text:
    David R. Kemper vs. The Trustees of Lane Seminary and others.
    J. K. and others, conveyed a tract of land to the Trustees of Lane Seminary and their successors forever. In the deed of conveyance the grantors covenanted that in no case should any of the property revert to them, but in case the Seminary should fail, or become extinct, it should go to certain religious and benevolent societies.
    Held that the donors cannot maintain a bill in Chancery for the purpose of inquiring into the manner in which the Trustees discharge their duties, and to control them in the appointment of Professors.
    This is a Bill in Chancery, reserved in Hamilton County.
    The Bill shows that about the month of September, 1828, Joshua L. Wilson, and sundry other persons (recited in the Bill,) associated together to establish a Seminary, of which the primary object should be the education of pious young men for the gospel ministry, and that they adopted a Constitution, the second article of which provides for requiring every student to spend not less than three, nor more than four hours in daily manual labor, &c.
    The Bill further shows that by the third article of said Constitution, it was provided as soon as donations sufficient, and a situation should be obtained, the Seminary should be located, a name selected, and an act of incorporation procured.
    That it was further provided that the officers of the Board should be a President, three Vice Presidents, a Recording Secretary, Corresponding Secretary, and Treasurer, to be elected annuaHy — an Executive Committee consisting of thirteen including the officers who should conduct the affairs of the Board under their directions : that in the 7th article it was provided that a majority of the members of the Board of Trustees and Executive Committee, and of the instructors employed in the Theological Department, should be members of the Presbyterian Church under the care of the General Assembly of the United States, in good standing.
    That after forming said Association, and electing officers, circulars, signed by Joshua L. Wilson, President, and Abraham A. Halsey, Secretary, dated 9th October, 1828, were addressed to sundry persons, from whom assistance was expected.
    That one of the leading objects of the association, set forth in said circular, and in the Constitution, was to require each student to devote a portion of his time daily, to manual labor, of which the avails were to be applied to defraying the expenses of the Institution, and thereby conducing to the health and vigor of the student; and in order to carry this object into effect it was necessary to procure a tract of land near Cincinnati.
    That complainant and his father, James Kemper, Sen., and his brothers, Elnathan, since deceased, and Peter H. Kemper, owning lands near Cincinnati, were applied to for donations of land.
    That 11th February, 1829, the Legislature, on application of said association, passed an act incorporating the Lane Seminary, by which it was enacted as follows :
    By the 1st Section — That there was thereby established in Hamilton county, a Theological Institution for the education of pious young men for the gospel ministry. Appointed certain persons therein named, Trustees of same, and created them and their associates and successors a body politic and corporate, &c., by the name of “ the Trustees of the Lane Seminary,” and by that name declared them capable of contracting and being contracted with, &c. &c., with full power to acquire and hold such real estate as should be necessary and convenient for said Institution, and the transaction of its business and endowment of same, and to make by-laws, and regulations, &c.
    By the 2d Section — It was enacted the Board of should have power to perpetuate their own body by filling vacancies ; should consist at no time of less than twenty-three, nor more than twenty-five; should have the direction &c., of the property and prudential concerns of said Institution, and the administration of its affairs; appoint Professors, Tutors, Agents, &c., to hold during pleasure, and perform such duties &c, as Board should direct; that said Board of Trustees should elect from their own body a President, three Vice Presidents, Treasurer, Recording and Corresponding Secretary, who with six other members, elected at the same time and place, should be the Executive Committee of the Institution, to conduct the affairs of the same under the Trustees’ direction, and together with said Board of Trustees, do such things, &c., as may be necessary for the Institution, provided that they are not to employ the funds of the same otherwise than as contemplated in the act.
    The 3d Section ■ — Provided the officers and members of the Executive Committee should reside in Cincinnati or vicinity, and that a majority of them and all the Professors, Trustees, Tutors, Teachers, and Instructors in said Institution should be members of the Presbyterian Church in good standing, undér the care of the General Assembly of the Church in,the United States.
    The 5th Section — Provided that a fundamental rule of said Institution should be that every student therein, when in good health, should be required to spend not less than three nor more than four hours each day, in agricultural or mechanical labor, the avails whereof to be applied towards paying expenses of the Institution, and board and tuition of .students, and said section also empowered the Trustees to confer the usual Degrees in Divinity.
    The Bill makes a reference to the act. ■

      The Bill further shows that afterwards Elnathan Kemper, Jas. Kemper Sr., Peter H. Kemper, and complainant, together with their wives respectively, being desirous of aiding in the establishment of said Theological Institution, on the principles of said articles of association and said charter, on the 9th of December, 1829, executed a deed to the trustees of the Lane Seminary, wherein it was recited that, whereas a Theological Institution had been recently established in the vicinity of Cincinnati, for the education of pious young men, &c., &.C., and whereas, certain persons had been made a body politic by an act, &c., by name of trustees of Lane Seminary, and said grantors feeling a deep interest in the success of said Institution, and being desirous of increasing knowledge, &c., and believing manual labor tends to advantage body and mind; therefore said grantors in consideration of the premises, and of four cents paid, conveyed to said trustees, and their successors forever, a certain tract of land therein described.
    That it was provided in said deed that the same was made upon the express condition that said trustees and successors establish and maintain forever on said tract, the above Seminary, a fundamental principle of which should be that the students thereof should be required to spend in agricultural or mechanical labor, such portion of each day as the trustees shall direct. Also that the Professors and Teachers should be members of the Presbyterian Church, under the care of the General Assembly Of the Presbyterian Church in the United States; that in no case, should said property revert to the grantors or their heirs or assigns; but in case said Seminary should fail or become extinct, then said property to belong equally to the American Bible Society, American Tract Society, American Colonization Society, and American Education Society, and in case any of said societies should become extinct, or all of them, said property, or a due proportion of it, should be appropriated to such charitable religious Institutio ns as the General Assembly of the Presbyterian Church in the United States should direct.

