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14 How. 589,
14 L.Ed. 554, 3 Ohio F.Dec. 94
U.S.
Supreme Court
JOHN
G. GOESELE AND OTHERS, APPELLANTS
v.
JOSEPH
M. BIMELER AND OTHERS
55
U.S. 589
December
Term, 1852
THIS
was an appeal from the Circuit Court of the United States
for the District of Ohio, sitting as a Court of Equity.
The
bill was filed by John G. Goesele and six other persons,
as heirs at law of Johannes Goesele, deceased, against Bimeler
and twenty-four other persons, members of the Society of
Separatists.
The
facts of the case are stated in the opinion of the court.
The
Circuit Court dismissed the bill, and the complainants appealed
to this court.
West
Headnotes
Contracts
k318
95k318
Forfeitures
k5
180k5
Generally,
chancery will not enforce a forfeiture.
Associations
k15(1)
41k15(1)
Partition
k13
288k13
An
association of separatists emigrated from Germany to this
country; and B., their leader, purchased a tract of wild
land in Ohio on credit, and took a deed thereof in his own
name; and it was verbally agreed between the members of
the association that each family should select as much land
as it could cultivate, and pay for the same with the fruits
of its industry. The members afterwards signed articles
of association, renouncing all individual property, and
agreeing to hold all their property in common, under the
management of a board of directors elected by this society,
and to labor in common for the good of the whole community,
and for the comfortable maintenance of each member. The
association afterwards obtained an act of incorporation
and B. signed the articles, and put the lands under the
control of the society. Held, that the heirs of one of the
members who signed the articles of association could not
maintain a bill in equity against B. and the other members
for a partition of the lands.
Perpetuities
k6(1)
298k6(1)
Wills
k625
409k625
A conveyance
by executory devises to be good cannot extend beyond the
life or lives in being and 21 years and the fraction of
another year to reach the case of a posthumous child.
Associations
k1
41k1
Perpetuities
k6(1)
298k6(1)
Articles
of association by which members renounced all individual
property and agreed to hold property in common under management
of board of directors and to labor in common for the good
of the whole community and for the comfortable maintenance
of each member were not unenforceable as constituting a
perpetuity notwithstanding that articles provided for continuance
of association and indefinite period of time in the exercise
of the discretion of its members where majority of members
could require a sale of property and break up association.
*590
It was argued by Mr. Quinn, for the appellants, and
by Mr. Stanberry and Mr. Ewing, for the appellees.
Mr.
Quinn, for the appellants, stated the facts in the case,
the articles of association made in 1819 and 1824, and then
made the following points:
1st.
That the purchase being made for the use of all the members
of the company, the purchase-money paid with the issues
and profits of their joint labor or joint means, and the
title taken by Bimeler, either with or without a fraudulent
intention, makes him a trustee of the legal estate, holding
to the use of the members of the company, each of whom own
an undivided portion of the whole trust or equitable estate.
2d.
That this trust, or equitable estate, is an estate of inheritance,
alienable and descendible like any other fee. 8 Ohio R.
398; 9 Ohio R. 145. And that of such an estate Johannes
Goesele died seised in 1827.
Here
we think the argument properly ends, and that the complainants
are entitled to an account and partition. But to the case
made upon the articles, we say----
1st.
That if the articles of 1819 constituted a partnership,
(which we think they did not,) it became dissolved by Johannes
Goesele's death, or by the first change in its constituent
parts.
2d.
That the articles of 1824 are void for no less than four
different reasons.
1.
Because there is no grantee or assignee to take the property
from the natural persons. Sloan v. McConahy, 4 Ohio
R. 169. The society being unincorporated. 4 Wheat. 1.*591
2.
Because the trusts are vague and uncertain. 3 Kent's Com.
303; Bacon's Ab., Uses and Trusts, 256; Tomlins's L. Dict.,
Trusts; Story's Eq. § 979 to § 1070; 12 Ohio R. 287; 5 Mass.
504; Swan's Ohio Stat. 319; 2 Spencer's Eq. 106; 7 Eng.
Com. Law R. 267.
3.
Because they create a perpetuity. Story's Eq. § 974, n.;
10 Ohio R. 4; 2 Spencer's Eq. 93, et seq. 106; 4 Ohio R.
515; Lord Deerhurst v. Duke of St. Albans, 5 Mad.
235; 4 Kent's Com. 267, 271; 1 Cox, 324; 1 Bing. 104.
4.
Because they are the work of imposition, and a scheme of
Bimeler to defraud his cestui que trusts.
In
addition to these two exceptions taken to the articles of
1824, two others are made, which are alike common to both,
and which, in their natural order, lie in advance of those
just taken. They are----
1st.
That no articles were executed, some of the members having
failed to sign; among whom is the defendant Bimeler, who
now claims protection under them.
2d.
That the so-called Separatists' society, at Zoar, is not
an association or community, but is an institution of a
master and his slaves, or what the Roman jurists characterized
as societas leonina. Story on Part. § 18.
Bimeler,
upon the face of his pleadings, presents five points of
defence.
1.
That by the articles, there is a surrender of property,
and that in consequence no property descended to Goesele's
heirs.
2.
That the institution is to be taken as a general partnership,
with the principles of succession ingrafted upon it, and
its property is to be taken as personalty.
3.
That in virtue of the act of incorporation, passed in 1832,
the entire property passed to the corporation.
4.
That Johannes Goesele's labor was not worth more than his
support.
5.
That the property has been improved with regard to a common
ownership, and cannot now be divided.
