Opinion
No. 26546.
January 23, 1928.
1. RELIGIOUS SOCIETIES. Religious society's property holding in excess of statutory limit is not forfeited, statute not expressly requiring it ( Hemingway's Code 1917, section 4110).
The property held by a religious society in excess of that allowed by Hemingway's Code 1917, section 4110 (Code 1906, section 934), is not forfeited to the state, there being no express provision therefor in the statute.
2. RELIGIOUS SOCIETIES. Statutes. Neither provision of Constitution as to special and general laws or other provision is violated by validation of title of real estate owned by religious society ( Hemingway's Code 1927, section 4525; Constitution 1890, sections 87, 88).
Laws 1926, chapter 194 (Hemingway's Code 1927, section 4525), validating the title to all real estate at the time owned by any religious society, does not violate Constitution 1890, sections 87, 88, as to special and general laws or other provision of Constitution.
3. RELIGIOUS SOCIETIES. State can merely force a sale of property held by religious society in excess of statutory limit ( Hemingway's Code 1917, section 4110).
Title of religious society to property held by it in excess of that allowed by Hemingway's Code 1917, section 4110 (Code 1906, section 934), is merely one defeasible at the instance of the state, which can force a sale of the property but cannot take it from the society.
4. RELIGIOUS SOCIETIES. Statute validating title to real estate held by religious society does not affect that of subsequently acquired property ( Hemingway's Code 1927, section 4525).
Hemingway's Code 1927, section 4525 (Laws 1926, chapter 194), validating title to all real estate at time owned by any religious society, cannot affect title of any property acquired by society after the statute went into effect.
5. RELIGIOUS SOCIETIES. Only the state can take advantage of restrictions imposed by statute on amount of property that religious society can hold ( Hemingway's Code 1917, section 4110).
Restrictions imposed by Hemingway's Code 1917, section 4110 (Code 1906, section 934), on the amount of property which a religious society can hold, cannot be taken advantage of by private persons, though next of kin of the person from whom the property came, but only by direct proceedings by the state.
6. EQUITY. Under facts, bill to forfeit excess real estate holding of religious society would not be retained as one to compel sale.
Bill of state to forfeit real estate held by religious society in excess of statutory limit, which cannot be maintained, cannot be retained as one to compel speedy sale; that not being one of its purposes, but it being filed within a month after the conveyance in trust for the society, and there being no intimation that the trust would not be speedily executed, but, on the contrary, it being alleged that the trustee was proceeding to carry out the trust and convert the real estate into money and turn the proceeds over to the society, and that, unless restrained, he would accomplish that purpose.
ETHRIDGE, J., dissenting.
APPEAL from chancery court of Adams county; HON. R.W. CUTRER, Chancellor.
Engle Laub, for appellants.
Our Mortmain Statute against religious societies holding property other than lawfully permitted has been before this court a number of times, and this court has held clearly that such property was held in violation of the public policy and laws of the land. Central Methodist Church v. Meridian, 126 Miss. 780, 89 So. 650. In Gunter v. Jackson, 130 Miss. 637, 94 So. 842, this court clearly indicated that in the case of a religious society owning property in excess of the amount allowed by law, an escheat proceeding by the state would be proper. As to such property held in violation of law, and in contravention of our Mortmain Statutes, a religious society is in the same position as if our statute specifically declared that such property should be escheated to the state. Such is the universal law or penalty for the violation of an act prohibiting the holding of lands by religious organizations. Wisconsin Lumber Co. v. State ex rel. Gillespie, Land Comm., 97 Miss. 571, 54 So. 247. Such was the common law.
In Louisville Insurance Co. v. Comm., 143 S.W. 1044, the court sustained an escheat proceeding with respect to real estate which a corporation had held in violation of law more than five years. This case held that after a proceeding by the state to escheat the property, all interest by the corporation in the land is terminated. The statute invoked provided that the penalty for a corporation holding property not necessary for its legitimate business for more than five years was that the property and the proceeds thereof should escheat to the state.
As the state has a right to apply the corrective and as the facts show this to be a proper case for a corrective, the demurrer should have been overruled. On the proposition that the state alone can question, the authorities are numerous. 3 Thompson on Corporations (2 Ed.), sec. 2391. The corporation holds subject to the state's right of escheat. Thompson on Corporations, sec. 2391. In 23 A.L.R. 1233, the New York Court of Appeals held that under the facts in that case neither an entry upon the lands nor the judgment of a court was necessary to consummate the title of the state under an escheat. There is an annotation to that decision, which shows the necessity of a judicial proceeding in order to divest the corporation of the property, and shows that until the state does take action, no one else has a right to complain, and that after the state takes action all interest of the corporation in the lands is terminated. 14A C.J., p. 563, sec. 2502.
The appellee vigorously urges that under Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468, the Sisters of Mercy acquired a resulting trust in this property upon the date of the death of Mrs. Mary Botto and by virtue of section 2, chapter 194, Laws of 1926, the title to this property became validated in the Sisters of Mercy. This Act was approved March 15, 1926. The record in this case shows that the vows taken by Miss Wood, in religion Sister Imelda, were the "simple perpetual vows." Cathecism Religious Profession, p. 59, sec. 163: "A religion of simple vows may be abdicate gratuitously the dominion over his property by a voluntary deed of conveyance." This being true, the status of Miss Wood as a member of this order is that she can take title but cannot dispose of the title or the other property without the permission of her legitimate superiors. Under the findings in the Maas case and under the rules, vows and obligations set forth in the exhibits to the bill of complaint, all of these acts from the filing of the proceeding in the chancery court of Adams county, Mississippi, to be declared the owner of the property down to the final conveyance to the diocesan Bishop and his successors in office must all be presumed as acts dictated by her legitimate superiors. On March 15, 1926, sec. 2, chap. 194, Acts of 1926, was approved. This section validates "Title to all real property now owned by any religious society." Could the Sisters of Mercy at any time between October 31, 1925 and March 15, 1926, have gone into a court of equity and forced a conveyance of this property to the order? We answer both of these questions in the negative. In People v. Logan Square Presbyterian Church, 94 N.E. 155, 249 Ill. 9, the court held that an act providing that Church property "owned" by the congregation shall be exempt from taxation did not exempt land held by the congregation under a contract for a deed. State v. Lowry, 77 N.E. 728, 4 L.R.A. (N.S.), 528, 9 Ann. Cas. 350.
L.T. Kennedy, also filed a brief for appellants and argued the case orally.
F.H. F.J. Lotterhos and Chambers Trenholm, for appellants, Frank J. Julienne et al.
Miss Wood had disposed of and divested herself of the expectancy in Mrs. Botto's estate in favor of the religious society as well as her expectancy in any other property that might thereafter come to her; and according to the laws and public policy of the state, the religious society cannot take or enjoy the property coming to it by way of a resulting trust through its acquisition of such expectancy. The effect of this is obvious, that at the death of Mrs. Botto the title to her property would have been left in the clouds since Miss Wood had no title for herself, and the one who would have had the title through her, under the law, could not take it. It is a well-known principle that title must always be vested somewhere, in some one, and it is impossible under our jurisprudence for it to be in abeyance. Equity is never without power, means and inclination to declare the lawful devolution of the title.