      The Bill further shows that after making said deed, a Seminary was established, and buildings erected by said association incorporated by said act, and the trustees took upon the duties imposed by the charter; that they established Professorships and Instructions, viz: a Professor of Theology, a Professor of Biblical Literature, a Lecturer on Church History, a Professor of Sacred Rhetoric and Pastoral Theology, and Lecturer on Church Polity : that Lyman Beecher was appointed Professor of Theology, Calvin E. Stowe, Professor of Biblical Literature, and Lecturer on Church History; and Diarca Howe Allen, Professor of Sacred Rhetoric and Pastoral Theology, and Lecturer on Church Polity, who are now acting as such Professors with the sanction of the board of trustees, and said Calvin E. Stowe is also acting as Librarian, and Diarca Howe Allen, as Superintendent.
    The Bill further sets forth the names of the present board of trustees, viz: Nathaniel Wright, Pres’t, and others, which it charges, are twenty only in number, instead of twenty-three, the number required by the charter, said trustees having neglected and refused to elect the additional number.
    The Bill further shows that complainant did well hope that, in pursuance of the original articles of association, and of said charter and deed, said trustees would have employed such persons as Professors as were, during the whole time of their employment, members of the Presbyterian Church, &c., as known at the time of establishing said Seminary, and intended in said charter and deed; and that said trustees would have conformed to the requirements of the charter by requiring manual labor, &c. Yet the said, trustees have altogether neglected to discharge their trust according to the charter, and as in equity. they ought to have done, but on the contrary are now, and have been for years, employing as Professors, said Beecher, Stowe and Allen, neither of whom are, or have been for several years, members of the Presbyterian Church, &c.; if they ever were members, it has been of some society which has withdrawn from the General Assembly of the Presbyterian Church, and thereby ceased to be members of said Church in good standing.
    q-^g gjiy charges further that said trustees have refused to ... in the executive committee, a majority of members of said Presbyterian Church under the care of the General Assembly of the United States, but on the contrary said committee is composed of Nathaniel Wright and six others, who are not members of said Presbyterian Church iii good standing, and that therefore said trustees have permitted improper persons to act as Professors and in the executive committee. '
    That said trustees have refused to establish regulations requiring manual labor, or if they have established such regulations, complainant is • informed, and believes they .are not enforced; and that so far from requiring such labor, they have leased or sold several parcels of said land for building-, and other purposes unconnected with agricultural uses; and threaten to lease or sell out the greater part of the land for purposes foreign to agricultural or mechanical pursuits, thereby parting with the control of the same, and putting it out of the power of said Seminary to effect the objects of its founders and benefactors, in disregard of their duties, and endangering the existence of said corporation.
    That said trustees, by disregarding their duties, are bringing said Institution into disrepute, wasting its funds, and making it a place, in the opinion of complainant and others belonging to said Presbyterian Church, &c.; unfit for the education of youths anxious to become ministers of said Church. All whereof, the bill charges, is contrary to equity.
    Wherefore, &c., the bill prays said trustees, so incorporated as aforesaid, and said Nathaniel Wright (and others, being individuals now composing soid board, whose names the bill recites,) individually as such trustees, may be made defendants thereto ; that said defendants, and each of them, answer and set forth, under oath, the individual names of such trustees now in office, and when elected and qualified as such, that they state the names of the executive committee, and when appointed or elected, and the residence of each of them, and whether either of them are, or at the time of their election were, members of the Presbyterian Church, &c., and in what Presbytery and Synod the Church with which they commune is located, and to whether the said Synod has not been exscinded by the General Assembly, and if so, at what time.
    That they state the names of all and every Professor, and Teacher, appointed or employed by them in said Seminary, and when so employed, and how often appointed and re-appointed, and for what time, and when such appointments were made, and whether they have required, or do now require, the students to spend any, and what number of hours in daily agricultural or mechanical labor, and in what particular branches, and whether they have not sold or leased, or made other, and what, disposition of said sixty acres, or any other land belonging to said Institution, or any portion thereof, and what are the names of persons to whom they have sold or leased, and the considerations paid, or agreed to be paid, therefor.
    And on a final hearing, complainant prays said trustees, and said defendants, as individual trustees, may be decreed to perform the trusts confided to them, and remove said Professors, and appoint others, possessing the requisite qualifications, and for general relief.
    The following is a copy of the deed referred to in the Bill:
    “ This Indenture, made this ninth day of December, in the year of our Lord one thousand eight hundred and twenty-nine, between Elnathan Kemper, and Eleanor his wife, James Kemp-er, sen’r., and Judith H. his wife, Peter H. Kemper, and Rhoda his wife, and David R. Kemper, and Sally Hall Kemper, of the county of Hamilton, and State of Ohio, of the first part, and the trustees of Lane Seminary, of the second part. That Whereas, a Theological institution has been recently established in the vicinity of Cincinnati, in said county of Hamilton, for the education of pious young men for the Gospel Ministry, and for the purpose of affording to the youth of the country, and particularly of the Western States, the means of acquiring useful knowledge; and whereas, certain persons have been made a body politic, by an act of the General Assembly of the state of Ohio, by ’ the name of the said trustees of the Lane Seminary. And the said Elnathan Kemper, and Eleanor his wife, James- Kemper, senT., and Judith H. his wife, Peter H. Kemper, and Rhoda his wife, and David R. Kemper, and Sally Hall Kemper his wife, feeling a deep interest in the success of the said Institution, and being desirous of promoting its benevolent objects in the increase, and diffusion of knowledge and religion, as tending to advance the most valuable interests of their fellow men, and believing that the exercise of manual labor by youth, tends great- . ly to promote vigor of body and strength of mind. Be it therefore known, that said Elnathan Kemper, and Eleanor his wife, James Kemper, sen’r., and Judith H. his wife, Peter H. Kemper, and Rhoda his wife, and David R. Kemper, and Sally Hall Kemper his wife, for and in consideration of the premises, and also in consideration of four cents to them in hand paid, the receipt of which is hereby confessed, have granted, given and conveyed, and by these presents do grant, give and convey unto the said trustees of the Lane Seminary, and their successors forever, a certain tract of land, situated near the city of Cincinnati, in said county of Hamilton, and being a part of the tract on which the said Elnathan now lives, being the South East quarter of section eight, township three, and fractional range two, beginning at a stone, which is the North East corner of said quarter section, by mutual agreement, between said Elnathan and Jesse Hunt, from thence with the section line South seven minutes West, twenty-four chains and eighteen links, to a stone in the section line, thence South eighty-nine degrees and thirty-five minutes West, twenty-five chains and ninety-one links to a stone in the centre of the State road, thence with the centre of said road, North five degrees East, to a stone' in the line between said Elnathan and Jesse Hunt, thence with said line North eighty-nine degrees and thirty-five minutes East, twenty-three chains and seventy-four links to the place of beginning, containing sixty acres. To have and to hold the said tract of land of sixty acres, with all its privileges and appurtenances thereto belonging, unto them the said trustees of the Lane Seminary, and their successors forever. Provided, J . . ’ this conveyance is on these express conditions, that the the trustees of the Lane Seminary, and their successors, establish and maintain forever, on the above described sixty acres, the above Seminary, a fundamental principle of which shall be that the students thereof shall be required to spend in Agricultural or Mechanical labor, such a portion of each day as the trustees shall direct. Also, that the Professors and Teachers in said Seminary shall be members of the Presbyterian Church, under the General Assembly of the Presbyterian Church in the United States of America. The said Elnathan Kemper, and Eleanor his wife, James Kemper, sen’r., and Judith H. his wife, Peter H. Kemper, and Rhoda his wife, and David R. Kemp-er, and Sally Hall his wife, further covenant and agree, that in no case shall any part of the aforesaid property, appurtenances, or avails thereof, ever revert to them, their heirs or assigns, but that in case the said Lane Seminary shall ever fail, or become extinct, then the aforesaid property, with its appurtenances, and avails, shall belong to the American Bible Society, The American Tract Society, The’ American Colonization Society, and the American Education Society. And' in case the said Societies, or any of them, shall become extinct, then the aforesaid property, or a due proportion of it, shall be appropriated to such charitable religious institution as the General Assembly of the Presbyterian Church in the United States of America shall in their wisdom direct. In testimony whereof, the said Elnathan Kemper, and Eleanor his wife, James Kemper, sr., and Judith H. his wife, Peter H. Kemper, and Rhoda his wife, and David R. Kemper, and Sally Hall his wife, have hereunto set their hands and seals, the day and year above written.”
    To .this bill there was a general demurrer, and joinder. The demurrer was sustained in the Superior Court, from which the complainant appealed to the Supreme Court.

      Charles Fox, for Complainant.
    The Court will perceive that by the terms of the original donations to the Lane Seminary, and by the terms of the charter of incorporation, the Institution was intended to advance the Presbyterian religion.
    Te secure this object a board of thirteen in the original articles and in the charter from 23 to 25 directors is elected or appointed who have power to perpetuate their own body by filling up vacancies, and could therefore when once in, put at defiance the wishes of the donors unless there was some limitatation of their power contained in the same articles and charter.
    The general power of these Trustees, however, is limited. They have the power to elect from their own body an Executive Committee, consisting of a President, 2 Vice Presidents, Treasurer, and Recording and Corresponding Secretary, who, with six other members elected at the same time, should be the Executive Committee, to conduct the affairs of the same under the direction of the Board, &c.
    But these officers must reside in Cincinnati or its vicinity, and a majority of all the committee, and all the Professors, &c., should be members of the Presbyterian Church in good standing, under the care of the General Assembly of the Presbyterian Church.
    These then are the limitations to the general powers of the Trustees.
    The Trustees in office are therefore under the control of the Chancellor, in this' as in all other cases where a trust is created.
    We claim that it is the duty of the Trustees to carryout the object of the original donors as expressed in the charter and in the deed, donating the property to the Lane Seminary.
    The object can only be carried out by employing teachers who believe in the doctrines, discipline and practice of the Society known by the name of Presbyterian.
    And to insure this teaching, the Trustees are bound to elect in the Executive Committee, a majority of persons who are members of the Presbyterian Church as then existing.
    . In the present case it is admitted they have employed, and do now employ, Professors and Teachers who do not belong to that Church. It is also admitted that a majority of the Executive Committee are not members of the Presbyterian Church, as the same existed at the date of the charter.
    And with these facts, admitted as they are by the demurrer, I cannot conceive upon what principle it is the defendants attempt to defend this suit.
    The great object of the suit is to compel the Trustees of the Lane Seminary to perform the trust reposed in them by this complainant and other donors.
    It is one of those ordinary applications to the Chancellor to compel a Trustee to execute a trust which he has accepted, and we suppose the right of the complainant to the relief is so clear that there can be no question raised on the subject. We are not asking this Court as a court of law to decide religious controversies between parties, or to assume ecclesiastical jurisdiction over churches or their members. All we ask is, that this Court, as a Court of Chancery, shall exercise its ordinary powers in compelling a Trustee to use property and the proceeds of such property, according to the designation of its original owners, and according to the express terms and conditions of the deed of trust. We ask the Court to compel these Trustees to act fairly and honestly — to compel them to use the funds realized out of the trust property for the objects originally intended, and according to the terms of the trust deed. We claim this as a right on ■ our part, and that it is as much the duty of the Court to enforce this right, as it is our right to claim it. Although we do not claim the Court has any right to inquire into ecclesiastical matters as such, whether one religious creed is better than another, yet we do claim that wherever property is conveyed upon a well defined express trust, it is the duty of this Court to carry such trust into execution, and to administer it according to the intent of the founders.
    In every case of charity, whether the object be religious or purely civil, it is the duty of the Court to give effect to the in-ten^on °f founder, provided that can be done without in-on any known rule of law. 7 Simon Rep. 290. If the terms of the deed of foundation be clear and precise in the application, the course of the Court is free from difficulty. Attorney General v. Pearson, 3 Merivale, 409; 7 Simon, 290. Miller v. Gable, 2 Denio, 517 ; 1 Sanford’s Chan. 505.
    . “ Where the trust is declared in writing, and its nature and extent clearly defined, the Court has no alternative but to carry it into execution. In gifts for charitable purposes, the donor may prescribe his own terms, and if he declares the object of his gift to be to propagate a particular creed or class of devotions, or to secure a real or imaginary stability, by having those doctrines taught by a clergyman, and by a Church in connection with, or in subordination to a particular ecclesiastical judicatory, his will as in the case of a devise stands for a reason, and must be respected.” Miller v. Gable, 2 Denio, 540.
    “ When property is in terms conveyed upon trust to support a particular form of worship or to provide for the teaching of the doctrines of a particular denomination of Christians, the Court of Chancery will enforce such trust and prevent a perversion of the property to other' purposes.” Ibid, per Ballow, J. 549; Porter, 553, 556.

