Opinion
11-21-1902
QUAIROLI et al. v. ITALIAN BENEFICIAL SOCIETY OF VINELAND.
Wheaton Berault and Howard Carrow, for complainants. Henry S. Alvord, for defendant.
Bill by Carlo Quairoli and others against the Italian Beneficial Society of Vineland to declare and enforce a trust Submitted on motion to dismiss. Dismissed.
The defendant company, under rule 213, moves to dismiss the whole bill of complaint because of several enumerated defects claimed to be apparent on its face, or to strike out certain objectionable parts of it The bill is filed by a number of individual complainants and by the Italian Beneficial & Educational Association of Vineland, N. J., a corporation of this state, against the Italian Beneficial Society of Vineland, which is also a corporation of this state, defendant. The bill alleges that in 1878 the complainants associated themselves with other natives of Italy residing near Vineland, for the purpose of providing better instruction and educational advantages for themselves and their children, by establishing schools in Vineland; that they procured subscriptions and contributions of work and material to erect a two-story brick schoolhouse, and furnish it with supplies to establish a school, on a lot offered to them by Mr. Charles K. Landis; that at that time there existed in Vineland a society known as the Italian Beneficial Society of Vineland, incorporated in this state (the defendant company), and that the complainants, who were generally known as the "Italian Colony of Vineland," were not incorporated, and therefore could not take title to the land offered to them by Mr. Landis; that the beneficial society (now defendant) was selected as trustee to take title to the lot of land upon terms stated in the bill to have been as follows: "Upon the express condition that they were to hold said lot of land as trustee for your orators, and, further, that the schoolhouse or building thereon erected was to be used for the education and Instruction of Italian children and others in the Italian language, literature, and history, and that said schoolhouse or building was to be used for no other purpose than that of holding therein day, night, and Sunday schools for the instruction of Italian children as aforesaid; that said Italian Beneficial Society was to hold title to said lot of land and schoolhouse subject to the direction and control of your orators and the said Italian Colony, and said society was to convey, by good and sufficient conveyance in the law, said schoolhouse and lot to whatsoever person or persons or corporation your orators and the said Italian Colony might at any time name and appoint." The bill further alleges that during the years of 1879, 1880, 1881, 1882, the Italian Beneficial Society carried out the conditions upon which the legal title to the schoolhouse and lot was conveyed to it, but that since the year 1882 that society has refused to permit the schoolhouse lot to be used for the purposes aforesaid, and has refused to make any conveyance thereof to the Italian Beneficial & Educational Association, and has rented the school building to the school authorities of Vineland, and has retained the rents for its own use, thereby depriving the complainants of their privilege to have instruction for their children under the terms and conditions of the donation of the land, and the erection of the schoolhouse thereon. The bill states that the Italian Beneficial & Educational Association of Viuelaud, N. J., one of the complainants, was incorporated on the 1st day of April, 1901, by the complainants and other Italian residents of Vineland. The prayer of the bill is: First, that the defendant the Italian Beneficial Society may be decreed to convey the schoolhouse and lot of land in question to the Italian Beneficial & Educational Association of Vineland, N. J.; or, second, to hold the premises in trust for the complainants, and subject to their direction and control; or, third, to establish schools in the school building for the education of Italians; or, fourth, that it may return the complainants' contributions, at a fair valuation, of the amount of their donations of labor and material; or, fifth, that the defendant may be decreed to pay the complainants in cash a fair valuation for the lot of land in question. The grounds upon which the defendant company gives notice and moves to strike out the whole bill are: First because the bill shows on its face gross laches on the part of the complainants in seeking relief, and sets forth no reason for their delay; second, that it nowhere appears on the bill that the Italian Beneficial & Educational Association of Vineland has any interest in the subject-matter of the suit, or is entitled to any relief in the premises, or is for any reason a proper party complainant; third, because the bill does not show that the complainants, or any of them, contributed to the erection of the school building a sufficient amount to entitle them to any relief in this court The defendant further gives notice and objects to particular parts of the bill of complaint as follows: First, that nothingin the bill shows under what act of the legislature the Italian Beneficial & Educational Association of Vineland, N. J., was incorporated, or what its rights and privileges or objects are, and for this reason the first prayer for special relief is bad; second, that nothing in the bill is alleged which would justify the court in granting the second special prayer, to the effect that the premises should be held in trust for the complainants, and subject to their control; thirdly, because the bill contains no allegation that the defendant corporation has ever received any fund for the purpose of establishing schools in the school building, and for this reason the third special prayer could not be granted; fourthly, because nothing in the bill shows any facts which would warrant the court in decreeing the return to the complainants of the amount of their alleged contributions in the erection of the school building, as is asked in the fourth special prayer; fifthly, because the bill contains no allegation which would authorize the court to direct a payment to complainants, in cash, of a fair valuation of the land.
