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Western Division of the Western District of Missouri 



^^^ of 



Temple Lot Case I 

fhe Reorganized Church of Jesus Christ t)f 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 

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 


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 

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 


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- 

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. 





Western Division of tiie 

The Reorganized Church of Jesus 
Christ of Latter Day Saints, 
The Church of Christ, et al. 


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 

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 


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 


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 


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. 




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 


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 


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 


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." 


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. 


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 


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- 


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 

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- 


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 


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." 


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- 


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- 


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, 


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 


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- 


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- 


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." 



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 


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- 


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. 


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 


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 

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 


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 



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 

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 


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 


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 


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. 



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. 


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 


"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 


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 


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 


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 


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 

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 


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 

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 


Relation of Civil Law to Church Property, pages 

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 


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 

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 


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 

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- 


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 

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 


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. 


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 


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 

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. 



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 


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. 


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- 

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.