      In the Associate Reformed Church v. Trustees Theological Seminary, 3 Green’s Chan. Rep. 98, the Court held “ that neither Dr. Mason, nor any other into whose hands it (the books and money) might come, had a right to apply it to any other purpose than that for which it was originally intended, and it is the duty of the Court, upon a proper application, to see that this trust is not abused.”
    It makes no difference as to the powers of the Chancellor, whether the Trustees are private persons or whether the trust is vested in a corporation. And though they are a collegiate body whose founder has given a visitor to superintend his own foundation or bounty, yet as between one claiming under a separate benefactor and these Trustees for special purposes, the Court will look upon them as Trustees only, and oblige them to execute it under the direction of the Court. 1 Vesey Rep. 462; 2 Vesey, Jr., 46,49; 2 Howard, 189.
    In Bowden v. McLeod et ais., 1 Ed. Chan. Rep. 392, the Court say it will not interfere to restrain the free exercise of religion in any man, “ and yet there are cases in which this Court has power to inquire into tenets openly and publicly expressed in reference to the place in which they are promulgated. Equity can do this whenever called upon in connection with it to administer a trust. As for instance, where a religious society is formed, aplace of worship provided either by the will of the founder, the deed of trust through which the title is held, or by the charter of incorporation; a particular doctrine is to be preached in the place, and the latter is to be devoted to such particular doctrine and service. In such a case it is not in the power of the Trustees of the congregation to depart from w.hat is thus disclosed to be the object of the foundation or original formation of the institution, and teach new doctrines and set up a new mode of worship.”
    In the Girard will case, 2 Howard, 199, it was held the donor of property has a right to donate his property upon such terms as he pleases; if he thinks proper he has a right to exclude Ecclesiastics or Laymen from being employed as instructors in the institution he has established.
    In Brown v. Hammel, 6 Barr’s Rep. 87, the Court held the Legislature had no power to change the trusts, or to create new ones. That the trusts and charities of the testator must be carried out according to his directions. They were his charities and he had the right to dispose of his own property upon such terms as he deemed proper, and not even the Legislature could alter the trusts, and an act which attempted to alter the trust was declared unconstitutional.
    The same doctrine as to the duty of the Court to enforce the trusts according to the declared intent of the donor was enforced in App. v. the Lutheran Congregation, 6 Barr’s Rep. 201.

      So it is held the king can make no statutes regulating a prij foundation without the donor’s consent. 1 Vesey, Jr.,
    When property is donated for a particular purpose expressed in the deed, equity will compel the execution of the trust. Key-set v. Stansifer, 6 Ohio Rep. 363.
    By the terms of the original donation and trust deed it is required “ that the professors and teachers in said Seminary shall be members of the Presbyterian Church, under the care of the General Assembly of the Presbyterian Church, in the United States of America,” and although in the present case on the demurrer no question really arises as to there being more than one Presbyterian Church, because there is no pretension in the pleadings that more than one Presbyterian Church exists, yet we may as well now call the attention of the Court to the true interpretation of this clause of the trust deed.
    We maintain the deed speaks as of the time of its execution. The object the donor had in view is what we wish to ascertain; of course we must view it as he viewed it at the time he made the deed. To do this we must go back to the 9th December, 1829, and we find as a matter of history that at that time there was one Presbyterian Church in the United States; that church, or the several churches, or the branches of that church, which ever you please, was or were under the care of the General Assembly — that same church and General Assembly now exist under the same name and organization, under the same church government, and professing the same doctrines. Since that period some of the members of the church have seceded — some of the churches have been exscinded, and these have formed new societies, adopted a new form of church government, repudiating the powers of the General Assembly as claimed at the date of the deed. . At that time the General Assembly was an appellate court; from the decisions of the inferior .church judicatories, an appeal lay to that Assembly, whose decision was final. Under the New Church government, no such appeal lies. The Presbyterian Churches under the New system differ but little in church government from that of the Congregationalist Churches, or from the Baptist Churches — so the two churches differ considerably in matters of faith and doctrine ; fact, we suppose it was this latter difference that caused the separation ; and that it is considered by the parties a fundamental difference is evident, or we should not see such respectable bodies of men refusing to meet and worship together. There is therefore a great difference both in church government and doctrine between the now so called New Church and the Presbyterian Church as known and established at the date of this deed.
    It is perfectly immaterial to this argument as to which of the churches or which of the doctrines is most consonant to our own views of such matters, we want to ascertain the intention of these donors at the date of the deed. Had the donors reference to a church, or society, or General Assembly then well known ? or did they refer to one not in existence ? That is the question. Now we suppose there can be but one opinion on this subject. The donors must have had in view the General Assembly and the Presbyterian Church as then known, as it was then constituted; with its faith and its doctrines and form of church government as then understood-; the faith in which these donors had been educated and in which they hoped for salvation. This is the only common sense view of the matter, and such is the universal sentiment of the Courts on this subject, as will be seen by an examination of the following cases : Gabel v. Miller, 10 Paige, 641; Attorney General v. Pearson, 10 Eng. cha. 61-63; Lady Hewley’s case, 7 Simons, 290; Field v. Field, 9 Wendell, 394; Chambers v. Baptist Education Society, 1 B. Munroe, 221; St. Mary’s Church case, 7 Seargt. & Rawle, 517.
    In the last case of App., v. the Lutheran Congregation, 6 Barr, 201, the Court say, we approve the doctrine laid down in the Attorney General v. Pearson, 3 Merivale, 400, “ that it is the duty of the Court to decide in favor of those, whether a minority or majority of the congregation, who are adhering to the doctrine professed by the congregation and the form of ’ worship in practice, as also in favor of the government of the church in operation, with which it was connected at the time the trust was declared.”
    “ If the object of the original contributors of this fund was the instruction and education of their children in the faith and doctrines of the Society of Friends, as understood and believed at the time it was placed under the direction of one of their associations or meetings, it is quite clear, botli on principle and authority, that such object should be strictly observed by those who have the management of it. The question in such case is not which faith or doctrine is the soundest or. most orthodox, but for what object or purpose was the fund originally established by the founders of it. Field v. Field, 9 Wendell 401.
    “ What were the religious tenets in general of the donor ? because it would not be a just application of those trust funds, if they were employed for the sustentation of religious opinions which the donors themselves have disavowed.” 1 Sanford’s Cha. Rep. 509.
    The intention of the donor as made known in the grant, remains the Law of the donation for all time to come. The trust cannot by the Trustees, nor by a change in the views of those who are selected to administer the trust, be changed.
    The will of the Legislature even cannot alter the charter; the will of the State cannot be substituted for the will of the donors. Dartmouth College case, 4 Wheaton, 518.
    In Brown v. Hammel, 6 Barr’s Rep. 87; George Fry had by his will devised certain real estate to trustees to establish a perpetual charity for the education of orphans, giving detailed instructions as to the management of the fund.
    The trustees were incorporated 1839.
    In 1846 the Legislature undertook to pass a law authorizing a sale of part of the property contrary to the condition of the trusts, and also providing that one particular Protestant church should have the power of nomination, whereas the will only provided that the trustees should be members of some one of the Protestant churches.

      The Court held that the Legislature had no authority to alter the will or change the terms and conditions of the trust. the trusts and charities of the testator, must be carried out according to his directions. They were his charities, and he had the right to dispose of his own property upon such terms as he deemed proper, and not even the Legislature could alter the trusts. The Court therefore declared the law of 1846 unconstitutional. 3 Watts, 408.
    The terms of the foundation or trust cannot even be altered by the founder unless he has reserved a right to do so in the deed. 1 Watts & Seargent, 36. 1 Bur. Rep. 201. Angel on Corpo. 272.
    Nor can subsequent contributors add to or take away from the terms imposed by the founder. Same authorities. 1 B. Munroe, 217.
    It has been said in argument by counsel, and probably will be again, (although in the present state of the pleadings it cannot be urged fairly) that a great many of the original contributors, and perhaps more of the later contributors to this institution were members of the New School, and that they wish the present Professors retained. Although we do not admit this to be the fact, and the pleadings do not present that question, yet we maintain if such is the fact it does not affect the present question. The donors or founders may establish the institution on such a basis and insert such trusts (or statutes as the conditions are somtimes called,) as they deem proper, and all subsequent contributors are bound by the terms of the original foundation, unless they grant upon some new trusts, which they may undoubtedly do. But mere general contributions for the general objects 'of the charity are governed by the original trusts. Nor can it make any difference in the effect of these subsequent contributions whether they were made by members of the Old or New School party — whether by Turk, Mahommedan, Jew, Christian or Infidel. The contribution or donation, whether of real or personal property, must be appropriated to advance the general object of the institution, unless they are made upon some new trust or condition attached to the new donations.

      Nor does it affect the question whether a large or small numfrjen(js 0f this institution desire Professors of the New school of Theology. Majorities or minorities are not known in courts of justice, nor cari the desire of the one or the other affect the administration of the trust, or alter or vary in any way the rights of parties under the trust.
    “The argument that a majority for the time being can mould to their own notions, the principles sustained by the gifts of the founders of the charity and can substitute other principles or cardinal doctrines in their stead, cannot be tolerated for a moment. It strikes at the root of all religious, charitable and even literary gifts and bequests, which are to endure beyond the lives of those first entrusted with their administrations. It closes the avenues to benevolence, and chills the warm heart of charity ; of that good will towards men which seeks to perpetuate by the means bountifully conferred on the donor, the good works which the approach of his appointed time on earth, prevents him from accomplishing or perfecting in person. Let it be once understood to be the law of the land, that funds bestowed for the maintenance of a Protestant church, may with the change of faith of the members, at any time be applied to the support of the Roman Catholic forms of worship and religious doctrines; or that a devise for the support of disabled seamen may in the wisdom of its trustees for the time being be used to educate young mariners for the better discharge of their duties ; and we shall have no more of the munificent eleemosynary donations which so much distinguish and adorn our country.” 1 Sanford’s Cha. Rep. 508, 509.
    It is not a question as to what doctrines these officers teach ; the trust requires they should be of a certain faith, and if they belong to the church required by the donor the trust has not been violated, but it is a very natural conclusion to draw that the donors in this deed supposed that officers professing to belong to the Presbyterian Church would be favorable to the tenets and form of government of that church. It cannot be presumed that any Christian minister will teach doctrines or a faith in which he has no belief— so that by employing Professors who do not belong to the Presbyterian Church as known at the date of the grant, the defendants are guilty of a violation of trust. 10 Paige, 645.
    The Bill shows that these trustees are appropriating the funds of this Institution to pay the salaries of officers who are not authorized by the terms of the charter or the deed of trust to be employed. They are thus continually defeating the object of the trust, setting at naught the desires of the donors, disregarding the very charter under which they are acting.
    This they do under the pretence that the New School is the real Presbyterian Church referred to in the trust deed. But they know it is not so — they know the Old Presbyterian Church, the Old General Assembly now exists. It has been so decided in the great case of Commonwealth on the relation of Todd v. Green and others.