The court's attention is respectfully invited to the cases upon the points, as follows: That Miss Wood could not inherit for her own benefit. Maas v. Sisters of Mercy of Vicksburg, et al., 135 Miss. 505, 99 So. 468; Order of St. Benedict v. Steinhauser, 234 U.S. 640, 58 Law Ed. 1512. The public policy of Mississippi as respects the acquiring and ownership of land by religious societies. Sections 269 and 270 of the Constitution of Mississippi prohibiting devises and bequests to religious societies. Sections 3378 and 3379 of Hemingway's Code prohibiting devises and bequests to religious societies. Section 4110 of Hemingway's Code, limiting within narrow bounds the property that may be owned or held by religious societies. Barton v. King, 41 Miss. 288; Tatum v. McClellan, 50 Miss. 1; Blackburn v. Tucker, 72 Miss. 735; 2 Wharton, Conflict of Laws (3 Ed.), p. 1321; Minor Conflict of Laws, sec. 70, p. 138; Mitchell v. Wells, 37 Miss. 235. That Miss Wood, by virtue of the disposition of her expectancy to a religious society, will be treated as eliminated from the statutes of descent and distribution. Donnolly's Estate (Cal.), 58 P. 61, 25 R.C.L. 1052. Section 1521 of Hemingway's Code giving the right to the state to escheat if an intestate "leave no heir capable of inheriting." Read v. Manning, 30 Miss. 308. That a trust in favor of a religious society, being contrary to public policy, fails, and the title rests with the grantor or the heirs of the decedent or devisor. Lusk v. Lewis, 32 Miss. 297 (3 Geo.); Lewis v. Lusk, 35 Miss. 401, approving Lusk v. Lewis, supra; Brien v. Williamson, 7 How. 14; Tatum v. McClellan, 50 Miss. 1; Bynum v. Bostick, 4 Dessaus (S.C.) 266; Hinds v. Brazealle, 2 How. 837; Stevens v. Ely, 1 Dev. Eq. R. (N.C.) 493; Huckaby v. Jones, 2 Hawks (N.C.), 120; Muckleston v. Brown, 6 Ves. Jun. 52, 31 Eng. R. 934; Corbyn v. French, 4 Ves. Jun. 418, 31 Eng. R. 213; Strickland v. Aldridge, 9 Ves. Jun. 516, 32 Eng. R. 703, 3 Mews. Digest (2 Ed.), 1354; Sweeting v. Sweeting, 12 W.R. 239; Jackson v. Jackson, 7 Johns (N.Y), 214; Yates v. Yates, 9 Barb. (N.Y.) 324-334; Orr v. Hodgson, 4 Wheat 453, 4 Law Ed. 613; 26 R.C.L. 1216 and 1232; 39 Cyc. 170; 2 Co. Litt., 206 B.N., 99, 4 Kent. 130. The chancery proceeding declaring Miss Wood the heir of Mrs. Botto is not conclusive on appellants. Craft v. Homochitto Lumber Co., 141 Miss. 156, 106 So. 440. Supplementing the cases to the effect that statutes of descent will be applied to carry out the public policy we refer to Goodyear v. Brown (Pa.), 155 Pa. 514; Clark v. Board (Okla.), 161 P. 791; Romaine v. Chauncy (N.Y.), 14 L.R.A., 714. The law of civil death, 11 C.J. 795, to the effect that civil death is the status of a person who although possessing natural life has lost all his civil rights, and as to them is considered dead. Chase's Blackstone (3 Ed.), sec. 132, stating that civil death commenced if any man was banished, or abjured the realm, by the process of the common law, or entered into religion. Troup v. Wood, 4 Johns Ch. (N.Y.) 228, 248; Platner v. Sherwood, 6 Johns Ch. (N.Y.), 118, 128. Donnolly's Estate, supra, where the various definitions of civil death appear. It is not contended that the doctrine of civil death prevails generally; but it is suggested that the principles applicable to civil death must apply to situations where, by reason of contract, status, or condition, law and public policy visit upon a person a limitation or prohibition which would have been the same under the principles following civil death at common law, such as, the contract and status of the member of the religious society in this case, inheritance by aliens, etc.
History of Mortmain, 11 Reeves, History of English Law, 65, where a very interesting and comprehensive explanation of the Mortmain or De Religiosis Statute is to be found, showing clearly the purpose to prevent the taking and holding of lands by religious institutions. 17 English Statutes at Large, 82, where the statute of 9 Geo. 11, ch. 36, is set forth. Not to escheat where there are heirs competent to take. Hemingway's Code, sec. 1594. Connolly v. Probate Court (Idaho), 136 P. 205, holding that first cousins inherited as against the state, where the nearer kin was a nonresident alien. Sherman v. People, 154 N.Y.S. 484. In re Sullivan's Estate (Wash.), 94 P. 483, holding against the state in favor of cousins and that it is not the policy of the state to absorb private property if legal heirs of a decedent are discovered. State v. American Colonization Society (Md.), 104 A. 120, holding that, where a trust was declared void as a perpetuity and the grantor died leaving a will and heirs, the land does not escheat. Orr v. Hodgson, 4 Wheat, 453, 4 L.Ed. 613, holding that nieces of intestate should inherit where grandchildren could not inherit because of alienage, and that the land did not escheat to the state. Jackson v. Jackson, 7 Johns (N.Y.) 214, to the effect that lands did not escheat in consequence of the alienism of the infant heir, but went to the next collateral heir. Succession of Mager, 12 Rob. (La.) 584, 589, to the effect the state can only take where there is no one entitled to an inheritance. 21 C.J. 850, declaring that where an attempted devise or bequest is ineffectual to pass title, to justify an escheat, decedent must have died, intestate without heirs, and if any legal heirs are discovered, however remote, the property does not escheat. If the immediate heirs are not qualified to succeed to the estate, as in the case of aliens at common law, yet if there are any persons legally qualified, the estate will pass to them and not escheat.
We respectfully suggest that the demurrers to the cross-bill should be overruled, and the principles of this case settled in accordance with the foregoing.
Watkins, Watkins Eager, for appellees, Rev. Gerow and Sisters of Mercy.
The property involved would not escheat to the state although the Sisters of Mercy acquired the same in violation of law. Miss Emma Wood, known in religious circles as Sister Imelda, joined the Sisters of Mercy; she entered into a contract, that in consideration of her keep, all the property with which she might become vested, whether by inheritance or otherwise, inured to the benefit of the community, and that she held nothing but the bare legal title which itself was in trust for the Sisters of Mercy. In making this argument, we are, for the purposes thereof, and for the purposes thereof only, going to concede the ultimate fact alleged, that is to say, that the legal consequences followed her membership in such order as are described and set out in the Maas case. We respectfully submit that even if it be true that upon October 14, 1925, when Mrs. Botto died and this property descended to Sister Imelda, by reason of her contract with the Sisters of Mercy, it became the property of such Sisters of Mercy, and she held merely the naked title for the benefit of the community, and that, at that time, the Sisters of Mercy was without authority to own commercial property, such as is here involved, yet, the appellant is not entitled to any relief and the original bill of complaint as amended was correctly dismissed.
