BANCROFT LIBRARY THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA Digitized by tine Internet Arciiive in 2007 witii funding from IVIicrosoft Corporation littp://www.arcliive.org/details/decisionofjolinfpOOpliilricli IN THE CiRCUIT COURT OF THE UNITED STATES FOR THE Western Division of the Western District of Missouri u' DECISION ^^^ of JOHN F. PHILIPS, JUDGE in Temple Lot Case I fhe Reorganized Church of Jesus Christ t)f Latter Day Saints VERSUS THE CHURCH OF CHRIST. ET AL. LAMONI, IOWA PUBUSHED BY THE REORGANIZED CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS History of Suit On the 22d day of December, 1832, the Original Church of the Latter Day Saints through its Presid- ing Bishop, Edward Partridge, purchased for church building purposes the plat of ground located in Jack- son County, Missouri, particularly described in this case, and set the same apart for church uses, desig- nating it the "Temple Lot." The following year troubles arose between these people and other citizens of Jackson and adjoining counties on account of— First, differences in religious opinions; Second, differences upon political questions; the Latter Day Saints at that time being almost wholly from the Middle and New England States and not in sympathy with slavery. As a result of these differences the Saints were forcibly driven from the county and their property wrested from them, and later they were driven from the State and openly denied and refused protection of their rights and property by the Governor of the State. The church upon this occasion took refuge in an adjoining State, but continued to assert its claims to the property in question without protest or dis- sension in the body until the death of its President and one of the two leading counselors, June 27, 1844. The violent death of these principal officers brought about by the intrigue and work of their old enemies in Missouri proved to be a decisive event in the churches history. Many claimants for place and power arose, calling upon the smitten flock to follow in as many ways and directions. Of 4 HISTORY OF SUIT the various divisions and bodies which started up during this chaos, all claimed, in one form or an- other, succession to the Original Church, and ad- hered to a belief in the public setting apart under divine direction, for church uses, of this property in controversy ; and that in a proper time a temple should be built thereon for public worship. After the expulsion of the church from Missouri, in 1839, attempts were made by parties living at Independ- ence, Missouri, to acquire title to -this property for speculative purposes; and to further this a paper purporting to be a deed from part. of the heirs at law of Edward Partridge was obtained by James Poole, of Independence, Missouri, and Defendants have claimed this as color of right, with mesne con- veyances, to show title by adverse possession of premises. The immediate parties to this action, the Com- plainant, the Reorganized Church of Jesus Christ of Latter Day Saints, presided over by Joseph Smith, son of the founder of the church, and the Defendants, the "Church of Christ," or Hedrickite body, and others at Independence have for several years been in antagonism as to the question of own- ership, which culminated on the 11th day of June, 1887, in the Reorganized Church giving the Defend- ants written notice to remove and quit possession of the premises and not to erect any buildings or make any other improvement. The Defendants re- fused to surrender the possession and the Reorgan- ized Church was left to a choice of two things; viz, to submit to a deliberate and cunning alienation of HISTORY OF SUIT 5 its property, or appeal to the high Courts of Equity of the country for a fair hearing and adjudication of the respective claims. It chose the latter course, and in August, 1890, filed Complaint in equity set- ting out its claims as the only true and legal suc- cession to the Original Church of the Latter Day Saints and right to the Temple Lot property. The Defendants were directly aided and supported in the suit by the factional church in Utah which fol- lowed the leadership of Brigham Young during the schismatic disruption; the President of that body, Wilford Woodruff, and the President of its Quorum of Twelve, Lorenzo Snow, and other leading men and women voluntarily becoming witnesses for the Defendants; and many other witnesses answering to the personal summons of Mr. Woodruff came from different parts of the Territory to testify in behalf of the Defendants. The result of the contest is the clear and masterly opinion of Judge Philips, an official copy of which is hereinafter set forth, declaring Complainant in legal succession and confirming its title to the prop- erty. Attorneys and Counsel for the Complainant : — P. P. Kelley, Glenwood, Iowa. L. Traber, Kansas City, Missouri. George Edmunds, Carthage, Illinois. Smith McPherson, Red Oak, Iowa. E. L. Kelley, Lamoni, Iowa. Respondent's Attorneys and Counsel : — J. N. Southern, Independence, Missouri. W. O. Broadhead, Saint Louis, Missouri. Lamoni, Iowa, March 20, 1894. IN THE CIRCUIT COURT OF THE UNITED STATES, FOR THE Western Division of tiie WESTERN DISTRICT OF MISSOURI, The Reorganized Church of Jesus Christ of Latter Day Saints, vs. The Church of Christ, et al. STATEMENT OF CASE. This is a bill in equity to declare a trust in favor of the Complainant, a religious body, as to certain real estate, situated at Independence, County of Jackson, State of Missouri, known as the "Temple Lot." The controversy is between the two divisions of what is popularly known as the "Mormon Church." The lot in controversy was bought in 1832 by one Partridge, Bishop of the then Church of Jesus Christ of Latter Day Saints, with its central organization at Kirtland, Ohio, with funds furnished by said STATEMENT OF CASE 7 church for such purpose. In the view of the church this spot was to be the future site on which was to be erected the great Temple of the Church, and was to be to it the New Jerusalem. In 1839 said Partridge made the following deed, declaratory of said trust : KNOW ALL MEN, that whereas there was money put in my hands to wit, in the hands of Edward Partridge, by Oliver Cowdery, an elder in the Church of Jesus Christ of Latter Day Saints, formerly of Kirtland, State of Ohio, for the purpose of entering lands in the State of Missouri, in the name of, and for the benefit of said church; and whereas I, Edward Partridge, was Bishop of, and in said church he took said money and funds thus put in his hands and entered the land in his own name, in the County of Jackson, State of Missouri, in the name of Edward Partridge, the signer of this deed. Now know ye for the furthering the ends of justice, and as I have to leave the State of Missouri, by order of Governor Boggs, and with me also our Church, I do, for the sum of one thousand dollars, to me in hand paid, by said Oliver Cowdery, do give, grant, bargain and sell to John Cowdery, son of Oliver Cowdery, now seven years old; and Jane Cowdery, three years, and Joseph Smith Cowdery, one year old, all the lands entered in my name in the County of Jackson, in the District of Lexington, in the State of Missouri. Said Edward Partridge the first party and signer of this, deed does also sell, alien and confirm to the aforesaid John Cowdery all real estate and lands he hath both entered as aforesaid, and all he owns in his own name by private purchase and holds by deed of gift, being intended for the use of the Church of Latter Day Saints or otherwise. This sale is to embrace all lots of all sizes, situated in Independence, and to embrace the lot known as the Temple Lot, and all other lands of whatever description said Partridge the first party is entitled to in said Jackson County, in the State of 8 REORGANIZED CHURCH VS. Missouri. Said Partridge also agrees to amend this deed to said Oliver Cowdery at any time for the purposes aforesaid. Given under my hand and seal on the date above written. Edward Partridge, (Seal.) E. G. Gates, Witness. State of Misspuri, ) Caldwell County, f ^^• Be it remembered that on the 25th day of March, 1839, before me, the undersigned, one of the Justices of the County Court in and for said County, came Edward Partridge, who is personally known to me, to be the same person whose name is subscribed to the foregoing instrument of writing a*s party thereto, and did acknowledge the same to be his act and deed for the purposes therein mentioned. • In testimony whereof I have hereunto set my hand and affixed my private seal orf the day and year above written. Elias Higbee, J. C. C. C. The foregoing deed, with the acknowledgment thereon from Edward Partridge to Jane Cowdery et al., was filed and duly recorded in my office on the 7th day of February, A. D. 1870. A. COMINGO, Recorder. By H. G. Goodman, Deputy. Partridge