Wheaton Berault and Howard Carrow, for complainants.
Henry S. Alvord, for defendant.
GREY, V. C. Those criticisms which challenge the bill as a whole will first be considered, for, if they are found to be sufficient to dismiss it, the objections to specified portions of the bill need not be examined.
The bill shows on its face that, whatever rights and privileges in the schoolhouse and its lot the complainants allege themselves to have, they became possessed of between 1879 and 1882. These rights and privileges the bill defines with precision, and then alleges that since the year 1882 the defendant corporation has refused to permit the complainants to enjoy them. It appears, therefore, that for about 20 years the complainants have been aware of the refusal of their rights, and nothing appears on the face of the bill showing that during all that time any step has been taken to enforce those rights, nor is any reason given for not seeking to enforce them. It is quite evident that, if this bill is to be entertained as an effort to declare and enforce a resulting trust, parol testimony of contributions of labor and material, great in number and small in their several amounts, must be presented. The great lapse of time since the happening of these events will make it very difficult, if not impossible, to the defendant to meet testimony of this character by refuting proofs. The period that has elapsed during which the defendant corporation has excluded the complainants from the enjoyment of the property to which they allege they are entitled, under the allegations of the bill, has been nearly or quite 20 years. During all that time the bill alleges the complainants have, to their knowledge, been denied their rights. Such a situation of affairs, in which a trustee openly and expressly, and to the knowledge of the cestuis que trustent, disclaims and denies a trust, and excludes thern from the trust property for so long a period, would go far to overthrow the trust, if it were actually expressed in writing. It is much more unfavorable when the proceeding is one which seeks to have a resulting trust declared. Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 305. Not a single explanatory circumstance is stated which might excuse the complainants' failure to assert their rights, if they had any. They were out of possession, and were denied their use of the property, and apparently acquiesced in this condition of affairs for about 20 years, and now ask this court to declare and impose a trust in their favor. Laches such as this, appearing unexplained upon the face of the bill, may be taken advantage of by demurrer. Story, Eq. PI. § 503; Van Houten v. Van Winkle, 46 N. J. Eq. 384, 20 Atl. 34, and cases there cited. This objection goes to the whole bill, lies at the foundation of the complainants' case, and appears to be irremediable. For this reason, the bill cannot be entertained.
The second criticism, that complainant the Italian Beneficial & Educational Association of Vineland is not shown on the face of the bill to have any interest in the subject-matter of the suit, or to be entitled to any relief in the premises, or to be for any reason a proper party complainant, is also a just objection to the bill. It is obvious that this corporation cannot have any interest in the schoolhouse property, because of the incidents which are alleged to have resulted in the devotion of that property to school purposes, for these took place in the years from 1879 to 1882, and this corporation was not incorporated until 1901. If it is to be a party because, in case the complainants should be successful in establishing a trust, it might be the trustee who might be selected to carry the trust into effect, there still remains the objection that nothing in the bill of complaint shows that that association has any powers which would enable it to accept a conveyance such as the bill prays may be made to it.
As to the criticism that the bill does not, on its face, show that the complainants, or any of them, contributed to the erection of the school building sufficient values to entitle them to any relief in this court, it may be said, taking the allegations of the bill to be true, to the effect that the complainants contributed, in work, labor, and materials, the amount which resulted in the construction of the building, a fair inference would lead the court to believe that the total sum was in excess of $50, the minimum limit of value of cases in which this court will entertain jurisdiction.
In addition to the general objections made by the defendant to the whole bill, there are other apparent defects which would undoubtedly have to be noticed if the cause shouldgo to a hearing. The most important of these is that the bill alleges in precise terms that the land is charged with an express trust, which is nowhere shown to be in writing. Such a trust is within the prohibitions of the third section of the statute of frauds. There is no allegation of fraud, accident, mistake, or part performance, which might prevent the application of the statute, and the circumstances narrated make it extremely improbable that any such equitable excuses can be made.
It must also be noticed that the express trust set out in the bill distinctly alleges that the defendant company was to hold the title to the schoolhouse and lot subject to the direction and control of the complainants and the Italian Colony, and was to convey the schoolhouse and lot to whatever person or corporation the complainants and the Italian Colony might designate or appoint. Assuming that there was in fact such an express trust, and that it was capable of being proved and enforced, it is difficult to see how the complainants can take proceedings to enforce it in their own exclusive favor. The Italian Colony appears, in the particulars named, to be entitled to the benefits of the trust equally with the complainants. The Italian Colony is not made a party in this cause, nor is there any explanatory allegation on the face of the bill showing any reason why the Italian Colony is not made a party.
The bill of complaint appears to be radically defective upon the grounds of objection to the whole bill which are noticed by the defendant, and should be dismissed, with costs.