In Board of Supervisors v. Stritze, 70 Miss. 320, it appeared that the board of supervisors of Quitman county acquired property not authorized by law. The court held, however, that the title was not void but only voidable. The doctrine was re-examined and re-affirmed in Taylor v. Alliance Trust Co., 71 Miss. 694. And see Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; Wall v. Darby, 132 Miss. 93, 95 So. 791.
There could be no forfeiture for excessive ownership. No escheat. The law of escheat in England grew out of the feudal system and was based on an English statute. 21 C.J. 848; Note 15 L.R.A. (N.S.) 379. In Boarman v. Catlett, 13 S. M. 149, our supreme court used the following language: "When the Mississippi territory was organized, the ordinance secured the inhabitants in the enjoyment of judicial proceedings, according to the course of the common law. Toulmin Dig., 473; 1 Laws U.S. 475. This, together with the provision in the Constitution of 1817, Schedule sec. 5, has been considered to exclude all English statutes, and to adopt only the common law, and the statutes of our own government, for the determination of the rights of the citizen." See Morgan v. Reading, 3 S. M. 399. The law of escheat of property in Mississippi is statutory. Sec. 1521, Hemingway's Code 1917. It is perfectly palpable that there is no provision in the state of Mississippi for escheating land other than is provided in the aforementioned section, which does not include the present controversy. There will be no forfeiture unless positively required by statute. Sec. 4110, Code 1917, sec. 934, Code of 1906. It will be noted that while the statute limits the property which a religious corporation may own, it provides no forfeiture or penalty for a violation of the act. State ex rel., Attorney-General, v. Edw. Hines Lumber Co., 106 Miss. 780, 64 So. 729, was a case in which the said lumber company had acquired large tracts of timbered lands in violation of the statute of Mississippi. As to a domestic corporation, the statute provided that a forfeiture should take place to the state in such case, and for an escheat to the state. The chapter did not specifically so provide as to a foreign corporation, and while there was a palpable violation of the law and public policy of the state, the court held that no such remedy having been provided by the statute prohibiting the ownership of the property in question, the court would not forfeit the property. The same principle was illustrated in Simmons v. Calloway, 138 Miss. 669, 103 So. 350; See also, People of California v. Stockton, 133 Cal. 611, 65 P. 1078, 85 A.S.R. 225; Commonwealth of Pennsylvania v. R.R. Co., 7 L.R.A. 634; Long Beach Canning Co. v. Clark, 141 Miss. 177, 106 So. 646. It is a very interesting fact, to which we direct the attention of Your Honors, that chap. 162, Laws of 1912, sec. 4117 et seq., Hemingway's Code, prohibits a corporation from acquiring agricultural lands for agricultural purposes. Section 4121 provides the remedy. There is no remedy of forfeiture provided, the exclusive remedy being that the corporation shall be wound up and its assets distributed among stockholders after paying the debts, in the manner provided in sec. 5 of the Act, being sec. 4121 of Hemingway's Code. We cannot find any statute in the state of Mississippi forfeiting the property of a corporation for any purpose whatsoever. Even if lands are held by a corporation in violation of law, the state has no right of forfeiture unless expressly provided by statute. This rule grows out of the repugnancy which the court feels to forfeiting property. Counsel cite the case of Wisconsin Lumber Company v. State, 54 So. 247, 97 Miss. 471. In that case the court was dealing with sec. 5237 of Hemingway's Code. By the express terms of the statute the land was subject to forfeiture to the state for a violation of the terms thereof. This court, however, while holding that the land should be escheated to the state, owing to the fact that in a previous decision the court had held otherwise, the decision had become a rule of property, declined to forfeit and escheat to the state the property of the Wisconsin Lumber Company, although by the mandatory provisions of the state the property was forfeited. Nothing contrary was held in Gunter v. City of Jackson, 94 So. 842, 130 Miss. 686. Counsel cite Louisville Ins. Co. v. Commonwealth, 143 S.W. 1044, and Louisville School Board v. King, 15 L.R.A. (N.S.) 379. Those cases rested on the Kentucky Constitution and statutes passed in pursuance thereof, which provided in positive terms that if any corporation should own property in excess of that permitted by its charter and such ownership should continue for a period of more than five years, the property should be escheated and the proceeds thereof used for educational purposes. The case of Comptroller of the City of New York, 23 A.L.R. 123, cited by opposing counsel, was a case where land was being forfeited because the decedent had no heirs. If it be true that the land in question vested in the Sisters of Mercy by reason of any contractual relation existing between it and Sister Imelda then, in that case, the Sisters of Mercy acquired the property prior to April 1, 1926, and the title was confirmed by chap. 194, Laws of 1926. The Act of 1926, referred to, was passed in order to obviate certain legal difficulties in which various religious denominations found themselves. As these societies and associations grew and became more useful, increased their endowments, etc., and enlarged their missionary and educational programs, a more extensive ownership of property, real and personal became necessary, which brought about the various and sundry cases hereinbefore set out, showing the contest which was taking place between religious organizations asserting exemptions to property found to be necessary and useful for carrying on their religious and educational work but actually in excess of legislative power. This court announced the rule that no religious society could claim any property as exempt from taxation owned by it in excess of its corporate powers. These decisions not only denied to such associations the exemptions which they sought, but in doing so cast a cloud upon their title to such property so owned. These various associations went before the legislature in 1926 and endeavored to get the exemptions enlarged, and, failing in their effort in that respect to the extent desired, obtained the foregoing act. The act was evidently the result of a legislative compromise.
Authority of the legislature and the state of Mississippi to pass chapter 194, Mississippi Laws of 1926. The question is illustrated in Insurance Company v. Edwards, 85 Miss. 322. See Commonwealth of Pennsylvania v. R.R. Co., 7 A.L.R. 634.
Subsequent to the filing of the original bill of complaint, counsel are confronted with the Act of 1926, and in order to obviate the effect of the same, they make certain interlineations in the bill of complaint to the effect that the Sisters of Mercy did not acquire any interest in the property until August, 1926, upon which date, Sister Imelda secured a decree of the court adjudging her to be the heir at law of Mrs. Botto. This view, however, was not urged at the hearing of the case, is not pressed now in brief of counsel, and we take it that it has been abandoned. It is perfectly apparent that Sister Imelda, being next of kin of Mrs. Botto, became vested with her property when Mrs. Botto, died in October, 1925, Mrs. Botto having died intestate. Then counsel, take a different position, totally inconsistent with that taken in the original bill of complaint. Their position in respect thereto is that although Sister Imelda was a member of the Sisters of Mercy, and sustained to it the relation alleged in the original bill of complaint, that since the property in question was property which the Sisters of Mercy was incapable of taking in October, 1925, therefore it could not have maintained a bill for specific performance against Sister Imelda, and therefore never acquired any interest in the property in question until the execution of the deed by Sister Imelda to Bishop Gerow as Trustee in August, 1926. The position of counsel is in direct conflict with Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468. That was a case in which a man, separated from his wife, devised to certain Sisters of Mercy, individually, real estate owned by him. There will be no contention made that the real estate devised to the particular sisters in that case was such property as it was permitted to hold. Upon the other hand, the record discloses that the property was residential and commercial property. Your Honors held, however that a devise of the property to the particular Sisters of Mercy was a devise to the Sisters of Mercy itself; that it, by reason of the last will and testament and the vow of the Sisters, became the substantial owner thereof. If counsel's position is correct, then the Maas case was wrongly decided. That is to say, the Sisters of Mercy could never have compelled the Sisters by specific performance to transfer the property to it; therefore, the sisters would have held and owned the property themselves.