left the State about that time and died in 1841. One Poole, who lived at Independence, Mis- souri, in 1848 hunted up the heirs, five in number, of said Partridge, in the State of Iowa, and obtained from three of them a purported deed (acknowledged in Missouri) to the sixty-three acres of land at Independence, so deeded by said Partridge to Oliver Cowdery, including the Temple Lot, which lot con- tains about two and one half acres. The said trust deed from Partridge was not put on record in said Jackson County, Missouri, until CHURCH OF CHRIST, ET AL. 9 1870. other mesne conveyances of this property was made under the Poole deed. The lot in question remained vacant and unoccu- pied until 1882, when the Respondent Church took possession of it, claiming title thereto under deeds made to one Hedrick in trust for the Respondent Church and by adverse possession. This action was brought within ten years after Respondent took pos- session of the property. The evidence in the case tends to show that the said grantees under the Partridge deed died during their minority, and that one Marie Louise Johnson is the sole surviving sister and heir of said Cow- dery children. On the 9th day of June, 1887, she and her husband, Charles Johnson, executed and delivered a deed of quit claim to said lot to George A. Blakeslee, Bishop of the Complainant Church, in trust for the benefit of said church ; which deed was duly acknowledged on the 9th day of June, 1887, and filed for record on the 10th day of June, 1887, in the Recorder's office of Jackson County, Missouri. The Complainant Church was thereafter duly in- corporated under the laws of the State of Iowa. The other important facts of the case will sufficiently appear from the Opinion herein. 10 REORGANIZED CHURCH VS. OPINION. PHILIPS, JUDGE. I. Question is made, at the threshold of this case, as to the power of the complaining corporation to maintain this suit. The broad proposition is as- serted that a foreign corporation has no right, under the laws of Missouri, to hold or own real estate in the State. Under the statutes of Iowa, where Com- plainant was incorporated, most liberal and plenary provisions are made for the incorporation of all manner of beneficent, charitable, and religious as- sociations. (Chap. 2, title 9, p. 275, Iowa Statutes.) Section 1095 provides that **Any three or more per- sons of full age, citizens of the United States, a majority of whom shall be citizens of this State, who desire to associate themselves for benevolent, charitable, religious, or missionary purposes, may make, sign, and acknowledge before" a prescribed officer, ''and have recorded in the office of the re- corder of the county in which the business of such society is to be conducted, a certificate in writing," etc., "in which shall be stated the name or title by which such society shall be known, the particular business and objects of such society, the number of trustees, directors, etc." Section 1096 declares that upon the filing for record such certificate, the persons so signing and their associates and successors "shall, by virtue hereof, be a body politic and corporate . . . and by that [name], they and their successors shall and - CHURCH OF CHRIST, ET AL. 11 may have succession, and shall be persons capabk of suing and being sued, and may have and use a common seal," etc. ; "and they and their successors, by their corporate name, shall be capable of taking, receiving, purchasing, and holding real and per- sonal estate." Section 1097 provides that such religious associa- tions may nominate and appoint such trustees, di- rectors, or managers for the corporation, **accord- ing to usages of the appointing body," etc. Section 1101 declares that, "Any corporation formed under this chapter shall be capable of tak- ing, holding, or receiving property by virtue of any devise or bequest contained in any last will or testa- ment." And the only limitation imposed by this statute upon the power of such corporation to take and hold property, is contained in the last clause of the last named section, which declares that "no person leaving a wife, child, or parent, shall devise or bequeath . . . more than one fourth of his estate after the payment of his debts." Section 1102 declares that the trustees, etc., of existing religious corporations may by conforming to the requirements of said section 1095 "re-incor- porate themselves, or continue their existing cor- porate powers, and all the property and effects of such existing corporation shall vest in and belong to the corporation so re-incorporated or continued." This association was incorporated in conformity to this statute. But it is insisted by Respondents that the mere incorporation of the religious associa- tion did not have the effect, ipso facto, to vest the 12 REORGANIZED CHURCH VS. property of the church in the corporation, so as to authorize the legal entity to sue therefor. The case of Catholic Church vs. Tobein, 82 Mo. 418 is relied on. Tobein by his will devised the property *'to the Catholic Church at the City of Lexington, Missouri." Afterward said church was incorporated under the General Statutes. It was held that as the devise was to the church and took effect before the act of incorporation, the mere fact of an incorporation by that name, without more, did not have the effect to transfer to the corporation the property devised to the church, as such, any more than if the incorpo- rators had taken some other name; citing the case of Frank vs. Drenkham, 76 Mo. 508, as ''directly in point." In the latter case the conveyance was to a number of individuals, directors of a voluntary joint stock association "and their successors in office in special trust for the use of the shareholders in said company." Afterward the members of said com- pany were incorporated by act of the Legislature under the name of the **St. Louis and Birmingham Iron Company." Under judgment obtained against the corporation this property was sold, and eject- ment was brought predicated on the Sheriff's deed. The Court held that as no transfer was shown from the grantees in the deed, or from the shareholders in the joint stock company to the corporation, there was nothing to show succession of right in the cor- poration to the property. But the case here is es- sentially different. The theory of the Complainant is that this prop- erty was acquired originally with church funds, and , CHURCH OF CHRIST, ET AL. 13 was and is held in trust for the use of the Church of Jesus Christ of Latter Day Saints, which later took the name of the ''Reorganized Church of Jesus Christ of Latter Day Saints." This church, accord- ing to its ecclesiastical polity rules and system of government, at its annual General Conference, April 6, 1891, directed and authorized the Articles of As- sociation and Incorporation. This conference rep- resented the ecclesiastical body in its entirety. And as stated in the deposition of Bishop Kelley, "the church of Lamoni [Iowa] effected the Articles of incorporation because that is the central church, and all others are simply branches of that church. . . . It is the headquarters; . . . the principal place of business; and was made the principal place of business by the common consent of the body, which is the rule of action of the body." The Articles of Association were presented to, voted on, and adopted, by the authorized delegates of the church. By the sixth article of which it is pro- vided that "All property now held or owned by said church, in the name of any person or persons, as trustees or otherwise, including the publication establishment of said church, shall vest in said cor- poration. And all persons holding such property in trust for said church are hereby directed and re- quired to transfer and convey the same to said cor- poration, as the property of said church. And said corporation shall by operation of law succeed to all property now owned by said church or held for its use; and may sue for and recover the same in the name of said corporation." 14 REORGANIZED CHURCH VS, This was the act of transfer of the equitable in- terest of the members of the church association — the beneficiaries of the trust estate — ^to the cor- poration. Such religious bodies are sui generis; and this was the only method by which this equity could be conferred upon the incorporators, by ar- ticles in writing, duly adopted and attested at its church meeting. This equity being held by the in- corporators, it certainly was competent for them, in adopting the Articles of Incorporation, to provide and declare, as they did in the sixth article thereof, that the property held or owned by the church in the name of any person or persons, as trustees, or otherwise, should vest in said corporation. II. I understand the law of comity to be well estab- lished that a corporation of one State, if not for- bidden by its charter, may exert its powers in any other State of the Union so as to take and hold real estate therein, unless interdicted by the positive law or declared policy of such other State. Wright vs. Lee, 51 N. W. Rep. 706; same case, 55 N. W. Rep. 931; Barnes vs. Suddard, 117 111. 