The
first of these points, we say, admits the first objection
made to the articles of 1824, viz., the want of an assignee.
For, while it claims a surrender, it does not show to whom
that surrender was made.
Upon
the second point, we think the articles do not constitute
a partnership; yet, if they do, we think it is a waiver
of the whole defence; for, if the members were partners,
they owned the property. But a partnership, with the principle
of succession ingrafted upon it, would be a corporation,
which individuals have not the power of making. In the consideration
of these points, the following cases are cited: Miles
v. Fisher, 10 *592 Ohio Rep. 1; Story on Part.
§ 273, § 18; 15 Johns. Rep. 159; 11 Mass. Rep. 469; Swan's
Ohio Statutes.
The
third point, namely, that Goesele's property passed
to a corporation, five years after his death, is not the
law. 8 Pick. Rep. 455.
Upon
the fourth point, we say that, whether Goesele's
labor was worth more or less than his support, is a matter
after which the court will not inquire; but, finding him
a member of the company, and a joint owner of the estate,
will presume his share equal to that of the other members.
If, however, it makes the inquiry, it will find that he
contributed about twice or three times his proportionate
share.
The
fifth and last point presented on the face of the pleadings,
namely, that the property has been improved with regard
to a common ownership, and is incapable of division, we
cannot but regard as trifling. And yet we find that depositions,
covering no less than thirty pages of printed record, have
been taken to prove this point, together with one other
of similar importance, namely, that the members are well
clothed, well fed, and are contented.
One
other point was raised by the defendant, Bimeler, at the
hearing below, and will probably be raised again. It is,
that 'the society is a charity,' or rather that the property
is a donation to charitable use. This, we say, it is not,
and cite Ambler, 652; Story's Eq. § 1156, 4th ed., § 1182,
1183; Rabb v. Read, 5 Rawle's Rep. 154; Chase's Ohio
Statutes, 1066; Swan's Ohio Statutes, 782; 4 Wheat. 1.
We
are advised that it will be insisted that the society is
what is called a universal partnership. If it is, it will
not help the defence; for such partnerships differ from
ordinary partnerships only in the extent of the investment;
that is, the members invest their all, all their labor,
property, and skill; but in every other particular, including
the causes of dissolution, they are governed by the same
rules that govern ordinary partnerships. Were they, however,
such as is claimed by the defence, they would be corporations.
Again,
we are advised that it will be claimed that the articles
are a contract for survivorship. To this we answer, that
nothing can be farther from both the letter and spirit of
the instruments. Instead of its being provided that one
shall survive to the estate of another, it is expressly
provided, that no one shall survive to, or even have any
thing; and in this particular the first decedent and the
last survivor are placed in precisely the same situation.
Nothing could be more foreign from the intention, than that
the last survivor and his heirs should take the whole property,
to the exclusion of the heirs of all the other members.*593
That
Goesele once owned the property, is admitted; and Bimeler
claims to be nothing but a trustee. In this situation, when
called upon by the cestui que trust to convey the
legal title, he endeavors to defend himself by saying, that
cestui que trust assigned his interest to a third person.
This kind of defence cannot be sustained. For as he is a
mere stakeholder, by his own showing, he must file his bill
of interpleader, and bring that third party before the court
to litigate the right.
He
claims protection, too, under instruments which he never
signed, but which he got others to sign, by representing
that he would also be a subscriber.
Great
complaint is made from the other side, that we are endeavoring
to infringe upon their liberties by prohibiting them from
living in community. This is not so. Mr. Bimeler and his
adherents may live in any way they please, provided they
live on their own property; but we are unwilling to give
them our property to enable them to live in any way whatever.
They say, too, that the appointment of a receiver or a partition
will break up the society. If it does, it ought to be broken
up; for it is an evidence that the members do not wish to
live as they do.
The
articles of 1833 purport to be a revision of those of 1819
and 1824, and also to be an acceptance of an act of incorporation
passed in 1833; but they form a society entirely different
from the one created by the act, for which reason, we think,
the grant of corporate power has been rejected. A grant
of corporate power must be received as it came from the
hands of the legislature, or it is not received at all.
Kirk v. Newill, 1 T. R. 71.
Their
by-laws, too, which are required by the statute to be consistent
with the laws of the United States and the State of Ohio,
are opposed to public policy.
They
require the alienating rights which are unalienable, and
close the doors of the courts of justice against the citizen.
Constitution of Ohio, §§ 1, 16, Bill of Rights; 1 Blackf.
122; 19 Wend. 77. Deprive the husband of his curtesy and
the widow of her dower. 4 Kent, 131; 3 Id. 30, e; 2 Spencer's
Eq. 104; 1 Eden, 415. Their trusts are also vague and uncertain.
They are also executory, and, to divest the member of his
property, are without consideration.
Under
these articles, as well as under those of 1824, if they
are sustained, Bimeler will eventually take the whole property
in absolute ownership. He still holds the legal title. The
members, according to his defence under the articles of
1824, hold an use while they remain members; consequently,
when they cease to be members, either by death or otherwise,
the use *594 estate becomes extinct, and his legal
title takes the absolute property. The same is the case
under the articles of 1833, supposing the company to be
incorporated; for by that arrangement the corporation holds
the use estate in trust for the use of the members. When
the members die, then the corporation dies, and, as a consequence,
there is nobody to look after the trust; therefore, whether
the company is or is not incorporated, Bimeler's legal title
will eventually take the whole estate.
Such
an advantage, to be acquired by an agent over his principals,
a preacher or pastor over his people, and a trustee over
his cestui que trusts, cannot be sustained by any
enlightened system of jurisprudence.