It is the position of opposing counsel that when Sister Imelda joined the order of Sisters of Mercy, she surrendered her own personal will to that of her superiors, and that, therefore, she was subject to their directions. That being true, in April, 1926, when the act in question was passed, even if the Maas case be wrong, and even if it be true that the Sisters of Mercy could not, by specific performance, have acquired title to the land from Sister Imelda, yet, according to the allegations of the bill, she was subject to the direction of her superiors, and would have made the deed at any time such course was required of her. Certainly then, according to the allegations, of the bill, the Sisters of Mercy was the beneficial owner of the land in April, 1926. It could have required a deed at any time it desired. If it be true, as now argued by appellant's counsel, that the Sisters of Mercy could not have required the conveyance of the property inherited by Sister Imelda to it, then in that event, the property remained hers, and she was free to make such dispositions of it as she saw fit. This would necessarily bring about an affirmance of the case. The appellant is not entitled to a decree directing the property to be sold.
The court, in dealing with the proposition to entertain a presumption on the part of Bishop Gerow of good faith, certainly would not order the property sold and take the same out of the hands of the trustee in the absence of a suggestion of some abuse of the trust or wrongdoing. There is no hint or suggestion in the bill that Bishop Gerow will do other than in good faith convert the real estate into personalty and apply it to the purposes of the trust. Wherry v. Latimer, 103 Miss. 524, 60 So. 563. The original bill of complaint was filed upon the theory that the Sisters of Mercy took the property upon the death of Mrs. Botto, and that it was prohibited by the laws of the state from taking the same, and that, therefore, the property escheated to the state, and that the state would be defrauded out of the property if the Sisters of Mercy should sell the same to some private persons. The bill alleged that it had the right to do so. The trouble about appellant's case is that it has changed horses in the course of the ride, and counsel are having difficulty in adjusting their theories to the actual facts in the case as shown by the pleadings and exhibits thereto. If ever Bishop Gerow, acting under the instructions of the alleged higher ecclesiastical authority, shall for an unreasonable time, fail to convert this property into personalty, then, if the Sisters of Mercy, did not become the owner of the property in October, 1925, in accordance with the rule announced in the Maas case, in such event, it might be very well for the attorney-general to intervene, though we submit that in such case, only Sister Imelda or the Sisters of Mercy would have any interest therein. But certain it is that in any event, a full and fair opportunity should be given to this trustee to convert the property into personalty, and the court should not take jurisdiction to order and direct a sale of the property at the instance of the appellant, when it appears from the allegations of the appellant's bill that Bishop Gerow, trustee, was in the act of doing that very thing which appellants now ask that they be permitted to do.
Martin Byrnes, also filed a brief in behalf of appellee Miss Emma Wood (Sister Imelda).
The cross-bill filed by Frank J. Julienne and others alleges the death of Mrs. Botto in October, 1925; that Miss Emma Wood, one of the appellees herein, known in the religious world as Sister Imelda, was a first cousin of the decedent, the cross-complainants being second cousins. The bill further alleges that Sister Imelda, who was otherwise the next of kin of Mrs. Botto, was incapacitated to inherit by reason of the fact that she was a member of the Sisters of Mercy. The bill is predicated upon the theory that Sister Imelda, being incapacitated to take the property because the Sisters of Mercy was prohibited by law from acquiring or owning such property, that therefore the same could not descend to Sister Imelda, the next of kin of Mrs. Botto; and that, therefore the property would descend to the second cousins, who are the cross-complainants in the case. The bill further sets out that in August, 1926, Sister Imelda procured herself to be adjudged the heir at law of Mrs. Botto and that such proceedings are void and not binding on the cross-complainants. A demurrer was filed to the cross-bill by Bishop Gerow and by the Sisters of Mercy. A further demurrer was filed by Sister Imelda through her own counsel. The respective demurrers were sustained, and the cross-bill dismissed; wherefore, this appeal is prosecuted.
According to the allegations of the cross-bill, Sister Imelda was the next of kin, to the decedent, who died intestate, and was the person to whom her property, under section 1448, Hemingway's Code of Mississippi 1927, descended. Appellants' counsel are seeking to engraft an exception on the statutes of descent and distribution in the state of Mississippi. Chapter 19, Hemingway's Code 1927, contains all the statutory law on the subject in the state of Mississippi.
Section 1459 of said Code, being section 1392, Mississippi Code of 1906, provides the only prohibition and incapacity to inherit property, said section providing that no person shall inherit from another where such person causes or procures the death of another in any way. Counsel are endeavoring to have another exception written into the statute. This court has decided that no exception shall be engrafted upon the laws of descent and distribution. Williams v. Lee, 130 Miss. 481, 94 So. 454, 28 A.L.R. 1124. The question of distribution and descent in Mississippi is statutory, and the courts cannot disturb these rules of descent by adding to the statutes something that the lawmakers have not written there. Sister Imelda was the next of kin and heir at law of Mrs. Botto. According to the statutes of the state of Mississippi which have been in force for many years, on the death of Mrs. Botto, title to the property was cast upon her. We have cited in our brief on the main appeal a long list of authorities going to show that if property is acquired by a corporation in excess of that which is permitted by law, it still takes title to the property, may transmit the same to an innocent purchaser for value, and only the state can complain. The cross-complainants, whom we shall term cross-appellants, in this case are not the state, do not represent the state, and have no right to question this title. Statutes of Mortmain not involved. Counsel for cross-appellants discuss this case as if there was a will before the court for construction. The Mortmain Statutes of the state of Mississippi deal only with wills and bequests, and in no sense limit the rules of descent and distribution, or property which may pass by deed. Counsel for cross-appellants cite no case in point. Most of the decisions referred to are those dealing with wills, that have no kind of bearing upon this case. Barton v. King, 41 Miss. 288; Tatum v. McClelland, 50 Miss. 1; Blackburn v. Tucker, 72 Miss. 735; Lewis v. Lusk, 35 Miss. 401, and numerous other cases from other states, cited in brief of counsel for cross-appellants.