227. This question was fully considered and settled in the case of American and Foreign Union vs. Yount, 101 U. S. 352; see also Lancaster vs. Amsterdam Imp. Co., (N. Y. Court of Ap.,) 35 N. E. Rep. 964. The Respondents invoke Section 8, Article 2 of the State Constitution of Missouri for the position that a foreign corporation has no right to hold, or CHURCH OF CHRIST, ET AL. 15 own, lands in this State. Said Section is as follows : That no religious corporation can be established in this State, except such as may be created under a general law, for the purpose only of holding the title to such real est^ite as may be prescribed by law for. church edifices, parsonages and cemeteries. This is not inhibitory of the existence of reli- gious corporations in the State, nor is it a denial of their right to hold real estate. It simply limits their creation to ''a general law" conformably with another specific provision of the Constitution pro- hibiting special legislation, and restricts such cor- porations to the purpose of holding title to real es- tate for church edifices, parsonages and cemeteries. Its purpose was and is to prevent the incorporation of such bodies for the purpose of acquiring real estate for other purposes or use than the reasonable requirements for the prescribed purposes. The fact that the Legislature of the State has not prescribed the maximum limit of the quantity of real estate to be held by such corporations gives no color to the contention that the State has refused to recognize the right of foreign religious corpora- tions to hold property or transact business within the limits of the State. Cowell vs. Springs, 100 U. S. 59-60; Stephens vs, Pratt, 101 111. 206; Thomp- son vs. Waters, 25 Mich. 224; Merrick vs. Van Santvoordt, 34, N. Y. 221. But the State statute (Art. 10 G. S. 1889) au- thorizes the incorporation of such religious bodies or associations, and in a spirit of marked public liberality. Sec. 2825, provides that "Any associa- 16 REORGANIZED CHURCH VS. tion, congregation, society, or church organization, formed for religious purposes, and any association formed to provide or maintain a cemetery, . . . and in general any association, society, company, or organization which tends to the public advantage in relation to any or several of the objects above enumerated, and whatever is incident to such ob- jects, may be created a body corporate and politic by complying with sections 2821 and 2822.'' Section 2828 declares : Corporations may be formed, under the provisions of this article, to execute any trust, the purpose whereof is within the purview of this article, and may receive and take, by deed or devise, in their corporate capacity, any property real and personal, for the use and purposes of such trust, and execute the trust so created. Section 282-3 provides that, "any corporation, the purposes whereof are included in section 2825 hereof, may acquire and hold in its own name such real estate and buildings as may be necessary for assembly, library, laboratory, and other rooms req- uisite for its purposes, and may receive income from such other rooms as may be requisite to the complete- ness of such buildings; but such income shall be applied to the purpose of such corporation as defined in section 2825." And section 2835 makes specific provisions for a proceeding by quo warranto for in- quiring into any misuser of the franchise of such corporation. The property in question was originally acquired by an agent of this church for the purpose of erect- ing thereon a temple designed to be the New Jeru- CHURCH OF CHRIST, ET AL, 17 salem of this religious order, from which the eyes and yearning desires of this people, through sixty years of exile and wandering, have never been turned nor diverted. To them it has been as the New Jerusalem to the Israelite and as Mecca to the Moslem. For sixty-two years it has been known to this sect and the people of Western Missouri as the 'Temple Lot," on which, in the fullness of time and the fulfillment of prophecy, was to be erected a splen- did temple for the gathering of the believers for re- ligious worship and exaltation. Whether the two and a half acres contained in this lot be more than is necessary for the erection of such temple, is a question the court would not undertake to determine in this collateral proceeding. Such question belongs to the State. Lancaster vs. Amsterdam Imp. Co. supra; R. R. Co. vs, Lewis, 53 Iowa 101-113; National Bank vs. Mathews, 98 U. S. 621 ; Chambers vs. St. Louis, 29 Mo. 576 ; Land vs, Coffman, 50 Mo. 252; Cowell vs. Springs Co., 100 U. S. 56; Jones vs. Habersham, 2 Sup. Ct. Rep. 336. "The acts of a foreign corporation which has *iot complied with the requirements of the Constitution and laws of the State in relation to such corpora- tions transacting business, owing and disposing of property, . . . are not void and unenf orcible ; and said foreign corporation can only in a direct pro- ceeding by the State be prevented from exercising its franchise within the State until it has complied with the Constitution and the laws." Wright vs. Lee, 51 N. W. Rep. 706; and in the same case 55 18 REORGANIZED CHURCH VS. N. W. Rep. 931, the Supreme Court of Dakota holds that "Although transacting business in this State by such noncomplying foreign corporation is a usur- pation of power by such corporation, with the State rests the right to elect whether it will acquiesce in such usurpation, or dispute and prevent it." III. Was this property in its acquisition impressed with a trust in favor of said church? As both par- ties claim under Edward Partridge, both are pre- cluded from invoking any other source of title, and it is only necessary to inquire into the character of his tenure. Although the deed of Partridge did not on its face express any trust estate, the legal title may be impressed with a use for a third person by evidence aliunde. That he bought this property with funds contributed by the members of the church, and held the title in recognition of the trust, is too clear to my mind to admit of debate. In the first place its acquisition by him was in fulfillment of the re- vealed will of God, as accepted by him as a member of the church, in the Book of Doctrine and Cove- nants. He was a Bishop of the central church then at Kirtland, Ohio. As such he looked after its tem- poralities. After such a lapse of time it may \)e difficult to find this and that witness to testify to placing so much money in his hands. But the sub- stantive facts appear in this case in persuasive clear- ness. The stress of thia religious sect's environ- CHURCH OF CHRIST, ET AL. 19 ments rendered it expedient that they should seek asylum in the then remote West, where, as they sup- posed, unvexed by those who despitefully used them, they might tabernacle in peace. Witnesses testify to the fact of making contribution to this fund, and to the common notoriety of raising the money for this purpose. It was discussed in the public as- semblies, and report was made to the church show- ing that $3,000 had been raised for this purpose. And Bishop Partridge came to Independence, Mis- souri, to acquire lands for the Temple, and settle- ment of the people of his religion. From the day of the acquisition of this property by Partridge he, and his church, to the day of his death in 1841, recognized this lot as church property. It was known as the 'Temple Lot." Proof conclusive of this issue is furnished in the fact that Joseph Smith, the founder and head of the church, its recognized Prophet and Seer, himself came to Missouri, and in 1832 held religious services on this site, and sol- emnly dedicated it as the spot where the Temple was to rise and shine. Partridge himself participated in this ceremony. And to "make assurance doubly sure," Partridge, on the eve of the expulsion of himself and the people of his church from the State by military force at the command of the Governor, in 1839, made a deed, embracing this property, to the minor children of Oliver Cowdery, his coworker in the church and companion in misfortune; in which he recited the fact that ''there was money put in my hands by Oliver Cowdery, an elder in the Church of Latter Day Saints, formerly of Kirt- 20 REORGANIZED CHURCH VS. land, Ohio, for the purpose of entering the lands in the State of Missouri, in the name and for the bene- fit of said church." This no doubt from the evi- dence, was the money placed in his hands and re- ported to the church at Kirtland, Ohio, IV. This deed from Partridge to the Cowdery children is assailed on various