mr. Ellison and another member of the board of trustees, at which three propositions were made on the part of the complainant. The first was that the complainant should pay the defendant $1,500 for a quit-claim from the family. This was declined. The second, that the dead bodies should be removed from the property at joint expense, and the property be then sold and the proceeds equally divided between the parties. This also was declined. The third was that the defendant should pay the complainant $1,500 for its interest in or claim to the property. This, too, the defendant declined to accept. He thereupon himself made three propositions. The first was that the complainant should pay him $3,500 for the interest of the reversioners. This was declined. The second, that the complainant should remove the dead bodies at its expense, and then sell the property and pay him half of the proceeds of the sale. This, too, was declined. The third was that the complainant should put into joint account an adjoining lot of twenty-five feet front by one hundred and sixty feet in depth, of which the complainant claimed to be the owner, and remove the bodies at joint expense, and then sell the property and divide the proceeds equally between the parties. This was accepted. It was understood that the defendant was to draw the agreement, and he did so. The bill, as before stated, alleges that as drawn it varied from the verbal contract, but it does not specify wherein it differed. By the evidence on the

St. Francis Church v. Hargous.

part of the complainant itself it appears that it was drawn in exact conformity with the verbal agreement, except that, as Mr. Ellison declares, the provision for a conveyance by the complainant to the defendant of half of the two lots was not part of the verbal contract. But the defendant swears that it was, and it is clear that any misunderstanding between them on that head must be attributed entirely to a misapprehension on the part of Mr. Ellison of the meaning of the language used by the defendant, for in his telegram of the 4th of April he says:

"We are ready to deliver you by Saturday warranty deed spoken of in agreement, but want you to deliver us quit-claim deed as spoken of in agreement."

He thus declares that the complainant is ready to deliver the deed in question. Moreover he himself drew a deed-the deed referred to in his telegram-from the complainant to the defendant, granting, bargaining and selling to him "and to his successors and assigns one undivided half part" of the two lots of land, describing them. This deed was, for an obvious reason, not satisfactory to the defendant. The conveyance was without words of inheritance, and was otherwise informal.

It would seem that Mr. Ellison understood what was meant by the provision for a deed in the agreement, for he drew that deed to comply with it. He swears, however, that the verbal agreement was that the complainant should give the appellant "a kind of warranty for the half of the proceeds of the sale of the land." He says, also, that he supposed that the effect of the deed he himself drew was merely to give the defendant security that he would receive half of the proceeds of sale. It is enough to say that if there was any misunderstanding on this subject, it arose entirely from Mr. Ellison's want of apprehension as to the plain meaning, not only of words which the defendant used in the agreement, but those which he himself employed in the deed which he drew in accordance with the agreement. It would appear that the provision for a warranty deed for land would be primarily understood by any one to signify precisely what the language imports-a conveyance of the land itself, and not merely a covenant to pay over the proceeds of the sale to the

St. Francis Church v. Hargous.

grantee. He does not, however, in fact, allege that the agreement differed from the verbal understanding, but that he understood, by the words used in both in reference to the deed to the defendant, that they meant something else than what they plainly imported. It may be added that the other trustee, Mr. Greenwald, who was present at the making of the verbal agreement, gave no testimony on the subject of the alleged variance. There is obviously no ground for a claim to relief on this head.

But it is urged that the defendant fraudulently pretended that he was the owner of the entire interest of the Hargous family, under the reversion, while, in fact, he had only his mother's life estate, and whatever interest he might have been entitled to under his father's will as one of the children. By the will, the testator gives to his wife, in fee, certain real property in the city of New York, and gives to her absolutely certain personal property also, and then gives to her all the residue of his estate for life, with power to appoint it by will, or instrument in the nature thereof, among his children, or to their descendants, in such shares as she shall think proper, and in default of such appointment gives it to his children, living at her death, in equal shares, the descendant or descendants of any deceased child to take the share which such deceased child would have taken if living; and he authorizes her to advance, with the consent of his executors, to any of his children of lawful age, such part of the share which such child would be entitled to under the will if living at the death of his wife, in default of any appointment by her, as she and his executors may think discreet. He then gives to his executors or such other person or persons as shall, by law, be appointed to administer upon his estate, full power and authority, by and with the consent of his wife, to sell and convey all or any part of his real estate, upon such terms and in such manner as they may deem advisable. He appointed his wife and his brother, Louis E. Hargous, executors. The will was proved in New York in 1866, by Louis E. Hargous, but has not been proved in this state. By deed dated March 9th, 1881, the widow conveyed her interest in the church property to the defendant. When he made the agreement he held no other title than that, except

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