Counsel for the cross-appellants take the position that in effect Sister Imelda became civilly dead, therefore, was incapacitated to inherit property, and that the title descended to the second cousins. We have no such thing in Mississippi as "civil death" which was a creature of common law, depending upon old English statutes, none of which ever became in force in the state of Mississippi, 9 R.C.L. 45; 11 C.J. 795. It is conceded in this record that Sister Imelda, upon becoming a member of the Sisters of Mercy, has devoted her life to an order which has been engaged in the alleviation of the suffering of humanity; that it is an order which, in order to relieve suffering in every form, without regard to race, color or religious creed, has followed in the wake of storms, pestilence and fire; and that the countless deeds of mercy and charity of these old Sisters is a part of the history of our great state. In every great catastrophe, in every great epidemic, in every period of trouble, the noble women belonging to this order have forgotten themselves, and given their unstinted time to suffering humanity. This Sister has suffered complete self-affacement; she has given her life and everything in order that she might find it again. For that the cross-appellants ask this court to hold that she is in the same category as a person committing some heinous and felonious crime; some person unworthy to be regarded as a human being; some person who has been outlawed, and unfit for the law to throw its protection around. Any such conclusion is unsupported by authority; reason abhors it; and common justice proclaims against it; the chancellor who tried this case in the court below said he would have none of it.
Brunini Hirsch, for appellees.
Conceding for the present, and for the sake of the argument that the state's theory is correct, there is, in our opinion, a complete defensive answer. The Mississippi legislature in its last session, Chapter 194, page 305, amended section 934 of the Code of 1906, enlarging the property that religious societies might hold and own. After enumerating the property which might so be held and owned, validated the title to any additional property that a religious society might then own. While the legislature validated the title to additional property the religious societies then owned it made it very clear that the property in addition to that enumerated should not be exempt from taxation as is the case with that enumerated. It did so by section 3 of the act. Virginia, as is well known, has been exceedingly strict in its legislation and its courts equally strict in construing the legislation limiting the holding of property by religious societies. Collins v. Doyle's Ex'r (Va.), 89 S.E. 88, decided June 8, 1916, from that state is exceedingly illuminating, not only on the point we are now discussing, but in other points involved in this appeal. Sarah Collins, the heir at law of the decedent, by her cross-bill, contended that the beneficiary under the will was only permitted by its charter to own and hold property, real and personal of the value of thirty thousand dollars and it was admitted that with the Doyle property would augment the amount of its holdings far beyond the thirty thousand dollars. Subsequent to the death of the testatrix, the legislature of the state of Virginia amended the charter of the asylum so as to authorize an increase in the amount of property which it might lawfully hold, that more than covered the added value of the estate in controversy. On the right of the legislature to pass the curative or validating act the court used this pertinent language: "This legislation according to the authorities, condones the original offense, if, indeed, offense there was, and validates a previously voidable transaction." The opinion in the Virginia case announces other principles which are in consonance with our own views and are applicable to our subsequent points. Mrs. Botto did not violate any law, nor did Sister Imelda, Miss Emma Wood, nor did the Sisters of Mercy, nor did Bishop Gerow, the trustee. The state's contention should have been reversed. It should have complained of the failure to violate the law. At every turn the state was balked, because in the final analysis it found that everything that was done, was in strict accord with the law of the state. The state thought it had a case similar in facts to the case of Maas v. Sisters of Mercy, 135 Miss. 505. In the case at bar there is no will involved. Miss Emma Wood made a deed. She in no way violated the Mortmain Statutes of the state, nor any other statute. The only semblance of a toe-hold that the state has in all of its pleadings is its charge that the Sisters of Mercy, a corporation, acquired the Botto property which "is commercial and residential property not used by said Sisters of Mercy for any of the purposes set forth in said section (section 934 of the Code of 1906), as amended." But this position is wholly untenable for the reason that the corporation did not acquire and possess this commercial and residential property. Mrs. Botto owned considerable property. She departed this life in the latter part of October, 1925. She made no will. In other words, she died intestate. If she had made a will violating the Mortmain Statutes of the state, the only person who would have had a right under our law to complain was Sister Imelda, Miss Emma Wood, her sole heir. This ends the applicability of Maas case. On the death of Mrs. Botto, as aforesaid, she inherited the property of Mrs. Botto. There is no law in Mississippi, or anywhere else that interrupts or prevents this inheritance. It is our understanding that there is only one case in which our law prevents an inheritance, and that in the case where a person who has killed another, in which event the murderer cannot inherit from his victim. Sister Imelda, in acquiring the Botto property by inheritance did so under the laws of descent of the state of Mississippi. On the 20th day of July, 1926, in a proceeding instituted by Sister Imelda for that purpose, she was declared to be the nearest of kin and sole heir of Mrs. Botto. Under the law she had a perfect right to do so. There was no claim by any one at any time that she was not the nearest of kin and sole heir of the deceased; nor did the Sisters of Mercy interpose in that proceeding a claim that while Sister Imelda was the nearest of kin and sole heir of Mrs. Botto, that it, the Sisters of Mercy, acquired the property by virtue of the alleged contract between Sister Imelda and itself. No one raised a voice in protest.
On the 9th day of August, 1926, Sister Imelda conveyed the major part of the real estate which she had acquired from Mrs. Botto to Bishop Gerow as trustee, with specific directions to sell and pay over the proceeds to the Sisters of Mercy, a corporation. The Sisters of Mercy made no protest against this act of Sister Imelda. The state contends that "the said deed is simply a device to avoid the laws of the state of Mississippi and the public policy thereof preventing religious corporations from holding and owning and using property of the kind and character of the property conveyed by said deed." The deed, itself, refutes this charge. It does not provide for the holding and owning and using the property, but, on the contrary, it provides for the sale of the property by the trustee and the paying over of the proceeds to the Sisters of Mercy. There is no charge anywhere that it was the purpose of any of the parties to the deed of conveyance to disregard its provisions. Bishop Gerow, as is shown by the allegations of the complaint, was in the active performance of the trust imposed upon him and for that reason the state induced the Chancellor to take the property out of his hands and place the same in the hands of the receiver appointed without notice to any one of the parties to the deed of conveyance. There is nothing in the law of the state of Mississippi that disqualifies a religieux from occupying the position of trustee in an instrument of conveyance. The state has no right to complain that Sister Imelda didn't perform her part of the contract. The only one who could complain of the violation of her alleged contract was the Sisters of Mercy itself. The state had no power to compel the Sisters of Mercy to take this real estate in violation of its own laws. Pomeroy in the 4th Edition of his work "Equity Jurisprudence" in considering the fundamental principles or maxims of equity, Volume 1, section 364, lists as the first maxim of equity the following: "Equity regards that as done which ought to be done." Pomeroy, secs. 371, 161; 13 C.J. 850 et seq.; 6 R.C.L., secs. 1065 and 1067; Mahorner v. Hooe, 9 S. M. 247; Hardee v. Cheatham, 52 Miss. 41; Caldwell v. Willis, 57 Miss. 555. The decision in the last case was by Mr. Chief Justice GEORGE. On page 575 in the opinion, he says: "Both sides concede that the direction to sell the land makes it personalty." "Even though a corporation is without capacity to take a devise of lands it may take a gift of personalty raised by conversion of land under a power in a will." 17 R.C.L. 563. For trust for benefit of corporation and equitable conversion, see 2 Fletcher, Cyclopedia Corporations, 2052. Chambers v. Higgins, 20 Ky. 1425, 49 S.W. 436; In re Dooper's Will, 212 N.Y.S. 616; West Virginia Pulp Paper Company v. Miller, 176 Fed. 284. Writ of certiorari denied 250 U.S. 619, 55 L.Ed. 612.