grounds. It is objected that there is not sufficient evidence of its delivery. The deed proper bears no date, but it was acknowledged on the 25th day of March, 1839. Presumptively it was executed prior thereto, or contemporaneously therewith. Under the ruling of the State Supreme Court the presumption is that the deed was delivered the day of the acknowledgment. Fontain vs. Boat- man Savings Inst., 57 Mo. 552. It is also the settled rule of the State that the recording of a deed, duly acknowledged, is presumptive evidence of delivery. Kane vs. McKown, 55 Mo. 198. There is also in this case other reasonable pre- sumptions of delivery. The evidence shows that Partridge and his flock were, in 1839, in peril. They fled under military menace from Caldwell County in this State. Filled with apprehension and uncer- tainty, and anxious for the execution of his sacred trust respecting this property, he fell upon the plan of declaring the trust in this deed, and of making the children of Oliver Cowdery, his tried friend and an elder in the church, the depositaries of the title, be- lieving no doubt that on account of their tender years they would be less exposed to violence and CHURCH OF CHRIST, Ei AL. 21 harm, and that on account of their training, in the church they would be worthy and faithful trustees. It is, therefore, reasonable to conclude that he de- livered the deed to some one of them, or to some one for them, before fleeing the State. It is quite in- ferable, from all the facts and circumstances in evidence, that these children died in their minority. Presumptions in equity should be more liberally in- dulged after such a long lapse of time, where the loss of witnesses by death and removals and disappear- ance often render direct* proof impossible. The recording act of the State statute during this period prescribed no time, inter partes, within which a deed should be admitted to record. The writer of this opinion sought unsuccessfully, as counsel in Sappington vs, Oechsli et aX,, 49 Mo. 244, to have the Court, on general principles of equity as to third parties giving credit to the ostensible owner of the fee on the faith thereof, hold that a deed should be recorded at least within a reasonable time. Even had there been no actual delivery of this deed, there is high authority, on sound principle, for holding that where a trustee, in order to secure a trust obligation, makes a deed even to himself as trustee, regularly executed, except recording it, and dies leaving the deed among his papers, it will bind the land effectually as a declaration of trust, and it would be sufficiently delivered for such purpose. Carson et al. vs. Phelps et al., 40 Md. 73. The State statute, Section 4860, authorizes a copy of such recorded deed to be read in evidence, al- though not recorded within one year after execu- 22 REORGANIZED CHURCH VS. tion, "upon proof of such facts and circumstances as, together with certificate of acknowledgment, or proof, shall satisfy the Court that the person who executed the instrument is the person therein named as grantor." Aside from the circumstances* already recited, the evidence shows that the grantor lived in Caldwell County, Missouri, where the acknowl- edgment purports to have been taken. He was a conspicuous character there, and naturally enough was known to the County Judge, who himself was a member of the grantor's church. The law always presumes that a public officer does his duty. It is, therefore, to be presumed that the Recorder of Jackson County in admitting the deed to record in- spected it, and was satisfied of its original character. I therefore admit the deed in evidence. This deed clearly enough declares a specific trust for the church. The criticisms made by Counsel, in this connection, are strained. They do violence to the declared honest purpose of the grantor. It is contended, for instance, that the description of the land is uncertain. After other particularities, the deed concludes as follows: 'This sale is to embrace all lots of all sizes situated in Independence, and to embrace the lot known as the Temple Lot, and all other lands of whatever description said Partridge, the first party, is entitled to in Jackson County, in the State of Missouri." The "Temple Lot" was thus not only susceptible of ascertainment and identifica- CHURCH OF CHRIST, ET AL. 23 tion, but the evidence shows it was as well known to the people of Independence as the public square. It is next suggested that the grantor acknowl- edged in this deed the receipt of $1,000 from Oliver Cowdery as purchase money for the land; and that this discharged the land from the trust, as the church presumably received the benefit of the money, and it can not both hold the money and the land. This, it seems to me, is a non sequitur. If Oliver Cowdery in fact saw fit to pay Partridge $1,000 to so convey the land in trust, how does that destroy the existence of the trust, even if it had been made to appear by the evidence (which it does not) that Partridge turned the money over to the church ? But the deed taken in its entirety shows clearly enough that the meaning of this acknowledgment was not that the grantor was then- receiving $1,000 from Cowdery, but it is to be read and understood in con- nection with the opening sentence of the instrument, which declares that said Cowdery, as elder of the church, had put money in the grantor's hands. Cow- dery knew as well as any living man that the "Tem- ple Lot" had been bought by Partridge for the church, and that Partridge had come to Missouri as the Bishop and agent of the church to acquire lands for its benefit and use. The deed shows on its face that it was very inartificially drawn, but shows throughout the purpose of the grantor to secure this property to the church. It winds up with the sig- nificant sentence, "Said Partridge also agrees to amend this deed to said Oliver Cowdery at any time for the purpose aforesaid." 24 REORGANIZED CHURCH VS. VI. The Respondents claim title ; first, through a deed of conveyance from three out of five of the heirs of Edward Partridge; and second, by adverse pos- session. As the basis of the record title they offered in evidence a certified copy from the Recorder's office of Jackson County of what purports to be a deed from three of said heirs, of date May 5, 1848, to one James Poole. The first objection to this deed is that it was not acknowledged properly. The point of this objection is that the Clerk of the Circuit Court certified the acknowledgment under his private seal, there being no seal of the Court pro- vided. By section 16, page 221, title conveyances. Statute of 1845, in force when this acknowledg- ment was taken, it is provided that : ''Every instru- ment in writing whereby any real estate is con- veyed, or may be effected in law or equity shall be acknowledged or proved and certified in the manner hereinafter prescribed." Section 19 prescribed that such certificate shall be *'When granted by a Court, under the seal of the Court, when granted by the Clerk of the Court, un- der the hand of the Clerk, and seal of the Court of which he is Clerk ; when granted by an officer, who has a seal of office, under the hand and official seal of such officer, when granted by an officer who has no seal of office, under the hand of such officer." We will not pursue this matter further than to say, that it would seem the statute is quite explicit, that where the acknowledgment is taken by a Clerk CHURCH OF CHRIST, JiJT AL. 25 of Court, it must be "under the seal of the Court of which he is Clerk." The deed should not be admitted in evidence be- cause neither the original was offered in evidence nor any affidavit, nor other proof of its loss, or that it was not in the Defendant's possession. Crispen vs, Hannavan, 72 Mo., 548. A yet more fatal objection to this deed as a valid conveyance against the unrecorded deed from Par- tridge of 1839 is the fact that no evidence whatever was offered tending to show that Poole paid a valuable consideration for this deed, or that any subsequent purchaser paid any valuable considera- tion. To constitute an innocent purchaser in such case is not sufficient that it should appear that a deed was executed, but the proof must go further and show affirmatively that a valuable consideration was paid, and that too before the prior deed was placed on record. The recital of the receipt of alleged pur- chase money in the deed is not sufficient proof of the payment of the purchase money as against third parties. Simmons Creek Coal Co. vs. Doran, 142 U. S. 417-537, and cases cited. Bishop vs. Schneider et (U., 46 Mo. 473. Sylloman vs. King, 36 Iowa 207- 213. VII. The Respondents next rely upon ten years' adverse possession of this property. Conceding that the Poole deed, and others following thereon, con- stituted color of title, there must be joined with it adverse possession. Avery vs. Adams, 69 Mo. 603. 