    The New School Church is not only different in doctrine and church government, but the name even is changed, for the New School is called the Constitutional Presbyterian Church. So ■ that the New Church has neither the same faith, the same government, nor the same name as the Old Church which was in existence when this trust deed was made.
    The Professors therefore in this Institution are in the same situation as all other persons who separate either voluntarily or otherwise from the Old society. They cease to be members of that church of which they were once members, and of course cease to be qualified to act as teachers in this Seminary. For, “ it is a well settled principle that when part of any religious association separate and establish a new society, they cease to be members of the original society.” Associate Reformed Church v. Theological Seminary,3 Green’s Cha. N. J. Rep. 98.
    In addition to the cases already cited, I inclose in one of the - briefs a report in the case of the People ex relation of Griffin v. Steele et als., trustees of the Methodist Church, decided in February last, published in the New York Evening Post, which I wish the Court to read, as it is an able case on the general merits. We could not sustain a mandamus of course ; because we jmve no 0f]dcers to put in, and because we cannot in a Court 1 law select which of the trustees shall remain, the charter requiring only a majority to be members, &c.
    The obligation imposed upon a trustee after accepting the trust is as binding on a corporation as on an individual. 1 B. Munroe, 220.
    “It has often been declared in this Court that a college is under no obligation to accept an accession to its foundation, or any other trust, that if it does accept it without any arrangement made for a modification at the time of acceptance, it is bound to adhere strictly to the trusts.” 15 Eng. Cha. 164; Keene, 163.
    The Court will view all gifts to a corporation and determine all questions in like manner as if entrusted to the hands of individuals. 1 Vesey, 467. 2 do 46-49.
    It is the duty of the trustee, whether an individual or a corporation, not to convert the charity fund to other uses than according to the intent of the founder or donor. 3 Merrivale, 4Ó9; 7 Simons Cha; Rep. 290.
    Corporations may be divested of the trust where an abuse is shown, in the same manner as any other trustee. 17 Yesey jr. 499.

      “ If the corporation accept the donation there is an acknowledgment and acquiescence in the terms prescribed, and an implied obligation to carry out the terms in good faith.” 1 B. Munroe, 217.
    But it is claimed that this trust cannot be enforced by David R. Kemper, although he is one of the original donors and creators of the trust, because it is alleged he has no remaining interest in the property. It is claimed there is neither privity of contract nor privity of estate between the living grantor and the trustees. No authority is adduced to sustain this proposition, and we believe none can be produced.
    Such a proposition sounds rather harshly, both in a Court of law and in a Court of equity. We maintain that between the grantor or donor and the grantee in the deed, there is a direct privity of contract and estate also; and whenever the grantee accepts the deed, and in that deed a trust is created, the very acceptance on the part of the trustee creates a direct between himself and the grantor, which the law will compel him to perform. 1 B. Munroe, 217.
    The grantor and grantee are both parties to the contract and ■ so long as they are both living they can enforce the contract. This must necessarily be so, or the law would not imply an obligation on the part of the trustee who accepts the trust. But there being a contract, each party may enforce its execution. Authorities are not expected to be numerous on such a question, because almost all questions on the subject of charities arise out of charities created by will, and therefore a question can hardly arise during the life of the donor.
    But we have some casés deciding this question in favor of the right of the donor, Kemper, to sustain this suit directly, and the analogies we think are in his favor.
    In Chambers v. Baptist Education Society, 1 B. Munroe’s Reports, 222, it is expressly decided that the grantor and donor while living may file such a bill and enforce the trusts. That being one of the contracting parties, he has a right to the aid of the Court to enforce the contract. While the Court admits a bill might be sustained in the name of the Attorney General, they say, “ We are satisfied that a bill may be filed by the founder, if living, or his heirs, if he be dead, or by any beneficiary, having an interest in the use, or by any other having a vested interest in the fund, against the corporation, for a true and faithful execution of the trusts confided to it. Pauling is the founder, and is a party to the contract of donation, and stipulated its terms, and has unquestionably the right to have those terms enforced, and- if living might file a bill for that purpose.”
    In 7 B. Munroe, 618, the Court thought the bill might be sustained in the name of the Attorney General also, although the statute did not make it his duty to prosecute such suits. At least they would not dismiss a bill brought in his name.

      If we refer to the legal analogies we shall arrive at the same conclusion.
    By the common law, he who gives the first possessions to a corporation is the founder of it, and entitled to the rights which the foundership gives. These consist in visitation and correction of any misapplication of his bounty to any purposes foreign to its original destination. 1 Watt’s & Sergeant, 36.
    “ But what is the nature and extent of this visitorial power ? Is it a power to revoke the gift? to change its uses? to divest the rights of the parties entitled to the bounty ? Certainly not. It is a mere power to control and arrest abuses, and to enforce a due observance of the statutes of the charity.” Allen v. McKeen, I Sumner, 300.
    This right of visitor is of value, and- even after the transfer of it, the original donor has a right to have the statutes of his foundation, as to the power of the trustees, strictly adhered to, except so far ás he has consented to any alteration of them, and the funds cannot be diverted. 1 Sumner, 305.
    Here we have the right of the founder distinctly admitted. He has a right to have the statutes, that is the rules and trusts he has established, strictly enforced. If he can do this without coming into Chancery, well and good, but if his rights as founder require the aid of a Court of Chancery to enforce them, he of course comes into that Court. He has the right to have these trusts enforced even after he has transferred his rights as visitor. And this consideration alone, it appears to me, disposes of the whole objection npw raised.
    For if he has this right to have his trusts enforced after he has transferred his right of visitation, it is not because of his visitatorial right, for that is transferred and gone. On what then is it based except upon the fact that he was one of the original donors, and therefore has such right by privity of contract ? I have no doubt the practice of sueing in the name of the Attorney General has its origin in, and ought to be confined to, a case of necessity. If the donor is dead and his heirs are all dead, so that there is no visitor, no person who can institute a suit, then for the purpose of sustaining the charity, the King who acts by his Attorney General and in his name as a sort donor general or father of all charities, and as a matter of necessity, on being made acquainted with the facts by any one willing to become a relator, institutes the suit.
    We admit that on the death of the donor and where no heirs can be found, or where they are insane, the visitatorial power in England will be exercised by the chancellor, but never while the donor is living. 2 Vesey jr. 609, 619; 17 do 498; 13 do 519; 11 do 191.
    And there would be just as much propriety in deciding that the donor had no right as visitor, as to say he had not right as donor merely in his own lifetime to come into a Court of Chancery and have the trust enforced.
    We claim further that while the founder is living, the suit ought not and cannot be brought in the name of the Attorney General without a statute authorizing it to be brought in that manner. We claim the right of the State to interfere in the name of the Attorney General, never attaches while the donor is in existence, any more in this than any other case of a breach of trust. There is no necessity for such action while the donor is living, for he is competent to come into Court and have his own contracts enforced.
    There is not a case to be found in the English books, showing that a suit has been brought in the name of the Attorney General during the life of the donor. The fact is he only acts because there is no donor or heir of a donorliving to act. 7 Vesey, jr. 75; Birmingham school P. Wms. 325.
    He acts as the King’s officer because there is no donor, as the King is said to be a trustee where no trusteee is appointed. In other words, the Chancellor appoints a trustee where the donor has not appointed one. 7 Vesey, jr. 86.
    It is now well settled, (although it was formerly considered otherwise,) that the Chancellor does not derive his powers in charity cases from the statute of 43 Eliz. For such trusts were enforced by the Chancellor prior to the passage of that act. 1 Sandford’s Cha. 562; 2 Howard’s U. S. Rép. 196.