Mr.
Stanberry's brief was as follows:
I propose,
in the first place, to consider the character and legal
condition of this association, as it stood upon the mere
agreements of 1819 and 1824, before it became clothed with
a corporate capacity.
It
is said it was simply a partnership, liable to the incidents
of that condition, and subject to the operation of all the
ordinary causes of dissolution. That, in point of fact,
it was dissolved by the first death which happened amongst
its members, and was capable of dissolution and partition
of its real estate, at any time, at the instance of any
member.
If
it were a pure partnership, these results would have followed.
But I claim this association is not of that character.
The
original agreement provides for a perfect community of property,
real and personal, and for a succession or survivorship
among members on the Tontine principle. It guards, with
great care, against the dissolution of the body. Its property
consisted, at the beginning, of a common stock of money
and chattels, contributed in unequal proportions by the
members, with which, and the labor of the members, real
estate and personalty, to a very large amount, were in process
of time accumulated. The legal title to the real estate
has always been vested in Joseph M. Bimeler, one of the
members. The business of the society has been various. Agriculture,
manufactures, and merchandise, have been carried on simultaneously.
From 1817 to 1833, a period of seventeen years, during which
it was unincorporated, various changes took place in the
body of the society, by deaths, withdrawals, expulsions,
and admissions of members.
With
this general outline, we can enter upon the inquiry which
is opened by the objections on the other side.
And
first, we say, this was not a mere partnership, nor the
members tenants in common. The agreement for community
*595 of property, the mutual surrender of all individual
property into the common stock, and the express stipulations
against any reclamation in the case of withdrawal, and for
the preservation of the common property, for the exclusive
use and perpetual enjoyment of the members, in succession,
are inconsistent with the incidents of mere partnership
or tenancy in common.
There
can be no question as to the intent of these stipulations.
The only doubt is as to their legal practicability.
The
actual practicability of such a society is demonstrated
in this instance. For the sixteen years in which it existed
without a charter it fulfilled all the purposes of its formation,
and secured the comfort and well-being of its members, beyond
the common lot.
But,
it is said, there are legal difficulties which the agreement
of the parties cannot surmount. Let us consider them.
1.
It is said, upon the death of a member, the society was
dissolved ex necessitate. This consequence, though
generally true as to partnerships, does not follow where
the agreement provides against it. It is not an inevitable
consequence. The doctrine of dissolution upon the death
of a partner, only obtains where the deceased partner has
a continuing interest in the property or profits of the
association. It is not just that the surviving partners
should be obliged to carry on the business, without his
cooperation, for the benefit of his estate. Story on Partnership,
453.
I have
said this society was not an ordinary partnership. It very
closely resembles that sort of partnership in the civil
law, which is called universal. 'Universal partnerships
(des societies universelles) are contracts by which
the parties agree to make a common stock of all property
they respectively possess--they may extend it to all property,
real or personal, or restrict it to the personal only. They
may, as in other partnerships, agree that the property itself
shall be common stock, or that the fruits only shall be
such; but property which may accrue to one of the parties,
after entering into the partnership, by donation, succession,
or legacy, does not become common stock, and any stipulation
to that effect, previous to the obtaining of the property
aforesaid, is void.' 'An universal partnership of profits
includes all the gains that may be made, from whatever source,
whether from property or industry, with the restriction
contained in the last article, and subject to all legal
stipulations between the parties.' Civil Code of Louisiana,
art. 2800, 2801.
These
universal partnerships have been adopted into the common
law. Mr. Justice Story thus defines them: 'By universal
partnerships, we are to understand these, that where the
*596 parties agree to bring into the firm all their
property, real, personal, and mixed, and to employ all their
skill, labor, services, and diligence, in trade or business,
for the common and mutual benefit, so that there is an entire
communion of interest between them. Such contracts are within
the scope of the common law, but they are of very rare existence.'
Story on Part. 104.
Such
a form of association being within the scope of the common
law, can it be doubted that, by the mutual consent and agreement
of the members, the effect of a dissolution by death may
be provided against?
In
England, and in the United States, large associations and
joint stock companies exist, under agreements which protect
the members, inter sese, from the ordinary incidents
of partnership, such as dissolution by death, bankruptcies,
assignments, &c. Collyer on Part. 614; Livingston
v. Lynch, 4 Johns. Ch. Rep. 573.
This
association is a general partnership, with the principle
of survivorship ingrafted upon it. In this particular it
takes the character of a Tontine, which is a society with
the benefit of survivorship, the longest liver taking the
common property in absolute ownership. Encyclopaedia Brit.
vol. 37, art. Tontine; Encyclopaedia Amer. vol. 12, art.
Tontine.
I can
see no objection to this provision as to ownership. Certainly
as to personalty there can be no difficulty; but it is said,
in so far as the real property of the company is concerned,
there can be no joint tenancy, no right of survivorship,
in Ohio; and that upon a death of a member, his interest
in the real estate passes to his heirs at law, and that
at any time the right to partition might be asserted.
As
to that, it is to be considered, in the first place, that
this is a partnership, and that the real estate is, by the
articles of association, expressly made a part of the common
stock. This, in equity, stamps it with the character of
personalty. Summer v. Hampson, 8 Ohio Rep. 328.
Fortunately
for the society, the title to its real estate has always
been well vested in one individual. No question can be raised
in this case as to the condition of that legal title, and
as to the equitable title or use, that was in the members
before the act of incorporation, and since then it is in
the corporate body.