26 REORGANIZED CHURCH VS. Such possession must not only be adverse, but it must be unbroken for a period of ten consecutive years. Moore vs. Harris, 91 Mo. 617; Olwine vs. Holman, 23 Pa. State 279; Malloy vs. Burden, 86 N. C. 25. The Statute of this State (Sec. 6768) is but expressive of the better common law rule, that a possession of a part of a tract of land, under color of title, to extend to other lands not actually oc- cupied, must be in the name of the whole tract claimed, coupled with the exercise of usual acts of ownership over the whole tract claimed. The evidence in this case shows that about 1851 Woodson and Maxwell platted that portion of the sixty-three acj-es lying north of Walnut Street, and containing about one fourth of the whole land, lay- ing it out into streets and alleys and lots, which in- cluded the '^Temple Lot"; and it may be conceded to Respondents that a part of this sixty-three acres outside of the Temple Lot was fenced, and perhaps some of the lots sold; but it is not sufficient that a party under a colorable deed should occupy one lot, where a tract is divided up into lots with separate streets, and acquire title by limitation to a lot not connected and not occupied, by merely claiming title thereto. The segregation of the land into parcels and distinct lots with dividing streets, broke the con- tinuity of the tract of sixty-three acres, and neces- sitated some open visible acts of ownership over each parcel. Leeper vs. Baker, 68 Mo. 402. It is too clear for debate that this Temple Lot, in controversy, was never fenced or occupied until 'these Respondents entered in 1882 and began to put a CHURCH OF CHRIST, ET AL. 27 wire fence around it. It is true there are some wit- nesses who testify to mere impressions about a fence being somewhere about this lot in 1847. If so it was not put there by Poole, or anyone claiming under him. The statements of these witnesses are entirely too indefinite and conjectural to predicate an adverse holding thereon. It is not sufficient that improvements should be shown to have been on or about the lot. It must appear affirmatively that they were made "by a party claiming adversely/' and it must be continuous for the ten years. Doolittle vs. Tice, 41 Barb. 181. The platting of the land into lots and streets was an act of ownership, but as the streets lay outside of the Temple Lot, little importance can be attached to that, unless followed up with some visible acts of dominion over that lot. The mere payment of taxes by separate parties on separate lots, without more, did not amount to an adverse holding. Champman vs. Templeton, 53 Mo. 465; Raymond vs. Morrison, 59 Iowa 371 ; McDermott vs. Huffman, 70 Pa. State 131. It does not appear that Maxwell, who bought from Poole in 1848, did any act of ownership on this prop- erty outside of the fact that he and Woodson, , by some arrangement not disclosed in the evidence, laid off the tract of sixty-three acres into lots and streets about 1851. It next appears from a decree made in the Circuit Court of Jackson County in 1859 that Woodson claimed to have made a contract of pur- chase with Maxwell for that portion of the tract lying south of Walnut Street, which did not embrace 28 REORGANIZED CHURCH VS. the Temple Lot. Maxwell died in 1856. So he could not have held possession for ten years; and there is no evidence of any possessory act by his heirs or anyone else under him. The suit of Woodson was against the heirs of Maxwell in a partition proceed- ing. And how the Court got into the decree therein made in 1859, any part of the Temple Lot, against the express finding that Woodson had bolight from Maxwell only the land south of the street running south of the Temple Lot, is inexplicable. That part of the decree was a mere brutum fulmen. Recita- tions made in the partition proceedings and deeds are not binding on strangers. Warren vs. Syme, 7 W. Va. 474. No deeds were made under this partition sale until 1867. During all this time there is nothing shown, to satisfy the mind of the Court, of a single act of ownership over a foot of the Temple Lot. About the time of the making of these deeds, under the par- tition proceeding, one J. R. Hedrick began to buy up these lots in the interest of Granville Hedrick, President of the Defendant Church, in trust for said church who, as it will appear hereafter, had notice of the trust on said Temple Lot, and did not take actual possession thereof until twelve years after the trust deed from Partridge was put upon record, and with- out taking any steps to remove said cloud on the title. CHURCH OF CHRIST, ET AL. 29 VIII. Even if the Poole deed were admitted in evidence it would only affect three-fifths of the lot, and it is impossible to reasonably escape the conclusion that he and all the parties claiming under him had notice of the trust character of the Temple Lot. It is a wise rule, predicated on sound public policy, and nearly always promotive of the ends of justice, announced by the Supreme Court in Benoist vs. Darby, 12 Mo. 206: "Where particular knowledge of a fact is sought to be brought home to a party, evidence of the general reputation and belief of the existence of that fact among his neighbors, is ad- missible to the jury as tending to show that he also had knowledge as well as they. It is next to impos- sibility in very many cases to fix a positive knowl- edge of a fact upon an individual, notwithstanding the interest he may have in being correctly informed, and doubtless is informed thereof, and we can not see the injustice of permitting a party to raise a presumption of knowledge in such case by showing that the community are informed on the subject, and hence the party interested may also have similar knowledge.*' Courts will take judixiial notice of matters of pub- lic history. • They will also admit for the purpose of notice a matter of local history on proof aliunde tending to show its truth. The appearance and lo- cation of the Mormons, so-called, at Independence, Missouri, and the selection of the Temple Lot, was as notorious in Western Missouri as the famoua 30 REORGANIZED CHURCH VS. order No. 11 of the late Civil War. The local com- munity was stirred to its depths with intensest ex- citement over the fact of the proposed erection on this site of the central temple of this sect as their New Jerusalem, and the gathering around it on the contiguous sixty-three acres of the believers. It led to open-armed hostilities between them and the Gen- tiles. The testimony of quite a number of old resi- dents, gentlemen of the highest character, as well as the testimony of many of the Respondent's wit- nesses, show indisputably that this lot was generally known and recognized in that community as the "Temple Lot." Its public dedication as such, by Joseph Smith, the founder. Prophet, and Seer of the church, was itself an event so noteworthy that it is incredible it should not have been known, and been long the subject of common talk in the community. Partridge was a conspicuous character in the church, and his children were followers. The name "Tem- ple Lot" has adhered to this piece of property, on one of the principal thoroughfares of the city of In- dependence, through all these years. And the cir- cumstances detailed by Emily, the daughter of Partridge, under which the deed was executed to Poole, carry persuasive evidence to my mind that he knew he was after acquiring this property cov- ertly, and that he was really acting in the matter in the interest of Maxwell, to whom he at once con- veyed. When Woodson and Maxwell, themselves old settlers and conspicuous characters of the county, platted this ground, they designated the street bounding this lot on the east "Temple Street." They CHURCH OF CHRIST, ET AL. 31 must have known they were trying to reduce to speculative interest a spot sacred to this church. They assumed, doubtless, that those people violently expelled from the State and under popular odium, would not have the temerity to claim their own, and to carry out the purpose of the dedication of this lot. Granville Hedrick, the head and founder of the Respondent organization, was himself, up to 1857, a conspicuous member and minister of the Com- plainant organization. He knew all about the trust character of this property, and his purpose was, in buying up these supposed outstanding titles, to pre- serve the property to its trust use. So impregnated with this thought were his followers that the leader and the trustee for this property testified in this case as follows: Q. — Is it true that you claim, and hold, and have always so claimed and held since you have been the trustee, to hold the property in trust for the legal succession of the church that was organized in 1830? A. — In no other way have we held it than for the church, and