      And the practice of sueing in such cases in the name of the Attorney General did not commence until after the passage of the 43rd Eliz. 1 B. Munroe, 618.
    It is a remarkable fact that out of fifty cases mentioned in the note to Mr. Binney’s argument in the Girard Will case, 2 Howard’s Rep. 155, as having been decided prior to the passage of the act of 43rd Eliz., not one of them is in the name of the Attorney General.
    And the very first case cited is a case where the plaintiff is son of a woman who had placed six hundred marks in the defendant’s hands for the purpose of founding a charity in the church of St. Peter, which he had neglected to do.
    The other cases there cited are in the names of trustees, sometimes in the names of parishioners in behalf of themselves and others — and in short these bills seem to have been filed either by the donors or their heirs, or by persons having an interest in the fund — .or by owners.of property in the neighborhood of the charity; in short they were filed in all sorts of ways and by almost all sorts of persons, but never by the Attorney General.
    The fact is, except as a mere matter of form it can make no difference to the real justice of the case whether the suit is prosecuted in the name of the complainant, as one of the original donors, or whether it is filed in the name of the State, using the the name of David R. Kemper as relator. The real object is to ascertain the character of the trust, and to have it enforced and charity administered according to the original intent of the donor. And it does appear to me to be trifling with the justice of the case while we are .discussing this matter of form.
    Again, we claim that David R. Kemper has such an interest in this matter, that he can sustain this suit independent of his privity of contract with the Lane Seminary, as one of the donors. He, as a member of the Presbyterian Church in the United States, has one of the qualifications of becoming a teacher in the Seminary.
    He also, as a member, is qualified to form one of the Executive Committee and one of the trustees, and being one of that class of persons who has a right to see that the trusts are executed. Again, as one of the members of the Prebyterian he is interested in having the pupils of this institution taught by professors of his own religion. It is from these pupils he expects himself or his children to receive that religious instruction which it was the aim and object of these donors to provide, and he has a right through the medium of this Court to prevent an abuse of the trusts. And being one of a large class of persons who stand in such a posititon that, if the trust was properly executed, they might become trustees, or members of the Executive Committee, or teachers, or might be benefitted by the kind of teaching which these pupils might receive; he has the right to file this bill.
    Rut if the Court should think it at all important that this form should be observed of suing in the name'of the Prosecuting Attorney, we ask, in order to arrive at the justice of the cause, and to prevent a sacrifice of the substance to the form, that the plaintiff have leave to amend by inserting the name of the Prosecuting Attorney, and David R. Kemper as relator. Even in England, where it is held that such a bill must be in the name of the Attorney General, where that ceremony and form has been omitted, the Chancellor permits such an amendment to be made, in order to arrive at the justice of the case. Such an amendment was made in Well-beloved v. Jones, 1 Cond. Eng. Cha. 21. Corporation of the Sons of Clergy v. More, 9 Simons Cha. 610, 614.
    The case is an important one not only to these parties, but as affecting a large class of donations made by public spirited and pious men. It affects not only the administration of the funds and property of the Lane Seminary, but the administration of the funds and property of every institution in the State and of every trust established for public or charitable purposes. Our object in coming here is not to have this Court undertake to investigate and scrutinize the religious opinions of individuals, we wish not any man to change his religious opinions and embrace ours, further than such change might be produced by a thorough conviction that ours is the correct opinion. We wish every man to interpret the scriptures for himself; but when men professing one set of religious doctrines, and one form of church government, undertake to disseminate the doctrine and government, with funds and property designed for teaching a different doctrine and form of church government, we think we have a right to complain, and tq insist the fund shall not be so perverted.
    If the defendants deem the doctrines and form of government of the Presbyterian Church obsolete, contrary to scripture, to common sense, or to the progress of the times, we have nothing to say. They have a right to believe and to teach other doctrines, and to establish other forms of church government, but as was said by the chancellor in Kniskern v. the Lutheran Churches of St. John’s and St. Peter’s and others, 1 Sandford, 561, “the law does not permit them to use the property of others to sustain their views. They are trustees of this fund, and neither justice nor honesty will tolerate them in taking the fund given by others, (their ancestors it may be, but given for the purpose of supporting the doctrines of that confession) and using it to attack and destroy those doctrines.”
    As is said in 2 Denio, 552, “ all denominations of Christian worshippers have an interest in the question, for unless the title to property held in trust for religious and charitable uses is to be determined by the Courts as intimately connected with the doctrine and faith and form of church government, established by the patrons and founders of each church, there can be no. stability in the churches nor even a faithful execution of the trusts. But the character and integrity of the government is concerned in seeing all such trusts protected and faithfully executed.”
    We therefore claim that the Court will decree the defendants to execute the trust according to the intent of the donors in the trust deed, by first electing a majority of the executive committee and all the professors and teachers of persons belonging to the Presbyterian Church as it existed when the donation was made. Second, that they enjoin the defendants from selling or disposing of the trust property.
    The Court have power to declare the offices of unqualified persons and of trustees who have abused their trusts, vacant, and to order new elections or appointments in which persons incompetent should be excluded, and the chancellor has sometimes directed a master to appoint or to have an election made. 1 Sandford’s Cha. 563; 9 Paige Cha. 281; 10 Paige Cha. 627; 3 Green’s Cha, Rep. 99 ; Lady Hewley’s cáse, 9 Clark & Finney, 373; 11 Simon’s, 592.

      Chase, Starr and Tilford, for Defendants.
    This case comes before the Court upon demurrer to the complainant’s bill.
    The complainant is the same person who was relator in the Quo Warranto cases against Doctor Beecher and Professors Stowe and Allen, of Lane Seminary, which were decided at the last Term in Bank of this Court.
    The object of the Bill is to present for decision the same questions, in substance, which were presented by the relator. It asks this Court to compel the Trustees of Lane Seminary, incorporated by the General Assembly, to do what this Court upon the relation refused to do, namely,, to oust Messrs. Beecher, Stowe and Allen from their several offices in the Institution.
    The counsel for the complainant has dwelt upon the division of the Presbyterian Church in 1838, and the alleged differences of Faith and Government, between the two great bodies into which the original Church was separated. He claims that the highly respectable division to which his client is attached is the true, original, primitive, unaltered and unalterable Church, and that the division to which Nathaniel Wright and his associates, and Messrs. Beecher, Stowe and Allen belong, is no better than the degenerate plant of a strange vine. We are of opinion that £°°d can come of any controversy, before this Court, upon merits of this claim — that, ten years having elapsed since the division, and each party having retained the Institutions and property which it then held, it is better for both sides that a perpetual truce be established, and both parties quieted in their respective possessions.
    We therefore do not propose, unless compelled by a decree of this Court, to enter at all into the investigation to which we are invited by the counsel for the complainant. Protesting that the charges of the bill that persons not qualified by membership in the Presbyterian Church, have been appointed members of the Executive Committee or of the Faculty of Lane Seminary; are all groundless, we shall confine ourselves in this discussion to the points raised by the pleadings.
    These are two:
    T. Is it competent for David R. Kemper to maintain a suit in equity to enforce the performance of the trusts upon which the Trustees of Lane Seminary hold the corporate property ?
    2. If such a suit may be maintained in the name of an individual private person, has David R. Kemper any such interest in the subject matter of controversy, as will enable him to maintain it?
    1. As to the first of these questions, it is to be observed that David R. Kemper, with his co-grantors, conveyed the tract of land described in their deed, of December 9, 1829, a copy of. which is annexed to the argument of Mr. Fox, upon the same trusts precisely, which are specified in the act of incorporation: so that the effect of their deed is exactly the same that it would have been, if they had conveyed to the Trustees upon condition that the Trustees would establish the Seminary upon their land, and govern it according to the provisions of the charter. Suppose then the conveyance had been in this form, and the Seminary established upon the land and so that condition complied with, could David R. Kemper maintain this bill to compel the Trustees to administer the affairs of the corporation in conformity with the charter ? It is clear that he has no visitatorial, or as I prefer to write it, visitorial power over Lane Seminary.
    The nature and extent of this power are well defined Chancellor Kent. It “ arises from the property which the founder assigned to support the charity ; and as he is the author of the charity the law gives him and his heirs a visitorial power; that is, an authority to inspect the actions and regulate the behaviour of the members that partake of the charity.” Of these “he is to judge according to the statutes and rules” of the Institution.
    David R. Kemper has not and never had any such power as this. None could arise from his grant of land for he was not the perficient founder of the charity; that is to say, not “ the person who originally gave to it its -funds and revenues.” Allen v. McKeen, 1 Sumner, 300. The charter of Lane Seminary was granted on the 11th February, 1829, and the corporation was in full existence when the deed of the Kempers was executed. If, under these circumstances, each of these grantors became invested with a visitorial power, then every donor, or grantor, for valuable consideration of any property to an eleemosynary corporation would become invested with like power, and the Institution would be subjected to as many visitors as there might be grants to it. This is absurd.
    But argument on this head seems to be unnecessary in this case, for the grant was to incorporated trustees. And it is “ well settled as a general rule in the construction of charters, that if the objects of the charity are not incorporated, but certain trustees are incorporated to manage the charity, the visitorial power is deemed to belong to the trustees in their corporate capacity.” Allen v. McKeen, 1 Sumner,. 301; Dartmouth College v. Woodward, 4 Wheat. 675.
    It is quite clear, therefore, that the complainant is not entitled to the aid of this Court in the exercise of any visitorial power. He has not, in fact, made any case for such aid in his Bill. He cannot invoke the aid of the Court unless he avers that he has .attempted to exercise such power but has been hindered by the defendants. But the Bill contains no such averments. It is framed upon a totally different theory.
    It states a case of trust. It avers a grant of lands upon certain trusts, and avers that these trusts have not been fulfilled. And it is quite true that “ as managers of the revenues of the charity the trustees are not beyond control: but are subject to the general superintendence of a Court of Chancery, for any abuse of their trust in the management of it.” Allen v. McKeen, 1 Sumner, 301. ■
    This doctrine is well stated by Judge Story, 2 Equity, 434. “ Where a charity is definite in its objects and lawful in its creation, and it is to be executed and regulated by trustees, whether they are private individuals or a corporation; there the administration properly belongs to such trustees; and the King as parens patrice has no general authority to regulate or control the administration of the funds. In all such cases, however, if there be any abuse or misuse of the funds by the trustees, the Court of Chancery will interfere, at the instance of the Attorney General or the parties in interest, to correct such abuse or misuse of the funds. But, in such cases, the interposition of the Court is properly referrible -to its general jurisdiction, as a Court of Equity, to prevent abuses of a trust, and not to any original right to direct the management of a charity or the conduct of the trustees.”
    In general, then, it seems that Bills to compel the performance of trusts by incorporated trustees must be filed by the proper representation of the government, or a party in interest. In Ohio, even a party in interest must come into Court by the representation of the government; for the 24th section of the Quo Warranto act, (Swan’s Statutes, 775,) provides that “ nothing in this act contained is intended to restrain any Court of Chancery in this State from enforcing the performance of trusts for charitable purposes, at the relation of the prosecuting attorney, or from enforcing trusts, or restraining abuses in other corporations, the suit of the persons injured.