I do
not doubt, however, that as a general principle, equitable
estates follow the same rules as to descent, &c., with
legal estates. What I mean to say in reference to the legal,
as distinguished from the equitable, title, is, that there
is a necessity it should vest somewhere, and conform to
general rules as to transfer, descent, &c.
Being
relieved, in this case, from any difficulty as to the condition
of the fee in the real estate of this society, all we have
*597 to look to, is merely the equitable interest or
use which enured to the members, who stood in the relation
of cestuis que trust to Bimeler, the holder of the
legal title. As I have before said, this interest in partnership
property is viewed in this court simply as personalty.
But
if that were not so, if it were strictly an interest in
real estate, and to be made conformable to the rules which
govern real property, I deny that the principle of survivorship
may not be grafted upon it.
Our
court has said, in an early case, (Sergeant v. Steinberber,
2 Ohio Rep. 126,) that the estate by joint tenancy does
not exist in Ohio. That case only required of the court
to decide that it does not exist here by mere operation
of law. But that the principle of survivorship may not be
provided for and exist by limitation, in Ohio, has never
been decided. On the contrary, we have reported cases which
recognize it. Miles v. Fisher, (10 Ohio, 1,) is a
case of that character. The court say in that case, 'Laying
out of view the doctrine of survivorship, resulting from
joint tenancy, an incident of the estate depending on the
law and not on the act of the party, we find the testator,
by express words, limiting the estate to three trustees
and the survivor. The estate well passes by these words
to the survivor for life, the remainder in fee is not disposed
of.'
There
is, then, no objection to survivorship by express limitation
or agreement. This being so, there has been no descent to
any heirs of the deceased members of the society, and there
is no present right of partition in any of the living members.
It
is also said that even as to the personal property, it is
difficult to fix its ownership distinct from the individual
right of each member making the contribution, and that the
idea of accumulation for an unincorporated body is a fallacy.
This
difficulty is altogether fanciful. The members of this partnership
are in no way uncertain, for no one is a member whose name
is not subscribed to the articles of association. It is
a large partnership. The accumulation is for the partners,
not for an ideal company or mere abstraction. The property
loses its individuality as to ownership the instant the
owner becomes a member. It stands like the property of any
other partnership. The partners are joint owners. No formal
transfer of delivery is necessary; the possession by one
partner is the possession of all.
Objection
is also made to this association, that the principle of
community and succession of property among the members,
involves a perpetuity. There is nothing like a perpetuity
in it. The society has the perfect right of disposal over
all its property, real as well as personal, and this power
of disposal is *598 wholly inconsistent with the
idea of perpetuity, which only exists where property is
so limited that no living agency can unfetter it.
It
is further urged that this society is contrary to the genius
of our free institutions--that its constitution enforces
perpetual service and adherence to a particular faith, and
that it is aristocratic in its tendency.
If
there were any thing in such objections, the constitution
answers them all. So far from being at all aristocratic,
this society is a pure democracy. All the officers are chosen
by ballot, every member, male and female, having an equal
voice; and the body of the society reserves to itself the
power of removing officers, and changing the form of government
at pleasure. All distinctions of rank or wealth are abolished,
and a perfect equality provided for. No single dogma in
religion or politics is announced, no unusual restraint
on marriage, nor subserviency to any doctrine out of the
common way, exist; and so far from any enforcement of perpetual
service being provided for, the right is reserved for every
member to retire from the society at pleasure, with the
single condition that no claim is to be set up for services
or property contributed. The powers which the society confides
to its officers are temporary, and so distributed as to
prevent any one member or officer from engrossing too much
power.
Besides
this liberal frame of government, the constitution, by very
full enactments, provides for the education of the children,
the comfort and support of all the members, and the peaceable
settlement of all controversies by domestic tribunals. It
is impossible to hold that such a constitution is contrary
to public policy, or in any sense illegal. To say that such
a society cannot exist under our form of government is a
libel on our free institutions.
Here
are a number of persons, who, in the exercise of their mature
judgment, and following their own peculiar views, have thought
it best, more than thirty years ago, to associate as one
family, in a communion of property. From that time to the
present, through an entire generation, their experiment
has been successful. They have lived in peace, plenty, and
happiness, beyond the common lot. The legislature has given
them a charter to perpetuate their social existence; and
now it is urged that, in this land of liberty, the right
does not exist to live in this way; a very bright idea,
truly! If a despot proclaimed such an edict, forbidding
men to pursue their own mode of life, in their own inoffensive
way, we could understand it; but it is quite new as a democratic
idea.*599
(Mr.
Stanberry then cited and examined the cases of Waite
v. Merrill et al. 4 Greenleaf, 102; Schriber v.
Rapp, 5 Watts, 351; Gass and Bonta v. Wilhite et
al. 2 Dana, 170. He then contended that this society was
protected by the doctrine of charities, and by its act of
incorporation.)
Mr.
Ewing's brief was as follows.
1st.
The executor or administrator of Goesele is not a party
to this suit; therefore no question as to personal property
can arise.
I now
state the proposition as applying to property purely personal,
but will, in the course of my argument, show that it controls
also the real estate owned by this association, to which
the law attributes the qualities and consequences of personalty.
2d.
This suit, therefore, involves nothing but title to real
estate, and the question is, did Goesele die seised of an
inheritable estate in the lands and tenements named in the
bill.
We
have the object and terms of the original purchase from
no other source than the answer of Bimeler. He says he purchased
it for the Separatist society, took a deed in his own name,
and gave his own bonds for the payment of the purchase-money.