we claim to be the church in legal succession from 1830 down to the present. We are holding it in trust for the church which is represented by us, and which we claim is the church that was organized by Joseph Smith, on the 6th day of April, 1830, as history records it. We claim to hold this property in that way, as being part and parcel of the church organized at that time. The Respondent, Hill, who holds whatever title the Respondents have to this property, testified that he came to Independence, Missouri, in 1868, "not be- cause of any special temporal benefit," but because "the Saints were to gather here in Independence, or 32 REORGANIZED CHURCH VS. Zion as it is called. I had read the revelation in the Book of Doctrine and Covenants in reference to the Temple property here in Independence, be- ginning with July, 1831. ... I did not have to try to find it [the lot] for it was here plain enough to be seen. I found the Temple property myself, and it was known as the Temple Lot when I came here." While it is true that a person purchasing land from one who appears by record deed to be the owner in fee is not bound by equities in favor of ^ stranger to the deed, yet, if he have notice of equities, dehors the record, he is as effectually bound thereby as if such equities were incorporated in the deed. The taking of a legal estate after notice of a prior writing makes a person a mala fide purchaser; and actual notice em- braces all degrees and grades of evidence, from the most direct and positive proof, to the slightest circumstance from which a jury would be warranted in inferring notice. Sim- mons Creek Coal Co. V8. Doran, 142 U. S. 437, 438. There is perhaps not a Mormon on the American Continent, possessed of any intelligence, who has not known, from his connection with the church, the history of the Temple Lot at Independence. And it would be about as reasonable to suppose that an Israelite could become the purchaser of a lot in Jerusalem, and claim that he was an innocent pur- chaser against the design of his people to reestab- lish there the New Jerusalem as to say these Re- spondents are innocent purchasers. CHURCH OF CHRIST, ET AL. 33 IX. It remains to be ascertained who are the true beneficiaries of this trust. It is a mere play on words, a clutching after shadows, for Respondents to quibble about the precise name by which the Mor- mon Church was known in its early history. As well say that the denomination of Christians now known as "The Christian Church'* had lost their identity, because in their early history they were called ''Campbellites/* The identity, unity, and sameness from 1830 to 1844 of the Mormon Church are too clear for debate. Now and then, by this and that person, it was called "The Church of Christ,'* "Church of Latter Day Saints," and "The Church of Jesus Christ of Latter Day Saints." The terms were employed interchangeably. As applied to this issue, it is rather a question of identity of doctrine. The temple built at Kirtland, Ohio, the central rendez- vous between 1830 and 1835, was inscribed on the portal with the words, "The Church of Jesus Christ of Latter Day Saints." This was the public au- thoritative recognition of the name by which they chose to be known. Beyond all cavil, if human testimony is to place any matter for ever at rest, this church was one in doctrine, government, and purpose from 1830 to June, 1844, when Joseph Smith, its founder, was killed. It had the same federal head, governing bodies, and faith. During this period there was no schism, no secession, no "parting of the ways," in any matter fundamental, or affecting its oneness. 34 REORGANIZED CHURCH VS. The only authorized and recognized books of doc-* trine and laws for the government of the church from 1830 to 1846 were the Bible, the Book of Mor- mon, and the Book of Doctrine and Covenants. The Book of Doctrine and Covenants, which consisted principally of claimed divine revelations to Joseph Smith, was the edition published at Kirtland, Ohio, in 1835, and at Nauvoo in 1845. No possible question could be made that had this church, with its central governing power resident at Nauvoo, asserted right of control over this prop- erty up to 1845, it would have been recognized by the ecclesiastical body and by Courts of Chancery, as the beneficiary of the trust recognized by Edward Partridge from 1832 and declared by him in his trust deed of 1839. Joseph Smith was killed at Carthage, Illinois, in June, 1844. He was the President and the inspir- ing spirit of the church. His violent death struck with dismay the hearts of his followers ; and out of the confusion incident thereto was born disorder, schism, and ambition for leadership. Disintegration set in and the church split into factions, which under the lead of different heads, scattered to different parts of the country. Among the "Quorum of Twelve*' — representing the Apostles — was one Brig- ham Young, a man of intellectual power, shrewd and aggressive, if not audacious. Naturally enough such a man gathered around him the greater num- bers, and it was an easy matter for him to seize the fallen reins of the Presidency. He led the greater portion of Mormons out to what was known as CHURCH OF CHRIST, ET AL, 35 "Winter Quarters," near Omaha, and thence to Salt Lake Valley in Utah, then a dependency of Old Mexico. From this settlement has sprung the pow- erful ecclesiastical body known as the Salt Lake or Utah Church. While the Respondents. are wary of claiming alliance with this Salt Lake Church, it is evidently "the power behind the throne" in the de- fense of this suit ; and claim is made by Respondent's Counsel that it in fact absorbed the Mormon Church, and is the real successor to the ancient church. There can be no question of the fact that Brig- ham Young's assumed presidency was a bold and • bald usurpation. The Book of Doctrine and Cove- nants (printed in 1846) page 411, containing a reve- lation to Joseph Smith, January 19, 1841, gave unto them ''my servant Joseph, to be a presiding elder over all my church, to be a translator, a revelator, a seer and a prophet. I give unto him for counselors my servant Sidney Rigdon, and my servant William Law, that these may constitute a, quorum and first presidency, to receive the oracles for the whole church. I give unto you, my servant Brigham Young, to be a president over the twelve traveling council." So that Brigham Young was but president over the "twelve," a traveling council. The book clearly taught that the succession should descend lineally and go to the firstborn. Joseph Smith so taught, and, before his taking off, publicly pro- claimed his son Joseph, the present head of Com- plainant Church, his successor, and he was so anointed. S« REORGANIZED CHURCH VS. The book also contains the following, when refer- ring to Joseph Smith: But verily, verily, I say unto you, that none else shall be appointed unto this gift except it be through hhn, for if it be taken from him he shall not have power, except to appoint another in his stead; and this shall be a law unto you, that ye receive not the teachings of any that shall come before you as revelations, or commandments; and this I give unto you, that you may not be deceived, that you may know they are not of me. For verily I say unto you, that he that is ordained of me, shall come in at the gate and be ordained as I have told you before, to teach those revelations which you have received, and shall receive through him whom I have appointed. Brigham Young's assumption of this office (un- der the claim of something like a transfiguration) was itself a departure from the law of the church. The Book of Mormon itself inveighed against the sin of polygamy. True it is that Brigham Young taught that these denunciations of the book were leveled at the Indians — the Lamanites. But I con- fess to an utter inability to interpret human lan- guage if this be* correct. In chapter 1, Book of Jacob, in speaking of the people of Nephi, the favored people, they are arraigned for growing hard of heart and indulging themselves somewhat in wicked practices, such as like unto David of old, desiring "many tvives and concubines," and also as did Solomon, David's son; and in chapter 2, same book, after alluding to the filthiness evidently of the Indian tribes, it says: Behold, the Lamanites, your brethren, whom ye hate, be- cause of their filthiness and the cursings which hath come CHURCH OF CHRIST, ET AL. 37 upon their skins, are more righteous than you: for they have not forgotten the commandment of the Lord, which was given unto our fathers, that they should have, save it were one wife: and concubines they should have none. . . . And now this commandment they observe to keep; wherefore, because of this observance in keeping this commandment, the Lord God will not destroy them, but will be merciful unto them, and one day they