    The clear distinction made in this section between eleemosynary corporations and others, speaks for itself. As to the former, only the Prosecuting Attorney, if satisfied that a case exists requiring the interposition of equity, can call for such terposition.
    The first question involved in this case must, therefore, I apprehend, be answered in the negative.
    As to the second question, if I am wrong in supposing that in Ohio, no private person can file a Bill in his own name, to inforce the performance of corporate trusts, in remains to inquire whether David R. Kemper has such' an interest in the property of Lane Seminary as will enable him to maintain the present Bill ?
    1. We have already seen that he possesses no right as visitor ; consequently this ground for his claim of right to sue, much relied on by Mr. Fox, must be abandoned.
    2. The only condition in the deed, not expressed in the charter, is, that the Seminary shall be established on the granted land. This has been done. The Seminary is there. The deed then must be treated, as has been already said, as a grant to the Seminary on condition that the lands be appropriated to the uses pointed out by the charter.
    It was not a mere benefaction. It was a grant for a valuable consideration. The grantors owned, as appears from the Bill, adjoining lands. The establishment of the Seminary on the granted land would greatly enhance the value of that retained. This was doubtless a moving consideration for the deed, though others, of a higher nature, had influence, and appear more prominently.
    Now it may be conceded that if the trustees manifest a purpose to remove the Seminary to other lands, or to use the lands granted for any purpose contrary to the clear intent of the charter, whereby the complainant or his property will sustain damage, he may be entitled to relief in equity. But he makes no such case. He complains of no injury to himself or his property. He appears for the community at large, and complains of a breach of trusts in which hundreds of thousands have an equal and the same interest with himself. It seems too clear ^01' argument that a complainant, so circumstanced, is not “ a in interest ” in the sense of the authorities.
    3. The complainant can complain of no injury to the reversion, for he has no reversion however remote. It is expressly declared in the deed “ that in no case shall any part of the aforesaid property, appurtenances or avails thereof, ever revert to them, (the grantors,) their heirs or assigns.” Should Lane Seminary fail or become extinct, the property must go to one of the benevolent societies named in the deed. It is difficult to conceive of a case in which the grantor of land to a charitable institution could more completely divest himself of all interest, present or future, visitorial or other, in the land granted, than these grantors have done. If the trustees of Lane Seminary have forfeited their title to that land, David R. Kemper is not the person to complain. The Education Society, the Bible Society, the Tract Society and the Colonization Society, are alone entitled to the interposition of the Court as “ parties in interest.”
    It is to be remembered, finally, that the objects of this Bill are not properly attainable by a proceeding in equity.
    So far as the complaint goes to the leasing of some portion of the lands, it is very obviously unsustainable. There is no stipulation in the deed that no portion of the land shall be leas- or sold. The sole stipulation as to the use of the lands is, that the Seminary be established upon them. As to the part of the sixty acre tract not necessary for this purpose, there is no stipulation. In the absence of such a stipulation the charter must govern, which gives full power. And it is quite obvious that for the benefit of the Seminary, and to carry out the very purpose of the charter as recognized in the deed, it may become very necessary to lease some portion of the lands for residences, boarding houses and the like, if not to sell some. If the Trustees may lease without breach of trust, it is a sufficient answer to the alternative allegation that they have leased or sold, or threaten to lease or sell. Besides the bill only charges that the Trustees threaten to lease or sell the greater part ? Now, to say nothing of the vagueness of the charge of threatening without the allegation of any specific acts, they might certainly lease or sell “the greater part” of sixty acres — say thirty-one acres— and still retain quite sufficient for any purpose contemplated by the deed or charter.
    The charges as to breach of the provisions of the charter and deed, in relation to manual labor, are also quite too indefinite. The charge is, that “ the trustees have refused to establish' regulations, requiring manual labor; or, if they have established such regulations, complainant is informed and believes they are not enforced.” This charge is in the alternative, and too vague. No case of neglect to enforce the regulations is stated. The extent to which the complainant thinks such regulations should be enforced, is not indicated. What degree of severity and strictness is supposed to be necessary to avoid the charge of neglect, does not appear. Besides this, the bill itself prays no relief, unless by the general prayer, against acts or omissions of this sort. Under these circumstances, we think the Court will be disposed to leave. these matters where, unless a clear case of breach of trust be shown, the law leaves them, in the sound discretion of the trustees.
    The general principle applicable to these charges, is indicated with sufficient clearness by the Court of Appeals in Kentucky, in the case of Chambers v. Baptist Education Society, 1 B. Munroe, 223; of which case we will remark, in passing, that while the decision is right, the Court seem, in the course of the opinion, to recognize a doctrine not necessary to the case, and unsustained, as we believe, by the current of authorities — that individual donors or grantors, of realty or personalty, however inconsiderable their gifts or grants may be, and although they retain no interest, are entitled to the aid of Chancery in enforcing the uses of the gift, or grant. We say “seem to recognize,” for when the case is scrutinized, it will be found that the real doctrine of the case applies only to unexecuted contracts of subscription, in aid of a charitable corporation, and merely declares that a party to the contract of subscription, if seduced into it by false representations, or suppression of the truth, or if the consideration has failed, has a right in this, as well as in all other contracts, to ask its dissolution, and an injunction against the payment of the money subscribed by him. But to return to the principle, applicable, as we have said, to the charges of the complainant. It is stated as follows: “ Nor is the allegation, with respect to the insecurity of the fund, sufficiently specific and certain to demand the interference of the Court, even if the complainant had a right to inquire into the matter. All the allegations, in relation to the Treasurer’s failing to give the security required, may be true, and still the fund be sufficiently safe in his hands. And we are not disposed to indulge in presumptions beyond the specific allegations of the bill, which tend to impute negligence and infidelity to men, the most of whom have been selected and entrusted by the Legislature, with the high and responsible functions committed to the trustees, by the charter before us.”
    All this, however, is really aside from the true case. It is known to every body, and apparent enough on the face of the bill, that the real object of the proceeding is, not to enforce reform in the administration of the corporate property, but to compel the trustees to oust certain persons from certain offices, because disqualified in law to hold them, and to elect certain others in their places.
    Now it it is quite clear that if any person is in office without right, there is a clear and adequate remedy at law, unless it has been lost by lapse of time. If it has been so lost, this Court will not interpose its extraordinary power, to defeat the effect of. the statute of limitations, and least of all, in such a case as this.
    Besides, it is well settled, and so held by the Court of Appeals of Kentucky in the case already cited, that a Court of Chancery “ cannot inquire into acts of misfeasance, or non-feasance, with a view to the amotion of any members of the corporation, or with a view to the dissolution of the corporation; ” Cham

      bers v. Bap. Ed. Society, l B. Munroe, 216. This, we apprebend, is conclusive against the complainant.
    For these reasons, then, 1. That a bill to enforce the formance of corporate duties or trusts, cannot be maintained by a private person in Ohio; 2. That the complainant has no such interest as will entitle him to maintain this bill; and 3. That the objects of the bill, set forth with sufficient certainty, are not such as can be reached by a proceeding in equity,— we claim that the demurrer should be sustained, and the bill dismissed.
    We add, merely, that while we believe this disposition of the case is demanded by the weight of reason and authority, we are, also, fully satisfied that by it substantial jnstice will be done to all parties concerned.
    We add, further, that D. R. Kemper is only one of the four joint grantors. If a bill can be maintained at all, must not the four join ?
    Suppose, also, the demurrer overruled, the case litigated, and Wright, Beecher, and others, ousted, and Old School men appointed, then any donor or grantor of the New School could file his bill, and complain that the new Professors and trustees are not Presbyterians, bringing the whole matter jnto litigation again. A decree in favor of a private person, concludes nothing. If the Government, by its officers, obtain a decree, all are concluded.
   Birchard, C. J.

Two grounds of objection are taken to this bill. 1st. That it is not competent for the complainant to maintain a suit in equity, to enforce the performance of the trusts upon which the trustees of Lane Seminary hold the corporate property.

2d. That if such suit may be maintained by any private individual, that complainant has no such interest in the subject matter, as will enable him to maintain it.

In support of the bill, and in answer to these grounds of objection, it is argued that there is a direct privity of estate and of contract between the grantor and grantee, in the deed, and so long as both parties are living, either party may enforce its execution. If this be so, it must be because their remains some . , . in the grantor, as certm que trust, or beneficiary, or that he stands in the relation of founder, retaining an interest.