P. 6.
And
it was purchased with the understanding at the time that
it should be paid for with the means and labor of those
of the Separatists who would settle upon it, and that each
should have thereof in proportion to the amount that he
or she should contribute to paying therefor. P. 14.
It
is obvious, at once, that here was yet no partnership. And
ther was yet no contract between Bimeler and either or all
of the other parties which equity could enforce.
No
one was yet bound to Bimeler, that he should go upon the
land or pay for any part of it; as a correlative proposition,
Bimeler was not bound to hold the land, or any part of it,
in trust for any of them. Both parties must be bound or
neither. Goesele, however, went on to the land, and built
a small log-house on a town lot in Zoar, previous to 1819.
Some conflict in the evidence about the building. He went
into a house.
He
was still under no contract to pay for any of the land.
He still had no right to any definite part or amount, on
making payment, unless it may have been the town lot on
which his house was built.
He
had yet paid nothing, applied nothing; had no contract which
equity could regard.
If,
the hour before the execution of the articles of April 5th,
1819, Goesele had claimed a definite portion of the land,
and offered to pay for it in proportion to the cost of the
whole, a court of equity could not have denied it to him.*600
If
Bimeler had declared that he would thenceforth hold the
land to his own use, and that his associates should have
none of it, equity could not have relieved them by decreeing
to them parts of the land. The law, however, would have
given them a quantum meruit for the labor which they
had performed.
Or,
if I be mistaken in this, and he had any interest in the
land which equity could recognize, it was held by such loose
and uncertain tenure, that he could abandon it by any word
or deed showing a purpose not to retain or rely upon it.
Goesele, therefore, was entitled to nothing, except what
the articles of brotherhood and association gave him.
The
genuineness of the articles is doubted, and we are called
upon for proof that Goesele signed them. We are content
that the court should regard them as not in evidence, and
especially that Goesele never signed them. If that be so,
we think it very clear that he never had any right whatever,
except to a compensation in money for his services, if he
rendered any, of value beyond his maintenance, nursing,
and burial. But this is a question which none but his administrator
is competent to litigate.
But
he had rights under those articles of association, and as
his counsel is probably not seriously disposed to repudiate
them, I will inquire what the rights were which were conferred
by them.
Waiving,
for the present, the question whether this was or was not
a charitable association, and, as such, protected by the
law of charities, I will examine it as a mere attempt to
dispose of property and give it direction.
I will
suppose Bimeler to have signed the articles, as he intended
to be bound by them, and would have signed them had the
land been paid for and his notes taken up, and he did sign
soon after this was done.
Then
if the articles were good to transfer real estate in equity,
they were good to transfer personalty, and equally good
to limit and direct the real estate transferred.
What
title to the real estate do these articles vest in Goesele?
it is to be borne in mind, that down to this time Bimeler
had the legal estate, and Goesele had no interest in it
which a court of equity could regard.
The
articles give to Goesele a right to live upon, and enjoy
a fair proportion of the land, during his life; to raise
and have his children educated and maintained upon it; to
take part, with others, under rules agreed upon between
themselves, in its management and control. These rights,
however, were conferred subject to conditions and forfeiture.
But
the conditions were complied with, namely, that he should
surrender whatsoever property he had, to the association,
*601 and live and labor with them during his life. He
did not incur a forfeiture; he had then purchased this right,
and he enjoyed it; he lived, died, and was buried in the
lands with his brethren in the faith.
Can
there be a doubt that all the parties were competent to
make this contract? But if there be a doubt, can a question
now arise as to their competency, since both parties kept
it, and executed it faithfully to the end?
No
complaint on either side, of wrong or violation, until the
contract, as far as Goesele was concerned, was completely
executed and ended.
But
if this contract could not be legally entered into by Goesele
with the other members, no valid contract whatever was entered
into by him or for him.
Bimeler
agreed to surrender this land to the association, to be
held in this manner, and on these conditions. He never did
agree, and never would have agreed, to surrender it to these
one hundred and fifty men and women as a partnership, subject
to the consequences of partnerships, dissolution by the
death or withdrawal of a member, and consequent partition,
at least three times a year, of land and personalty.
If
equity cannot sustain the contract which the parties did
make for themselves, it will not make a contract for them
which they never did make, and never intended to make, and
which would defeat all their objects.
But
it will carry out the contract according to their intent,
as far forth as the principles of law will permit. This
will readily and without a single difficulty, that I can
discover, dispose of Goesele's interest, and consequently
of this case.
Goesele
might, without the violation of any rule of law, give his
labor and property, if he had any, in consideration of the
provision for life herein made for him.
Bimeler
might, in like manner, bind his land in equity to make good
such provision.
3d.
But I do not, for myself, perceive any serious difficulty
in transmitting the property, with the personalty and the
equitable title to the realty, in the manner adopted by
these articles.
Cannot
a man transfer the equitable title to his real estate to
ten men, designated as those who live on it and have signed
the article of transfer with him, to be used and enjoyed
by them as long as they shall abide by the terms of the
article, and giving a right to the persons, to whom he so
transfers, to vest the same right in others, in succession,
who shall enter into the same article in future, and comply
with its conditions, the majority having, as in this case,
the power to sell and dispose *602 of the property,
but required to apply the proceeds to the same object?
This
is not a perpetuity in the common-law sense of the term;
it does not tie up real estate, for it may be disposed of
at any time. Such a limitation of the real estate, or its
proceeds, would be good, by the laws of Ohio, for the lives
in being; and each tenant for life, by his own signature,
if the full estate at any time vested in him or them, could
equally well transmit it to another life, and so in succession,
a majority being at all times able to terminate the succession
at pleasure.