In West Va. v. American Baptist Home Mission Society, 37 A.L.R. 200, the court said: "The law seems to be well settled that where a corporation exceeds its powers in the purchase of land that fact does not prevent title thereto from passing to the corporation; and until such title is attacked by the state the corporation may transfer its title to another." "Through the equitable title obtained by the board of Ministerial Relief might have been a defeasible one subject to be attacked by the state, yet they could convey an indefeasible title before any such attack by conveying to a party, who could own the land, and this was what occurred in this case." Wall v. Darby, 95 So. 791. The authorities all hold that the corporation has the right to hold and own the property until the state complains and to dispose of it in the meantime. Section 934, as amended by the Acts of 1926, provides that religious societies can own certain property and no other. There is no specific penalty prescribed for a violation of this statute. In the chapter on "Corporations," sec. 903, Code of 1906, fixed a limitation on corporate holdings. The section imposed a penalty on the offending corporation, to-wit: "Shall forfeit its charter and shall also forfeit to the state all real estate held above that which it may lawfully hold." The imposition of the penalty in one instance and not in the case of a religious society makes it evident that no specific penalty was intended to be imposed upon religious societies for exceeding in their holdings the property enumerated in section 934 and the amendment thereto. In State v. Hines Lumber Company, 106 Miss. 780, court held that the penalties imposed by section 903 of the Code of 1906 did not apply to foreign corporations. In Union Bank v. Matthews, 98 U.S. 621, 25 L.Ed. 188, the supreme court of the United States in passing upon section 5137, limiting the holdings of real estate by national banks and the cases where mortgages may be taken, said: "The statute does not declare such a security void. It is silent upon the subject. If Congress so meant, it would have been easy to say so; and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Where usurious interest is contracted for, a forfeiture is prescribed and explicitly defined." "Where a bank is limited by its charter to a specified rate of interest but no penal consequence is denounced for taking more, it has been held that a contract for more is not wholly void." Bank v. Sharp, 4 S. M. (12 Miss.) 75; Bank v. Archer, 8 S. M. (16 Miss.) 151; Bank v. Sherwood, 10 Wis. 230. Chapter 162, Laws of 1912, prohibiting the acquisition by corporations of agricultural lands was construed in Middleton v. Georgetown Mercantile Company, 117 Miss. 134. Chapter 117 of Code 1906 relates to the remedy of quo warranto in the name of the state. The offenses for which the remedy will lie are enumerated in section 4017 of the Code of 1906. It is our opinion that the fifth item thereof would cover the case of a corporation acquiring and holding property not permitted by the laws of the state. Collins v. Book Stationery Co., 115 Miss. 254; 3 Fletcher, Cyclopedia Corporations, 2584; Collins v. Doyle (Va.), 89 S.E. 88.
Escheat, chap. 44 of Code of 1906, covers this subject. Section 1878, "If any person die intestate, seized of or holding either in possession or in right, at the time of his death, real or personal property, or money or choses in action whether such person were a citizen of the state or not, and leave no heir capable of inheriting the same, all such property shall escheat to the state." It will be observed that there is no power in the attorney-general or the district attorney to institute escheat proceedings in the name of the state. There is no specified penalty prescribed for a violation of section 934 of the Code of 1906. There is nothing which makes the real estate which the corporation is not entitled to own escheat to the state, or to any one else. Even in the Agricultural Act of 1912 there was not even a forfeiture prescribed. The penalty was to dissolve the corporation, pay up the debts and distribute the balance among the stockholders after paying the costs, etc. As we have heretofore pointed out, the remedy is by quo warranto.
Cross-bill of the Juliennes. The Juliennes have no right to intervene in the cause, nor are their rights concluded by whatever decree may be rendered in such case. If Sister Imelda had died a natural death, the Juliennes would have inherited the property from Mrs. Botto, but unfortunately for them, Sister Imelda was alive at the date of the death of Mrs. Botto. They have no interest in this suit because the fact stands out that Sister Imelda did inherit the Botto property.
Argued orally by L.T. Kennedy, Chas. F. Engle, F.H. Lotterhos and E.L. Trenholm, for appellant, and Wm. H. Watkins, W.T. Martin and Jno. Brunini, for appellees.
Appellant, the state, on the relation of the attorney-general, filed its bill in the chancery court of Adams county against appellees the Sisters of Mercy of Vicksburg, Right Reverend Richard Gerow, Bishop of the Catholic Diocese of Natchez, Miss Emma Wood, whose religious name is Sister Imelda, and appellants Frank J. Julienne, Louis N. Julienne, Paul Julienne, Adolph L. Julienne, Harriett Julienne, W.S. Profilet, and Mrs. Louis J. Snelling to escheat to the state a considerable amount of valuable real estate situated in the city of Natchez, upon the ground that it was being held by the said Sisters of Mercy in violation of the laws and the public policy of this state. Appellees demurred to the bill, which demurrer was by the court sustained. The other appellants, who, for convenience, will be referred to as "the Juliennes," answered the bill and made their answers a cross-bill which cross-bill was demurred to. The court sustained the demurrer to the cross-bill. The result of the action of the court on the demurrers to the original bill and the cross-bill was a decree dismissing the original bill and the cross-bill. From that decree appellant the state prosecutes an appeal, as also do appellants the Juliennes. Pending the litigation a receiver was appointed to take charge of and conserve the property involved. The decree of the court dismissing the original bill and cross-bill discharged the receiver.
The facts in the case are undisputed. They are embodied in the pleadings and the exhibits thereto. It was alleged in appellant's bill as finally amended, substantially as follows: That on the 31st day of October, 1925, Mrs. Mary Q. Botto died intestate, leaving an estate consisting largely of real estate situated in the city of Natchez, in Adams county, in this state. Appellee Miss Emma Wood, known in her religious life as Sister Imelda, Mrs. Botto's nearest of kin (a first cousin), is her sole surviving heir, having been so declared by a decree of the chancery court of Adams county on the 20th day of July, 1926. Appellee the Sisters of Mercy of Vicksburg is a society incorporated under the laws of this state. Miss Wood, or Sister Imelda, was a member. As such she had taken all the vows and obligations required of her by the laws of the society, and of the Catholic Church, of which the Sisters of Mercy is a part, among which are the vows of poverty and obedience, and that all property of whatsoever kind she might acquire in any manner should inure to the benefit of and become the property of the society, the title thereto to be held by her as trustee for the society. The bill charged that such vows and obligations constituted a binding contract between her and the society of which she was a member, and that this court had so held in Maas v. Sisters of Mercy, 135 Miss. 505, 90 So. 468.