shall become a blessed people. How it can be that the Lamanites please God in sticking to one wife and the Nephites displease him by imitating David and Solomon in multiplying wives, and yet polygamy is to be a crown of right- eousness in the teachings of the Angel Mormon, chal- lenges my power of comprehension. It requires transfiguration to do so. Conformably to the Book of Mormon, the Book of Doctrine and Covenants expressly declared ''that we believe that one man should have but one wife, and one woman but one husband." And this declaration of the church on this subject reappeared in the Book of Doctrine and Covenants, editions of 1846 and 1856. Its first appearance as a dogma of the church [the dogma of polygamy] was in the Utah Church in 1852. Claim is made by the Utah Church that this doc- trine is predicated of a revelation made to Joseph Smith in July, 1843. No such revelation was ever made public during the life of Joseph Smith, and under the law of the church it could not become an article of faith and belief until submitted to and adopted by the church. This was never done. No more complete and caustic refutation of this claim made by Brigham Young can be found than in 38 REORGANIZED CHURCH VS. exhibit "W* in this case, in a book entitled "The Spiritual Wife System Proven False," issued by Granville Hedrick, the head of the Respondent Church, in 1856.. He ridiculed the pretension of Brigham Young that he had this revelation, unpro- claimed, locked" up in his private chest for nine years. He says: Now how strangely inconsistent, that the revelation should be given nine or ten years before its time, and have to lie eight or nine years under his patent lock before it would be time to proclaim it. Here, then, we have a specimen of an abortive revelation, come before its time, and had to be put in the sacred desk, under a patent lock, for eight or nine years, and shown occasionally — just often enough to get the thing used to it, so that when it got old enough it could go abroad. So much for this curious revelation, come in an abortion — got burned up — then locked up — and now has gone forth to damn everybody that don't believe in it. Why! It is a perfect phoenix. When the present President of the Salt Lake Church, Wilford Woodruff, was on the witness stand, he testified that on the 15th of November, 1844, there was no marriage ceremony in the church except that published in the [Book of Doc- trine and Covenants] edition of 1835. He was then asked why the church, of which he is President, in the publication of the Book of Doctrine and Cove- nants in the Salt Lake edition of 1876, eliminated the section on marriage as found in the 1835 edition and in all editions thereof published up to 1876, and inserted in lieu thereof the claimed revelation on polygamy of July, 1843. "Answer. I do not know why it was done. It was done by the authority CHURCH OF CHRIST, ET AL. 39 of whoever presided over the church, I suppose. Brigham Young was the President then." The Utah Church further departed from the prin- ciples and doctrines of the Original Church by- changing in their teaching the first statement in the Article of Faith, which was, *'We believe in God, the Eternal Father, and in his Son, Jesus Christ, and in the Holy Ghost,'' and in lieu thereof taught the doctrine of "Adam-God worship," which, as an- nounced in Journal of Discourses by Brigham Young, is as follows : When our father Adam came into the Garden of Eden, he came into it with a celestial body, and brought Eve, one of his wives, with him. He helped to make and organize this world. He is Michael the Archangel, the Ancient of Days, about whom holy men have written and spoken — He is our Father and our God, and the only God with whom we have to do. It has introduced societies of a secret order, and established secret oaths and covenants, contrary to the book of teachings of the old church. It has changed the duties of the President, and of the Twelve, and established the doctrine to **Obey Coun- sel," and has changed the order of the "Seventy, or Evangelists.'' The next important and interesting question is, Does the Complainant Chu-rch represent the bene- ficiaries of this property? In controversies of this character, respecting the rightful ownership of church property, the civil judicatories have nothing to do with the question 4© REORGANIZED CHURCH VS. as to which faction expounds the sounder theology, or moral philosophy, and which best accords with reason and common sense. A good Chancelor may be an indifferent theologian; and when he should lay aside the ermine for the surplice he might prove more bigot than justiciary. As said in Smith vs. Pedigd, 33 N. E. Rep. 777, ''Religious doctrines and practices are listened to by the Courts solely as facts upon which civil rights and the right to prop- erty are made to depend, regardless of the ultimate truth or soundness of such doctrines, practices, and beliefs." In case of disorganization and factional divisions of an ecclesiastical body, the settled rule of the civil courts is that ''the title to church property, '. . . is that part of it which is acting in harmony with its own law, and the ecclesiastical laws and usages, cus- toms and principles, which were accepted among them before the dispute began, and the standards for determining which party is right." The right of ownership abides with that faction, great or small, which is "in favor of the government of the church in operation, with which it was connected at the time the trust was declared." McRoberts vs. Moudy, 19 Mo. Ap. 26; Roshi's Ap. 69 Pa. St. 462; Baker et al. vs. Thales, 9 Pick. 488; Whitlick vs, Whitelick, 83 Ind. 130. The Courts will adjudge the property "to the members, however few in numbers they may be," "who adhere to the form of church government, or acknowledge the church connection, for which the property was acquired," (Judge Strong's lecture on CHURCH OF CHRIST, ET AL. 41 Relation of Civil Law to Church Property, pages 49-59.) Justice Caton in Ferraria et al vs, Vanconcellos et aZ,, 31 111. 54, 55, aptly states the rule to be, *'That, where a church is erected for the use of a particular denomination or religious persuasion, a majority of the members can not abandon the tenets and doc- trines of the denomination and retain the right to the use of the property; but such secessionists for- feit all right to the property, even if but a single member adheres to the original faith and doctrine of the church. This rule is founded in reason and justice. . . . Those who adhere to the original tenets and doctrines, for the promulgation of which a church has been erected, are the sole beneficiaries designed by the donors ; and those who depart from and abandon those tenets and doctrines cease to be beneficiaries, and forfeit all claim to the title and use of such property." No matter, therefore, if the church at Nauvoo be- came a prey to schisms, after the death of Joseph Smith, and presented as many frightful heads as did the dragon which the Apostle John saw in his vision on the Isle of Patmos, if there was one righteous left in Sodom, the promise of the covenant and of the law of the land is to him. It is neither good law nor Bible history to say that because the Saints be- came scattered and without an organism, the faith- ful lost the benefit of the church property. Forsooth the children of Israel were carried captive to Baby- lon, — "the mother of harlots and abominations of 42 REORGANIZED CHURCH VS. the earth/* — ^they did not cease to be children of the covenant, nor lose their interest in Jerusalem. A considerable number of the officers and mem- bers of the church at Nauvoo did not ally themselves with any of the factions, and v^herever they were they held onto the faith, refused to follow Brigham Young to Utah, and ever repudiated the doctrine of polygamy, which was the great rock of offense on which the church split after the death of Joseph Smith. In 1852 the scattered fragments of the church, the remnants of those who hold to the fortunes of the present Joseph Smith, son of the so-called ''Mar- tyr," gathered together sufficiently for a nucleus of organization. They took the name of "The Reor- ganized Church of Jesus Christ of Latter Day Saints," and avowed their allegiance to the teach- ings of the ancient church; and their epitome of faith adopted, while containing differences in phraseology, in its essentials is but a reproduction of that of the church as it existed from 1830 to 1844. To-day they are twenty-five thousand strong. It is charged by the Respondents, as an echo of the Utah Church, that Joseph Smith, "the Martyr," secretly taught and practiced polygamy; and the Utah contingent furnishes the evidence, and two of the women, to prove this fact. It perhaps would be uncharitable to say of these women that they have borne false testimony as to their connection with Joseph Smith; but, in view of all the evidence and circumstances surrounding the alleged intercourse, it is difficult to escape the conclusion that at most CHURCH OF CHRIST, ET AL. 43 they were but sports in "nest hiding.