4th.
But if I be wrong in this, and difficulty arise as to the
final disposition of the property, when the end cometh,
which is not yet, that difficulty is removed by the law
of charitable uses, considered in Mr. Stanberry's brief.
5th.
And if this be not a charity, and as such protected by equity,
and if the contract made by the parties for themselves be
invalid for the purposes intended, it is still good as a
partnership with succession, by the express agreement of
the parties, an agreement, so far, unobjectionable. All
the property owned in common, real as well as personal,
is necessary to carry on the partnership; it is, therefore,
all personalty in equity. And the partners, or a majority
of them, can readopt their rules or change them at pleasure,
and transmit their property by succession as heretofore,
or divide between the partners.
6th.
But if it were indeed a partnership, we have not the necessary
parties in court. The property is all personalty, and neither
executor nor administrator of Goesele is in court.
Mr.
Justice McLEAN delivered the opinion of the court.
This
case comes before the court on an appeal from the Circuit
Court of the District of Chio.
In
their bill the complainants represent that they are the
heirs at law of Johannes Goesele, who died at Zoar, in the
county of Tuscarawas, Ohio, in the year 1827; that the said
Johannes, in his lifetime, associated himself with the defendants,
Bimeler and others, and formed a society of Separatists,
and in the year 1817 they purchased of one Godfrey Haga,
of Philadelphia, a tract of land situated in said county,
containing 5,500 acres; that afterwards other purchases
were made, which, when added to the first purchase, amounting
to 10,000 acres, with a large number of town lots, and other
property procured about the same time; that these purchases
were made on behalf of Goesele, deceased, and his associates,
and for their use, and the purchase-money was paid by their
joint labor and money; that Bimeler acted fraudulently as
their agent, in taking the deed and title papers to himself
and his heirs forever.
*603
They further represent that many of his associates sold
their interest to their ancestor, on leaving the society.
And the defendants allege, that, as heirs of their ancestor,
they are entitled to one hundredth portion of the estate
now held by Bimeler; and that they have requested the defendants
to make partition of the estate, which has been refused;
that Bimeler, although often requested, has refused to convey
to the complainants any part of the estate; and they pray
that he may be compelled to give a full and true description
of the property held by him as stated; and that on a final
hearing he may be decreed to make partition of the said
property, and to make a good deed in fee- simple to the
complainants, for so much of the said property as may be
found to belong to them.
In
the year 1817, the members of the above association emigrated
from Germany to the United States. They came from the Kingdom
of Wertemberg, where they had been known for years as a
religious society called Separatists. They were much persecuted
on account of their religion. Goesele, the ancestor of the
complainants, with another member, had been imprisoned for
nine years; and the safety of Bimeler depended on his frequent
changes of residence, and living in the utmost privacy.
In that country they sought to establish themselves by purchasing
land, but they found that the laws would not allow them
this privilege. Disheartened by persecution and injustice,
they came to this country in pursuit of civil and religious
liberty. When they arrived at Philadelphia, they were in
a destitute condition. They were supported while in that
city, and enabled to travel to the place where they now
live, by the charities of the Friend Quakers of Philadelphia
and of the city of London. These contributions amounted
to eighteen dollars to each person. A large majority of
the society consisted of women and children.
While
at Philadelphia, Bimeler, the head and principal man of
the association, purchased, in his own name, from Godfrey
Haga, the five thousand five hundred acres of land, as stated
in the bill. A credit of thirteen years was given, three
years without interest. A deed to Bimeler and his heirs
was executed for the land, the 7th of May, 1818; a mortgage
to secure the consideration of $15,000 was executed. On
their arrival at the place of their destination, they found
it an unbroken forest; their means were exhausted, and they
had no other dependence than the labor of their hands. They
were no strangers to a rigid economy, and they were industrious
from principle.
At
the time of their settlement at Zoar, they did not contemplate
a community of property. On the 15th of April, 1819, articles
of association were drawn up and signed by the *604
members of the society, consisting of fifty-three males
and one hundred and four females. In the preamble they say,
'that the members of the society have, in a spirit of Christian
love, agreed to unite in a communion of property, according
to the rules and regulations specified.' The members renounce
all individual ownership of property, present or future,
real or personal, and transfer the same to three directors,
elected by themselves annually; that they shall conduct
the business of the society, take possession of all its
property, and account to the society for all their transactions.
Members who leave the society are to receive no compensation
for their labor or property contributed, unless an allowance
be made them by a majority of the society.
These
articles continued in force until the 18th of March, 1824,
when amendatory articles were drawn up and signed by the
members at that time, consisting of sixty males and one
hundred females. In these articles an entire union of property
is declared, and a renunciation of individual ownership.
Males of the age of twenty-one, and females of the age of
eighteen, become members by signing the articles. New members
are received in this way. The directors elected by the society
conduct the affairs of the association, and provide for
the boarding, lodging, and clothing of the members. The
directors are to apply themselves for the common benefit
of the society, provide for the children, determine disputes
among the members, with a right of appeal to the board of
arbitration. Other provisions were made for the expulsion
of members, and the general good order and welfare of the
society.
In
the year 1832, the society was incorporated by a law of
the State, which gave to them the ordinary powers of a corporation.
On the 14th of May, 1833, a constitution was adopted under
the act, which was signed by fifty-one males and one hundred
and three females. The constitution embodies substantially
the regulations contained in the preceding articles, and
some others conformably with the corporate powers conferred.