On the 9th day of August, 1926, appellee Sister Imelda conveyed the larger part of the property of which Mrs. Botto died seized and possessed to appellee Bishop Gerow, and his successors in office, as trustee, to be held and disposed of in trust for the benefit of appellee Sisters of Mercy. That conveyance follows:
"In consideration of the sum of one ($1.00) dollar cash to me in hand paid, and other valuable considerations, the receipt of all of which is hereby acknowledged, I, the undersigned, Emma Wood, known in religious life as 'Sister Imelda,' do hereby remise, release, convey and forever quitclaim unto Right Reverend Richard O. Gerow, Bishop of the Catholic Diocese of Natchez, and his successors in office forever, as trustee, upon the conditions for the purposes hereinafter expressed, the property. . . .
"This conveyance is in trust and for the following purposes and the following conditions:
"First. That the said trustee, or his successor, or successors, in succession, in the office aforesaid, shall, with reasonable dispatch, proceed to sell and convey, either with or without warranty of title, the property herein conveyed, and, as the lots or parcels of land are so sold, the proceeds of sale shall be paid over to the Sisters of Mercy, a body corporate under the laws of the state of Mississippi, and having its domicile at Vicksburg, in said state, using his best judgment and discretion as to the price and terms of sale.
"Second. That, in the meantime, the said trustee shall manage and control said property, either directly, or through an agent, or agents, to be selected by him, and after paying the costs of maintaining said property in a reasonable state of repair, the taxes and insurance thereof, and such other expenses in the handling thereof, as may arise, the proceeds shall be paid over to the said Sisters of Mercy, monthly, quarterly, or semiannually, as he may find it convenient."
The bill alleged that the real estate conveyed by this deed was held by appellee Sisters of Mercy, in violation of section 934, Code of 1906 (Hemingway's Code 1917, section 4110); that the moving reason for such conveyance was the carrying out by appellee Sister Imelda of the vows and obligations taken by her, to hold all property coming into her hands in trust for the society. The bill sought to escheat the property to the state upon the ground that it was being held in violation of said statute. The bill alleged that there was danger of the property being disposed of by appellee Bishop Gerow in carrying out the trust conveyance to him by appellee Sister Imelda. The bill prayed, first for a forfeiture of the property to the state and, in the alternative, that it be sold and the proceeds turned over to those entitled thereto.
Appellants the Juliennes set up in their answer and cross-bill that they were the next of kin to Mrs. Botto, after appellee Sister Imelda; that the latter was a first cousin, and they were second cousins of Mrs. Botto; that they were entitled to inherit the property involved instead of Sister Imelda, for the reason that the latter, by virtue of the vows and obligations taken by her to the appellee Sisters of Mercy to hold all property coming to her for the benefit of such society, thereby divested herself of any right to inherit the property. In other words, that by virtue of such vows and obligations she had become dead in law and incapable of taking property by inheritance. As stated, the demurrers to the original bill and the cross-bill were sustained.
Section 934, Code of 1906 (Hemingway's Code 1917, section 4110), provides as follows:
"Any religious society or congregation or ecclesiastical body may hold and own, at any one place, the following real property, but no other, viz.:
"(a) A house or tenement for a place of worship;
"(b) A house or tenement for a place of residence for its pastor or minister;
"(c) A house or tenement appropriated and used as a school or seminary of learning for males;
"(d) And another house or tenement to be appropriated and used as a school or seminary of learning for females;
"With a proper and reasonable quantity of ground, in each instance, thereto attached; and
"(e) A cemetery of sufficient dimensions.
"(f) Any religious denomination may, in addition, own such college or seminaries of learning as it may think proper; and
"(g) A place of residence for its local clergyman in charge."
The property involved is in excess of that which, under the statute, appellee Sisters of Mercy was authorized to own and hold. That fact is unquestioned. The position of the state is that property so held by a religious society is forfeited to the state, while appellee Sisters of Mercy contends that no such forfeiture takes place, because none is provided by the statute. Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468, is not authority for the position taken by the state. In that case, the testator devised and bequeathed certain real and personal property to three members of the society of Sisters of Mercy. The widow and sole heir of the testator contended that in so disposing of the property our Mortmain Statutes, sections 5090 and 5091, Code of 1906 (Hemingway's Code 1927, sections 3578 and 3579), which are rescripts of sections 269 and 270 of the Constitution, were violated. Each of those statutes provides a penalty for its violation. The first section referred to provides, in substance, that all devises or bequests of lands to religious or ecclesiastical societies or associations of persons, either directly or indirectly, shall be void, "and the heir at law shall take the property so devised or bequeathed, as though no testamentary disposition had been made." The second section provides, in substance, that every legacy, gift, or bequest of money or personal property to any such religious or ecclesiastical society or association shall be void, "and the distributees shall take the property as though no such testamentary disposition had been made." The statute here involved contains no provision for forfeiture of title to the property held in violation of it. Does the forfeiture take place in the absence of such a provision in the statute? We think this question is answered in the negative by the decisions of our court as well as the courts of this country generally. The property held by a corporation in excess of that authorized by statute is not forfeited to the state unless it is expressly so provided in the statute. State v. Edward Hines Lumber Co., 106 Miss. 780, 64 So. 729; Quitman County v. Stritze, 70 Miss. 320, 13 So. 36; Taylor v. Alliance Trust Co., 71 Miss. 694, 15 So. 121; Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; Wall v. Darby, 132 Miss. 93, 95 So. 791; People v. Stockton, 133 Cal. 611, 65 P. 1078, 85 Am. St. Rep. 225; Commonwealth of Pa. v. Railroad Co., 132 Pa. 591, 19 A. 291, 7 L.R.A. 634; Collins v. Doyle's Executor, 119 Va. 63, 89 S.E. 88; West Virginia v. Baptist Home Mission, 96 W. Va. 447, 123 S.E. 440; 37 A.L.R. 200; Union Bank v. Matthews, 98 U.S. 621, 25 L.Ed. 188, 10 R.C.L. 607, 608.
It was held in Maas v. Sisters of Mercy, supra, that the constitution and by-laws of the Sisters of Mercy, requiring the members thereof to take vows of poverty and obedience, depriving them of the right to own property in their individual capacity, and making any property acquired by them inure to the benefit of the society, constituted a binding contract between the society and its members, while such members enjoyed the benefits of their membership, and that any property devised to a member of the society was thereby held by her in trust for the society. The state contends that under the authority of that case appellee Sister Imelda held the property here involved in trust for the benefit of appellee Sisters of Mercy. In other words, that the appellee Sisters of Mercy became the owner of the beneficial interest in the property, there being nothing outstanding except the bar legal title in the appellee Sister Imelda. We do not decide whether that be true or not, but if it were true, by chapter 194 of the Laws of 1926 (Hemingway's Code 1927, section 4525) the title to the property in appellee Sisters of Mercy was ratified and confirmed. It is provided, among other things in that statute, that the title to all real property now owned by any religious society, ecclesiastical body, or any congregation thereof, "be and the same is hereby validated and such society, body or congregation is authorized and empowered to continue to own the same or to convey or encumber the same." There is no constitutional objection to such a statute. It violates neither section 87 nor 88 of the Constitution. The legislature could have authorized in advance the ownership by religious societies any amount of real and personal property whatsoever, except such as might come to them by devise or bequest, which is prohibited by the Mortmain provisions of our Constitution and by the statutes enacted in pursuance thereof, as above shown. Furthermore, even if it be true that, under the authority of the Maas case, appellee Sister Imelda took the property involved as a mere trustee for appellee Sisters of Mercy, and if there were no statute confirming the title thereto in the latter, still there would be no forfeiture of the property to the state, as shown by the authorities already referred to. Appellee Sisters of Mercy would own the property with the right to convey it, although the title would be a defeasible one at the instance of the state. The state could force a sale of the property, but it could not take it from them.
