Decision of John F. Philips, judge, in Temple Lot case : the Reorganized Church of Jesus Christ of Latter Day Saints versus the Church of Christ, et al

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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.