This
is the outline of the association formed at Zoar. It appears
a different plan was at first adopted. Each family was to
select from the general tract as many acres as it could
pay for, and improve it, living on its own industry, and
from the same source paying for the land. But this plan
was found impracticable, and in less than two years it was
abandoned, and the first articles of association were adopted.
The
ancestor of the complainant, as stated, died in 1827, a
member of the society. His name was signed to the articles
of 1819 and 1824. There was no evidence in the case conducing
to prove any contract, except that which arises from the
articles *605 referred to. On the first payment made
for the land, it appeared that Goesele paid a small sum
that remained unexpended of the eighteen dollars he received
at Philadelphia.
The
answer denies the allegations of the bill charging fraud,
and every allegation to charge the defendants, except the
purchase of the land and the articles referred to.
It
appears, by great industry, economy, good management, and
energy, the settlement at Zoar has prospered more than any
part of the surrounding country. It surpasses, probably,
all other neighborhoods in the State in the neatness and
productiveness of its agriculture, in the mechanic arts,
and in manufacturing by machinery. The value of the property
is now estimated by complainant's counsel to be more than
a million of dollars. This is a most extraordinary advance
by the labor of that community, about two thirds of which
consists of females.
In
view of the facts stated, it is not perceived how the case
made in the bill can be sustained. A partition is prayed
for; but there is no evidence on which such a right can
be founded. The plan, as stated, first agreed upon at Zoar,
for individual proprietorship and labor, was abandoned in
less than two years. It was a parol contract, no consideration
being paid. No right was acquired by the ancestor of the
complainant on this ground. He then signed the first articles,
which, like the amended articles, renounced individual ownership
of property, and an agreement was made to labor for the
community, in common with others, for their comfortable
maintenance. All individual right of property became merged
in the general right of the association. He had no individual
right, and could transmit none to his heirs. It is strange
that the complainants should ask a partition through their
ancestor, when, by the terms of his contract, he could have
no divisible interest. They who now enjoy the property,
enjoy it under his express contract.
But
if there were a right of partition by the complainants,
there is no such statement in the bill as would authorize
the court to decree it. For the time that Goesele lived,
what was the value of his labor in comparison with the labor
of the others? Twenty-five years have elapsed since his
death. The property has increased in value seven hundred
per cent.; and of this property partition is prayed. But
there is not a shadow of evidence to sustain the right.
The proofs and the statements in the bill are as remote
and inconsistent as can well be conceived.
The
fraud charged on Bimeler, in the purchase of the land, if
true, could not help the case made in the bill. But the
charge has no foundation. Bimeler purchased the land in
his own *606 name, and became responsible for the
payment of the consideration. And he ratained the title
until the purchase- money was paid, and an act of incorporation
was obtained, when he signed the articles, and placed the
property under the control of the society, he having no
greater interest in it than any other individual. But, before
this, he openly declared that he held the land in trust
for the society. As an honest man, he could not change,
if in his power, the relation he bore to the vendor, until
the consideration was paid. In this matter, the conduct
of Bimeler is not only not fraudulent, but it was above
reproach. It was wise and most judicious to secure the best
interests of the association.
The
articles of 1819 and 1824 are objected to as not constituting
a contract which a court of equity would enforce. And it
is said that chancery will not enforce a forfeiture. As
a general rule, chancery may not enforce a forfeiture; but
will it relieve an individual from his contract, entered
into fairly, and for a valuable consideration? What is there
in either of these articles that is contrary to good morals,
or that is opposed to the policy of the laws? An association
of individuals is formed under a religious influence, who
are in a destitute condition, having little to rely on for
their support but their industry; and they agree to labor
in common for the good of the society, and a comfortable
maintenance for each individual; and whatever shall be acquired
beyond this shall go to the common stock. This contract
provides for every mamber of the community, in sickness
and in health, and under whatsoever misfortune may occur.
And this is equal to the independence and comforts ordinarily
enjoyed.
The
ancestor of the complainants entered into the contract fairly
and with a full understanding of its conditions. The consideration
of his comfortable maintenance, under all circumstances,
was deemed by him an adequate compensation for his labor
and property contributed to the common stock. But it is
not shown that Goesele or any other member contributed to
the general fund, with the exception of a small sum by Goesele,
which, probably, could not have exceeded five dollars. The
members of the association were poor, and were unable to
contribute any thing but labor. In this way the land purchased
by Bimeler was paid for.
The
complainants speak of the interest of their ancestor in
the real and personal estate, owned by the association,
and their counsed contend that the articles did not divest
him of either, but both descended to his heirs at law at
his death.
This
argument does not seem to comprehend the principles of the
association. Land and other property were to be *607
acquired by the members, but they were not to be vested
with the fee of the land. While they remained in the society,
under its general regulations, the products of their labor
on the land and otherwise were applied, so far as necessary,
to their support. Beyond this, they were to have no interest
in the land or in the personal property. Many of the members
were aged females, others, from sickness or disease, were
unable to labor, but every one, whether able to labor or
not, was provided for by the labor of the community. This
was a benevolent scheme, and from its character might be
properly denominated a charity. But from the nature of the
association and the object to be attained, it is clear the
individual members could have no rights to the property,
except its use, under the restrictions imposed by the articles.
The whole policy of the association was founded on a principle
which excluded individual ownership. Such an ownership would
defeat the great object in view, by necessarily giving to
the association a temporary character. If the interests
of its members could be transferred, or pass by descent,
the maintenance of the community would be impossible. In
the natural course of things the ownership of the property
in a few years, by transfer and descent, would pass out
of the community into the hands of strangers, and thereby
defeat the object in view.