** In view of the contention of the Salt Lake party, that polygamy obtained at Nauvoo as early as 1841, it must be a little embarrassing to President Woodruff of that organization when he is confronted, as he was in the evidence in this case, with a published card in the church organ at Nauvoo in October, 1843, cer- tifying that he knew of no other rule or system of marriage than the one published in the Book of Doc- trine and Covenants, and that the "secret wife sys- tem," charged against the church, was a creature of invention by one Dr. Bennett, and that they knew of no such society. That certificate was signed by the leading members of the church, including John Taylor, the former President of the Utah Church. And a similar certificate was published by the Ladies* Relief Society of the same place, signed by Emma Smith, wife of Joseph Smith, and Phoebe Woodruff, wife of the present P'resident Woodruff. No such marriage ever occurred under the rules of the church, and no offspring came from the imputed illicit intercourse, although Joseph Smith was in the full vigor of young manhood, and his wife, Emma, was giving birth to healthy children in regu- lar order, and was enciente at the time of Joseph's death. But if it were conceded that Joseph Smith, and Hyrum, his brother, did secretly practice concubin- age,- is the church to be charged with those liaisons, and the doctrine of polygamy to be predicated thereon of the church? If so, I suspect the doctrine of polygamy might be Imputed to many of the Gen- 44 REORGANIZED CHURCH VS. tile churches. Certainly it was never promulgated, tauglit, nor recognized, as a doctrine of the church prior to the assumption of Brigham Young. It is next charged against Complainant Church that it has added to the Articles of Faith other reve- lations of the Divine will, alleged to have been made to Joseph Smith, the present head of Complainant Church. If so, how can this be held to be heretical, or Si departure, when in the Epitome of Faith of the ancient church, is this article, "We believe all that God has revealed, all that he does now reveal, and we believe that he will yet reveal many great and im- portant things pertaining to the kingdom of God*'? And in the Book of Doctrine and Covenants, para- graph 2, section 14, it is taught that such revelations might come through him whom the prophet might ordain. In the very nature of the doctrine of the church, that God in the fullness of time makes known his will to the church by revelation, additional revela- tions were to be expected. No specification is made by learned Counsel as to wherein the alleged new revelations declare any doctrine at variance with that taught in antecedent revelations. It is next charged that the Complainants have a new Bible. The basis for this is that Joseph Smith, the founder of the Church, was as early as 1830 engaged in a translation of the Bible, which he is alleged to have completed about 1833 or 1834. This work seems to have been recognized also in a reve- lation in section 13, paragraph 15, and in section 58. The evidence shows that this manuscript was kept CHURCH OF CHRIST, ET AL. 45 by his wife and delivered to the present Joseph Smith, her son, and was published by a committee of the church. It is not claimed by Joseph Smith that this translation is a substitute for the King James Translation, nor has it been made to appear that it inculcates any new* religious tenet different from that of the ancient church. In this day of multifari- ous and free translations of the Bible it should hardly be imputed a heresy in this church to take some liberties with the virgin Greek and Hebrew. It is also charged that the Complainant Church has only eleven representing the Quorum of the Twelve. I believe the New Testament records it as a histor- ical fact that 'Teter stood up with the eleven*' after the apostasy of Judas Iscariot. There is nothing in the Code of the present church to prevent the filling out of the "Twelve.'^ There are some other minor objections to the present organization, the answer to which is so ob- vious that it scarcely need be made. XI. Who are the Respondents and in what do they be- lieve? Looking at their answer in this case, and their evidence, the idea occurs that in theory they are Ecclesiastical Nondescripts, and in practice "Squatter Sovereigns." They repudiate polygamy while looking to Salt Lake City for succor. They deny in their answer that this property was ever bought for the church, or impressed with a trust therefor, and yet, when their head men were on the witness stand they swore they are a- part and parcel 4« REORGANIZED CHURCH VS. of the Original Church, founded and inspired by Joseph Smith, "the Martyr," and that to-day they hold the property in question in trust for that church. They are commonly called "Hedrickites" because their head is Granville Hedrick, who himself was a member of Complainant organization as minister, and participated actively in its General Conference as late as 1857, receiving "the right hand of fellow- ship,*' and moving the conference to works of evan- gelization in his region of the country. It is in- ferable from the testimony in this case that they reject measurably the standard Book of Doctrine and Covenants, and according to the testimony of Respondent Hill they "repudiate the doctrine taught by the church in general after 1833, 1834, and 1835." And also the law relating to "tithes and offerings," and the doctrine of baptism for the dead, which were taught by the Mother Church. They also seem to reject the law relating to the Presidency, and of "the Twelve Traveling High Council," and also "the Quorum of Seventy Evangelists." They are but a small band, and their seizure of the Temple Lot, and attempt thus to divert the trust, invoke the interposition of a Court of Equity to establish the trust and prevent its perversion. CHURCH OF CHRIST, ET AL. 41 XII. LACHES. It is urged by Respondents that the claim of Complainant is stale, and that a Court of Equity will not afford relief where party complaining has been guilty of laches. There are several answers to this objection. In the first place, this is an ex- press trust \Ti. favor of Complainant, arising on the Partridge deed of 1839. The statute of limitation does not run against an express trust. There was no repudiation of the trust by the trustees. Laches is a question determined by the circumstances of the particular case. The delay in bringing this action is not inexcus- able. The beneficiaries of the trust were driven from the State in 1838-9 by military force, and were not permitted to return to the State. A public hos- tile feeling and sentiment were excited against them, which would have blazed up from the slumbering fires at any time thereafter prior to the Civil War, had they returned here and attempted to occupy this property. No one better knew this than the Re- spondents when they laid hands to this property. The Complainants were not here **to stand by'* while parties were giving and receiving deeds to this property. No improvements were made on, and no visible possession taken of, the Temple Lot, until 1882, within ten years of the institution of this suit, and when the trust deed had been of record twelve years. Up to this hostile action of Respondents the Complainant had a right to assume that the trust 4S HISTORY OF SUIT character of this property was intact, and that the lot was open for their entry at any time when the auspicious hour came to build on it. In the language of Chief Justice Fuller in Sim- mons Greek Coal Company vs. Doran, 142 U. S. 444, "There was no delay, therefore, in the assertion of its rights after they were invaded." See also Burke vs. Bachus (Minn.), 53 N. W. Rep. 458. XIII. A Court of Equity has jurisdiction in this case. It belongs to it to remove clouds from title, "the relief being granted on the principle of quia timet/' It is peculiarly its province in a case like this to vindicate the trust, to determine the real benefi- ciaries of the trust estate, and to prevent its diver- sion. Decree will go in favor of Complainant, establish- ing the trust in its favor against Respondents, re- moving the cloud from the title, enjoining Respond- ents from asserting title to the property,- and award- ing the possession to the Complainant. I, John F. Philips, Judge of the Circuit Court of the United States for the Western Division of the Western District of Missouri, do hereby certify that the foregoing is a copy of the opinion handed down by me in the above entitled cause. Witness my hand this 16th day of March, A. D. 1894. jno. f. Philips, Judge.