We can see no such interest. The mere fact of being a Presbyterian of the Old School is insufficient. No one would pretend that any member of that branch of the Presbyterian Church could maintain the bill. But if that relationship would in any case be sufficient, such suit would have to be presented by all persons belonging to the society, or by some one sueing for himself in behalf of all. This bill proceeds on no such ground, and as said before, mere membership of that branch of the Presbyterian Church would not be sufficient. This is not like the case of one who, being a member of a congregation, sues in behalf of himself and other members of the same congregation to compel the proper administration of a common property, in which each and every member has a specific but joint interest, for here there is no interest in the estate. The deed expressly grants away the entire estate and “ covenants that in no case shall any part of the property or its avails ever revert to the grantors their heirs or assigns,” but in case the Lane Seminary shall ever fail or become extinct shall go to certain religious or benevolent societies. No right remained in Kemper under this deed. The property from him passed to a public institution as a gift to the public, or for the benefit of the public, and he can claim no right to interfere beyond that of any other member of community. The consequences of allowing a suit to proceed in his name would be that it would conclude nothing, and the door of litigation would never be thereby closed. If Mr. Kemper may file his bill and compel an answer, so may any other individual who has donated propperty or funds to the Seminary, for each donor has the same right, and when the suit of one is determined, if it fail, another may prosecute a like suit, and so on ad infinitum, and neither one or all the cases thus decided could be plead in bar to a further litigation. This shows that however great may be the wrong conplained of, there is much propriety in requiring suits of this nature to be carried on and conducted in the name only of a public officer, who may lawfully represent the whole munity, or at least all that portion of it who are interested equally with complainant. It has been claimed that a visitatorial power existed in Kemper as founder, which would enable him to supervise the execution of the trust and maintain a bill to correct abuses. But the case shows no such founding of this Seminary, as entitles him to the exercise of visitatorial powers. He was but one of several donors, and the donation was to incorporated trustees. This vested the visitatorial power of all the donors in those trustees, subject only to the control of a Court of Chancery for any abuse of their trust. Allen v. McKeen, 1 Sum. Rep. 300. And as before stated, the general Chancery power of the Court should only be exercised when called into action by a party who may prosecute, and in whose favor or against whom the decision will be obligatory and final as to all matters involved in the litigation. If we are correct in this, the objections presented by the defendants on demurrer are, in the opinion of two members of the Court, substantial, and not, as argued by counsel, a mere matter of form.

But were it admitted that as donor he has a right to require the trustees to adhere strictly-to the objects of the donation and not divert the funds, it must still be observed that he is but one of several grantors in the deed and should not be allowed to proceed and try the question which he makes upon the bill, and which shows the others equally interested, without bringing them before the Court.

Again, we are asked to allow an amendment should we deem it important that the suit be brought by the prosecuting attorney. In reply to this it may be said that amendments, when proper, are a matter of discretion, to be granted or refused according to the dictates of a sound legal judgment. Upon the question whether this is a case for amendment we are divided, and give, according to the course of our practice, no opinion. The motion fails on division.

Bill dismissed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    The Portage County Mutual Insurance Company vs. Henry Wetmore and others.
    Where a charter creates the office of Treasurer, it becomes one of his duties from the nature of his office, to receive and account for money, and his sureties in his official bond, conditioned that he shall perform his duties agreeably to the regulations, requirements, and restrictions of the charter, are responsible for the money which may come into his hands as Treasurer.
    When the charter makes it tho duty of the" Treasurer "to receive and account for money, and the condition of the bond only refers to the charter, and the assignment of the breach in the declaration is, that the Treasurer has violated his duty, both under the charter and the by-laws of the company, but both refer to the same breach, the averment that it was in violation of the by-laws, will be regarded as surplusage, and will not vitiate the declaration.
    This is a Writ or Error to the Court of Common Pleas of Summit County.
    The action below was debt, brought against the defendants as sureties on an official bond. The principal obligor is dead, and the defendants are sued as survivors as well as sureties. During the progress of the cause, in the Court below, the declaration was several times amended. As last amended, it contains five special and the general counts, and is the only one now brought to the notice of the Court.
    All of the special counts are predicated on a bond, made on the 18th day of October, 1838, by the defendants and one Ogden Wetmore, who has since deceased, to the plaintiffs, in the penal sum of five thousand dollars, conditioned that “ whereas the said Ogden Wetmore has been elected Treasurer of said association, for one year from the seventeenth day of October, 1838; now if the said Ogden Wetmore shall faithfully discharge the duties of said office, agreeably to the regulations, requirements and restrictions of the act incorporating said association, then this obligation is to be void, otherwise to remain in full force,” &c.
    The first and fourth counts are, in all substantial respects, alike, and after setting out the bond, with the condition thereof, and that Ogden Wetmore had accepted the appointment, aver “ that agreeably to the regulations, requirements restrictions of the act incorporating said association, and the by-laws of said association, authorized by said act to be made,” (and which act and by-laws are set forth at large in the first count,) “it became and was the duty of the said Ogden Wetmore, so being Treasurer, as aforesaid, to receive and keep all moneys which should come into his hands, for the use of said association,” and the same pay over or disburse as the company should direct, and that during the time limited in the bond, he received in his capacity as Treasurer, various large sums of money belonging to the plaintiffs, which he did not keep for them, or disburse according to their direction, but converted to his own use.
    The second and third counts are also alike in all material respects; nor do they differ substantially from the first and fourth counts, except in this, that in these counts, the duties of Treasurer, of which breach is averred, are alleged to exist, by virtue of the act of incorporation alone, while in the first and fourth counts, the same duties are attributed to the joint operation of the charter and by-laws.
    The fifth count also attributes his duties to the charter alone, but differs from the four preceding counts, by averring that agreeably to the regulations of the charter, the said Wetmore was removable from office at the pleasure of the Board of Directors, and that he continued to be Treasurer from the said seventeenth day of October, 1838, until the third day of February, 1840, during which period he received various sums of money, belonging to the company, which he did not keep or pay out for them, but converted to his own use.
    General demurrers — one to the first and fourth — one to the second and third — and one to the fifth — were interposed to the special counts, and the plea of nil debet to the residue.
    The Court of Common Pleas sustained the demurrer, and the common count being abandoned by the plaintiff, judgment was rendered for the defendants.

      This writ is prosecuted to reverse the judgment of the Court of Common Pleas, and the error assigned is that the said Court sustained the demurrer to the special counts.
    The provision in the charter of the Company, creating the office of Treasurer, is as follows:
    “They [the Board of Directors] shall have power from time to time to appoint a Secretary, Treasurer, and such other officers, agents and assistants as to them shall seem necessary, and prescribe their duties, fix their compensation, and take such security from them, as they may deem necessary for the faithful performance of their duties, and them remove at pleasure.”

      Hitchcock, Willson &/• Wade, and Carpenter &f McClure, for Plaintiff in Error,
    Contended that all the duties, breaches of which are alleged in the declaration, are the necessary incidents of the office of Treasurer; that the charter authorized the Board of Directors to appoint a Treasurer, prescribe his.duties, and take such security as they deemed expedient, and consequently that the condition of the bond was broad enough to embrace the duties required by the by-laws of the Company. They cited the following authorities:

      Farrar &f Brown v. United States, 5 Pet. Rep. 373 ; .Ohio v. Finley, 10 Ohio Rep. 51 ; United States v. Bradley, 10 Pet. Rep. 344; United States v. Linn, 15 Pet. Rep. 290; United States v. Boodey, 1 Wood & Min. Rep. 150; American Bank v. Adams, 12 Pick. Rep. 305; Miner et. al. v. Mechanics Bank, 1 Pet, Rep. 46; Swan v. Young, 16 Ver. R.ep. 658; Barrington v. Bank of Washington, 14 Serg. & Rawle’s Rep. 405 ; Bank of Carlisle v. Hopkins, 1 Monroe’s Rep. 245; Greenfield v. Gates, 2 Rawle’s Rep. 185; Bank of Northern Liberties v. Ores sen, 12 Serg. & Rawle’s Rep. 306; Burroughs v. Lowder, 8 Mass. Rep. 373; Clapp v. Cassam, 7 Mass. Rep. 98; Freeman v. Davis, Ibid. 202; 1 Watts & Serg. Rep. 263.

      Otis Wolcott, for Defendants in Error,
    Maintained that as this was a claim against sureties, it was a claim strictisimi juris, and could not be carried beyond the strict letter of the bond ; that by its very terms no cause of action could arise upon the bond against them, except for a violation by Ogden Wetmore of some one of the regulations, requirements or restrictions of the charter, and that to make them responsible for the acts of Wetmore in not discharging the duties imposed upon him by the by-laws of the Company, would be subjecting them by implication to a liability they had never assumed. They cited the following authorities :

      Barker v. Parker, 1 Term. Rep. 287 ; Glyn v. Ilertel, 8 Taunt. Rep. 208; Lanuse v. Barker, 10 Johns. Rep. 325; Walsh v. Bailie, 19 Johns. Rep. 182; Walrath v. Thompson, 6 Hill’s Rep. 540 ; Smith v. Dann, Ibid 543 ; Bacon v. Chesney, 1 Stark. Rep. 192; Melville v. Haydon, 3 Barn. & Aid. Rep. 593 ; Stratton v. Rastall, 2 Term. Rep. 371, Dobbins v. Bradley, 17 Wend. Rep. 425 ; Courtis v. Dennis, 7 Met. Rep. 517 ; Miller v. Stewart, 9 Wheat. Rep. 702; Spriggs v. Bank of Mount Pleasant, 14 Pet. Rep. 208; Mauran v. Bullus, 16 Pet. Rep. 837 ; United States v. Boyd, 15 Peters’ Rep. 187 ; McMicken v. Webb, 6 How. Rep. 292; The State v. Crooks, 7 Ohio Rep. 221; The State v. Johnson, 13 Ohio Rep. 480 ; Clinton Bank v. Ayres, 16 Ohio Rep. 292 ; Line v. Stephenson, 4 Bing. N. C. 678; Hare v. Horton, 5 Barn. 6 Adol. Rep. 715; Sumner v. Williams, 8 Mass. Rep. 201; Toussaint v. Martinnant, 2 Term. Rep. 103 ; Reed v. Rann, 10 Barn. & Cress. Rep. 438; Stannard v. Forbes, 6 Adol. & El. Rep. 634; Selway v. Fogg, 5 Mess. & Wei. Rep. 83 ; Rex v. Damerill, 7 Barn. & Cress. 569; Hume v. Rundell, 2 Sim. &. Stu. Rep. 174 ; Gerrard v. Clifton, 7 Dura. & East’s Rep. 679; Nerid v. Marshall, 5 Brod. & Bing. Rep. 319; Russell v. Clark, 7 Cranch’s Rep. 90; Douglass v. Reynolds, 7 Pet. Rep. 122; Bell v. Bruen, 1 How. Rep. 186 ; Birckhead v. Brown, 5 Hill’s Rep. 642.
   Read, J.