By
disclaiming all individual ownership of the property acquired
by their labor, for the benefits secured by the articles,
the members give durability to the fund accumulated, and
to the benevolent purposes to which it is applied. No legal
objection is perceived to such a partnership. If members
separate themselves from the society their interest in the
property ceases, and new members that may be admitted, under
the articles, enjoy the advantages common to all.
The
counsel for the complainants imagine the original members
possessed property, real and personal, before they entered
into the association, which is contrary to the facts of
the case, and then contend that, having executed no conveyance
of the property, on the death of the member it descended
to his heirs at law.
It
is always desirable that legal principles should be applied
to the facts of the case. When the members first formed
the association they were destitute of property. The purchase
of the land by Bimeler had been made, but not paid for;
and the members had no means of payment but by the labor
of their hands. This they agreed to give, in consideration
of being supported in sickness and in health, disclaiming,
at the same time, any individual claim of ownership to any
property which should be acquired by the community. This
statement of facts *608 obviates many of the objections
urged by complainants' counsel. If the members of the association
had no interest in the land when they signed the articles,
no conveyance of it by them was necessary. They stipulated
a compensation for their future labor in the support to
be given them, and disclaimed the ownership of all property
acquired.
It
is said, where a member is excommunicated or leaves the
society he forfeits his rights, and that chancery will not
enforce a forfeiture. What is the extent of this forfeiture?
It is the right to a support from the society. And this
is certainly reasonable. Can a member expect to be supported
by the society, when he refuses to perform his part of the
contract which entitles him to a support? He claims pay
for his labor. He has been paid for this, in pursuance of
his own contract. In sickness and in health he has been
clothed and fed, and a home provided for him. But he claims
payment for property which he surrendered to the association
at the time he became a member of it, by signing the articles.
The ownership of this property he relinquished to his associates
as a part of the contract; and for the considerations named,
all the demands for such property in the language of the
articles signed, 'the individual abolished and abrogated
for himself and his heirs.'
Can
property thus conveyed be deemed forfeited, if not recoverable?
A forfeiture is against the will of the owner. Where property
is conveyed under a fair contract and for a valuable consideration,
is not the term forfeited misapplied, if such conveyance
be held valid? Chancery is not asked to enforce a forfeiture
in this case. No property is shown to have been transferred
to the association by the ancestor of the complainants.
But if property had been given by the ancestor, would a
court of chancery direct such property to be surrendered
or paid for against the express contract of the owner? The
surrender or giving up of the property was a part of the
consideration on which the association stipulated to support
him. It cannot be separated from that agreement. And it
is clear, where the fault of not carrying out the contract
is not attributable to the association, but to the member,
he cannot have the aid of a court of chancery.
Do
the articles constitute a perpetuity? We all think that
they do not. They provide for the continuance of the association
an indefinite period of time, in the exercise of the discretion
of its members. But there is no obligation to this extent.
The majority of the members may require a sale of the property
and break up the association. In fact the majority governs,
by the election of officers. Members may be expelled from
the society and new ones admitted, under established rules.
Whilst *609 the society has the means of perpetuating
its existence, it may be said to depend for its continuance,
on the will of a majority of its members.
As
the law now stands in England, a conveyance by executory
devises, to be good, cannot extend beyond a life or lives
in being, and twenty-one years and the fraction of another
year, to reach the case of a posthumous child. Atkinson
v. Hutchinson, 3 P. Wms. 258; Long v. Blackall,
7 Term, R. 100.
There
are many depositions in the case, taken in behalf of the
complainants, by persons who have been expelled from the
society, or, having left it, show a strong hostility to
Bimeler. They represent his conduct as tyrannical and oppressive
to the members of the association, and as controlling its
actions absolutely. And several instances are given to impeach
his moral character and his integrity. Two of the witnesses
say that he drives a splendid carriage and horses.
In
regard to the carriage, it is proved to be a very ordinary
one, worth about three hundred dollars, one of his horses
worth about twenty dollars and the other thirty forty. By
respectable persons out of the society, Bimeler's character
is sustained for integrity and morality, and several instances
are given where, even in small matters, he deferred to the
decision of the trustees against his own inclination. And
many facts are proved wholly inconsistent with the charge
of oppression.
That
Bimeler is a man of great energy and of high capacity for
business, cannot be doubted. The present prosperity of Zoar
is evidence of this. There are few men to be found any where,
who, under similar circumstances, would have been equally
successful. The people of his charge are proved to be moral
and religious. It is said that, although the society has
lived at Zoar for more than thirty years, no criminal prosecution
has been instituted against any one of its members. The
most respectable men who live near the village say, that
the industry and enterprise of the people of Zoar have advanced
property in the vicinity ten per cent.
Bimeler
has a difficult part to act. As the head and leader of the
society, his conduct is narrowly watched, and often misconstrued.
Narrow minds, in such an association, will be influenced
by petty jealousies and unjust surmises. To insure success
these must be overcome or disregarded. The most exemplary
conduct and conscientious discharge of duty may not protect
an individual from censure. On a full view of the evidence
we are convinced that, by a part of the witnesses, great
injustice is done to the character of Bimeler. On a deliberate
consideration of all the facts in the case, we think there
is no ground to authorize the relief prayed for by the
*610 complainants. The decree of the Circuit Court is
therefore affirmed.
Order.
This
cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District
of Ohio, and was argued by counsel. On consideration whereof
it is now here ordered, adjudged, and decreed by this court,
that the decree of the said Circuit Court in this cause
be, and the same is hereby, affirmed with costs.
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