It is claimed that the sureties to the bond in ques-ti°n are not liable, because the condition provides that Wet-shall discharge the duties of said office agreeably to the regulations, requirements and restrictions of the act incorporating said Corporation, when said act prescribes no regulations, requirements or restrictions, relating to the duties of Treasurer; and hence that it is impossible to assign a breach upon such a condition. The breach is, that the said Wetmore failed to pay over money which he received as Treasurer. The by-laws of the Company prescribe it as the duty of the Treasurer to receive and pay out money. The charter defines no specific duty to be performed by the Treasurer.

The failure to pay over money is a breach of the condition of the bond.

The provision in the condition, to discharge the duties of said office agreeably to the regulations, requirements and restrictions of the charter, is not designed to relieve the sureties from responsibility for the non-performance of duties within the scope of the charter; but if it had been attempted to make the sureties responsible for duties imposed upon the Treasurer beyond the powers of the charter, the words of the condition would exempt the sureties.

It is conformable to the express power of the charter that the Treasurer should receive and account for money. To receive and account for money is a duty conformable to the regulations, requirements and restrictions of the act. If it were in contravention of the powers, restrictions and regulations of the act, the sureties to this bond would not be responsible for its non-performance. The charter provides that the Corporation shall have a Treasurer. To receive and account for money constitutes a Treasurer. The power to appoint a Treasurer is not derived^to the Corporation from its by-laws, but its charter. The power and duty of the Treasurer is not derived from the by-laws, but the charter. The Corporation would have no power to confer authority, or impose duties upon the Treasurer, as such, not consistent with the office of treasurer. The condition of this bond then is simply that Wetmore shall discharge the duties imposed by the charter. True the charter provides that Company may prescribe the duty of the Treasurer, but this is ted to the execution, and is not a grant of original power. It would not authorize the Corporation to prescribe duties inconsistent with the office of treasurer. It is not pretended in this case that the duty omitted, which is assigned as the breach of the condition, is not a duty belonging to the office of treasurer. The duties of treasurer, the sureties of Wetmore have undertaken that he shall perform. How? Agreebly to thé regulations, requirements and restrictions of the charter. Is it agreeable to the regulations, requirements or restrictions of the charter, that Wetmore should receive and account for the money of the Company ? This will not be denied. But it is said there were no regulations, restrictions and requirements respecting the duties of Treasurer. This is not so. There are regulations, restrictions and requirements in the charter, respecting premium notes, the per centage to be paid, and how and when it shall be collected, &c. But it is said the charter does not impose, the duty upon the Treasurer to receive and account for money. It does, for this is the very essence of the office of treasurer, which the charter creates.

The duties of the Treasurer are to be performed in all respects in conformity with- the charter.

In some counts in the declaration it is charged that the defalcation of the Treasurer was in violation of his duty under the charter, and in others that it was in violation of his duties imposed both by the_ charter and by-laws. The defalcation was in violation of both. The condition of the bond refers only to the charter, but the terms of the charter indicate the duties imposed by the by-laws. The by-law is only designed as an execution of the power of the charter. The only objection which could be urged to the counts, that charge the defalcation to be in violation of both charter and by-laws, would be that of varience. This goes to the pleading, and not the liability. But as the reference to the by-laws is merely by way of addition and not description, such objection is not tenable. Had the bylaws attempted to enlarge^ the responsibility of the sureties, by imposing unusual duties upon the Treasurer, and not contained in the charter, the sureties would be protected by the words of their bond. We do not say but the Company might have imposed other duties upon the person acting as Treasurer besides those strictly of Treasurer, but as to such duties the sureties would not have been responsible, merely because different classes of duties were imposed upon the same-person.

We are unable to perceive any ground upon which the sureties should be exempted from their,liabilty upon their bond in this case. >

We admit to the fullest extent that sureties are only to be held responsible according to the exact letter of their obligation. We intend in no sense to relax the stringent rules in favor of the sureties. But we hold in this case, that the sureties are liable according to-the exact words of the bond.

The judgment of the Court sustaining the demurrer is overruled. ' ■


author: Avery, J.

text:
    Daniel J. Mattocks and another vs. Oliver Humphrey’s Adm’r. and others.
    In a bill to subject the mortgagor's equitable interest in land, it is not necessary to tender the money due to the mortgagee 5 and in such proceedings the equity of the mortgagor may be sold. .
    If in the obligation for the mortgage debt, any illegal interest has been incorporated, it will be deducted from the debt 5 but where the obligation has been annually renewed, embracing both principal and interest, annual interest will be allowed.
    This is a Bill in Chancery, reserved in Trumbull County.
    The bill states the recovery of a judgment by the complainants in the Common Pleas of said county, against Oliver Humphrey, the issuing of an execution and return thereon that no goods were found, and that the execution remains unsatisfied. It states further, that the defendant-has no property whereon to levy, but that he has an equitable interest in a tain piece of land described, more than sufficient to pay the judgment. The bill also states that De Wolf, another defendant, holds the fee of the land, but only as security for a debt due him from Humphrey. The bill prays for a sale of the land, and that after the payment of De Wolf’s claim, complainant’s judgment may be satisfied, and any balapce remaining be paid over to Humphrey. There is besides a prayer for general relief...
    The complainants afterwards filed their amended and supplemental bill, stating the death of said Oliver Humphrey, that he left a widow and children, and praying that they and his administrator be made parties.
    De Wolf answered the bill under oath, and admits that Humphrey has an equitable interest in the land, under a contract from him. He denies that he took the deed as a mortgage, as charged in the bill, but declares that he took an absolute deed by express agreement of the parties, and all the right which Humphrey should have in the land, was to be by the contract given him by De Wolf. He is unable to remember the exact sum which he was, by said contract, to pay Humphrey, but thinks it under $400 and more than $300, and supposes that interest at the rate of 10 per cent, was added to the same. He admits that he has settled annually with Humphrey, or intended to do so, and in giving each new contract, the arrears of interest at 10 per cent, were included.
    There was testimony taken in the case, an abstract of which is not essential to an understanding of the points decided.

      M. &f C. G. Sutliff, for Complainants.

      R. P. Ranney, for Defendants.
   Avery, J.

The question first to be settled is, whether this bill can be sustained. And for De Wolf, it is insisted that his title to the land described in the bill, is absolute and in fee simple, and not as a mortgagee. That Humphrey’s right is barely by contract as a purchaser, and therefore the purchase money must be paid before the vendor can be called upon in equity to part with his title. But upon the supposition, that De Wolf holds the land only as mortgagee, that the mortgage debt embraces more than legal interest, and that the debt can be reduced to principal and legal interest, then it is claimed that the bill must be dismissed, because no offer has been made to pay the amount admitted to be due.

However correct may be the positions assumed, as between the actual parties in the transaction, if they were alone before the Court, and litigation between themselves, they cannot be sustained in a case like the present.

Tliis Bill is filed by a judgment creditor under the “act directing the mode of proceeding in Chancery,” and by virtue of the 16th section of the act; Swan’s Statutes, 704. That section provides, that when the judgment debtor has not personal or real estate subject to the levy of an execution, but has “ any equitable interests in real estate as mortgagor, mortgagee or otherwise,” the same may be subjected in Chancery to the payment of said judgment. And the Courts shall decree sales, to vest in every person purchasing under such decree, all the right, title arid interest, of said debtor. The answer admits that Humphrey, the judgment debtor, has an equitable interest in the land. So that a clear case is made for relief under the statute.

But the extent and sufficiency of the relief and the several rights of the parties to be settled by the decree, must depend upon the facts of the case, and the principles applicable to the facts as found ; and in this view, it is of consequence to determine whether the interest of Humphrey in the land, is that of mortgagor or purchaser. If of a purchaser only, then the debt is the contract price of the land, and no question of illegal interest can arise. A different principle 'may be applied in the case of a mortgage. ° °

. We have examined the answer and depositions upon subject, and find proof which is satisfactory to us, that the transactions between these parties is to be regarded as a mortgage ; and a mortgage securing a debt with annual interest at ten per cent. This interest has not been paid, but has been added yearly to the principal. Now if the controversy were between the parties to the mortgage, according to repeated decisions of this Court, the illegal interest would be deducted from the amount of the debt. Can the rule be applied to the parties as now before the Court ?

It is urged, that the right to be exempted from paying over six per cent, interest, is a personal privilege, not to be enforced, except at the request of the party who had contracted to make such payment. But a Court of equity cannot, in the proper exercise of its jurisdiction, decree the payment of illegal interest, when the fact is distinctly shown in the evidence. Besides, in this case, at the instance of a third person, the law brings both these parties into Court as defendants, without any agency of theirs, and undertakes to determine and dispose of all the equitable interest belonging to one of these defendants. This decision is final between the parties. No subsequent investigation or settlement of the matter can take place in any future suit between them.

In settling the amount of Humphrey’s debt, in order to determine his equitable interest in the land, all illegal interest will be deducted. But as it was the purpose of the parties, and generally carried into execution, to renew the note every year, annual interest has been secured according to their dealings, and that arrangement ought not to be disturbed. The cause will be referred to a master, with directions to state an account between the parties, and ascertain the amount due after all payments, offsetts and deductions; and to report the sum due and the value of the equitable interest, to the Supreme Court in the county at their next term. Cause remanded to the Supreme Court of the county.