The curative statute (chapter 194, Laws of 1926 [Hemingway's Code, 1927, section 4525]) was passed before the execution of the deed by appellee Sister Imelda to appellee Bishop Gerow, by the terms of which the property involved was conveyed by the former to the latter in trust for the appellee Sisters of Mercy, The conveyance was made August 9, 1926. The statute went into effect March 15, 1926. Therefore the curative statute could have no effect on the title of the property acquired by appellee Sisters of Mercy by virtue of that conveyance. By that conveyance appellee Sisters of Mercy got the beneficial interest in the property. Appellee Bishop Gerow was a mere trustee for the benefit of the society. It is true, as stated, the property was in an amount in excess of that authorized by the statute to be held by appellee Sisters of Mercy, but as shown above, under the law no forfeiture resulted by reason thereof to the state, because the statute provided for none. Appellee Sisters of Mercy held a defeasible title to the property, it is true, but such a title it could convey.
It seems that what has already been said would preclude any right of appellants the Juliennes to inherit the property involved from the deceased, Mrs. Botto. Restrictions imposed by law upon a corporation as to the amount of property it may hold cannot be taken advantage of collaterally by private persons, but only by direct proceedings by the state which created the corporation. This principle applies to the next of kin as well as all other persons. Jones v. Habersham, 3 Woods, 443, Fed. Cas. No. 7465 (U.S. Circuit Court, 5th Circuit); Id., 107 U.S. 174, 2 S.Ct. 336, 27 L.Ed. 401.
We do not think there is any merit in the contention that if the state is not entitled to have the property involved forfeited to the state it has the right, under the allegations of the bill in this case, to retain jurisdiction over the trustee and force a speedy sale of the property. The conveyance from appellee Sister Imelda to appellee Bishop Gerow took place on the 9th day of August, 1926. Within thirty days thereafter the bill in this case was filed by the state. Its scope and purpose was not to force the execution of the trust by the trustee in that conveyance. The bill had no such object. It charged no breach of trust by the trustee. There is no intimation in the bill that the trustee would not speedily execute the trust according to the terms of the conveyance. On the contrary, it was alleged in the bill that appellee Bishop Gerow, the trustee, was proceeding to carry out the trust and convert the real estate into money and turn the proceeds over to appellee Sisters of Mercy, and unless restrained, he would accomplish that purpose. Under the law that is all the state had the right to ask. If the trustee should fail to carry out the trust by converting the real estate into money with reasonable expedition, it will be time enough for the state to move.
Affirmed.
PACK, J., took no part in this decision.
I am unable to agree with the statements made in the opinion of the majority of the court. I would not dissent were the opinion limited, as in my judgment it should be, to holding that the society was not authorized to hold the land embraced in the trust conveyance, and if the court had announced that it was the duty of the trustee to forthwith convert the land by sale into money. I will set forth my views upon the question, for I do not believe that the pronouncement, in some aspects of the case, in the majority opinion is anything more than obiter dictum.
I think Miss Wood, known in her religious life as Sister Imelda, was the sole heir of Mrs. Botto, that she inherited the property which Mrs. Botto owned at her death, and that there was no passage of the title to this property from her to the society; that she was the owner of the property in her own right at the time she executed the trust deed to the Bishop of the Natchez Diocese, but, because of the relations under the laws of the society and of the Roman Catholic Church, whose instrumentality the society is (to be hereafter noticed in this opinion), the bishop was not a suitable person to act as trustee in the said deed, because under the laws of the society and of the Roman Catholic Church both the grantor and the grantee were under duty to implicitly obey the bishop in all respects, and were not in position to challenge any action which the bishop might take with reference thereto. Under the trust deed there was a discretion left with the bishop as to when and upon what terms and conditions he would sell the property. In the meantime, he was to collect the rents from the property and appropriate same to the use of the society.
There is no such thing in the laws of this state as civil death, and notwithstanding the membership of Sister Imelda in the Sisters of Mercy and her vows and obligations thereunder, she is capable of holding and transmitting the property by descent or deed.
I do not understand the opinion of the court in Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468, to hold that the contract between one of the sisters entering such society and the society, is a legal and valid contract. It was and is my understanding of the opinion that the result there stated would result, were the contract a legal and binding one; but as it was not a legal contract, because of the Mortmain Statutes (sections 269 and 270 of the Constitution of 1890), the illegality of the contract was clear and free from doubt. The features of the contract, which in my judgment render it illegal and contrary to public policy, were not there entered upon, nor were they fully discussed either in the briefs of counsel or in the opinion of the court; and certainly it was not adjudicated that such contract is a legal and binding contract, having a legal effect to at once transmit all property received by a member of the Sisters of Mercy to the society. In the contract in that case, and in the exhibits in the present case, it is clearly shown that an essential condition of a woman entering into that contract is that she assume the vows of poverty, chastity, and obedience, which, under the laws of the society, sanctioned by the authorities of the Roman Catholic Church, pledges the member to forever forego marriage, and to obey without question orders of every kind of her superiors, the Mother Superior of the society, and above her the bishop of the diocese, and above him the society of the religious at Rome, and above that the Pope.
In the Declaration of Independence announcing the principles upon which all of the American commonwealths are founded, as well as the Constitution and government of the United States, it was solemnly declared:
"That all men, are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness."
By the Fourteenth Amendment to the Federal Constitution, it is provided:
"Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
By the Thirteenth Amendment to the Federal Constitution and section 15 of the state Constitution, it is provided that:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
By section 24 of the state Constitution it is provided that:
"All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay."
By section 25 of the state Constitution it is provided that:
"No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both."
The same right is secured in criminal cases by section 26 of the state Constitution.
The word "liberty," as used in the Fourteenth Amendment to the Constitution of the United States, has been discussed by the supreme court of the United States in a number of cases, and, it is clear from the cases dealing with the subject that no contract is valid which infringes upon these rights.
In the case of Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468, the court held that a state statute requiring all children between the ages of eight and sixteen years to attend the public schools unconstitutionally interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. At page 1078 of the L.Ed. ( 268 U.S. 534, 45 S.Ct. 573), it is said:
"Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446, we think it entirely plain that the act of 1922 [Laws Or. 1923, p. 9] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
In the case of Meyer v. Nebraska, above referred to, the court held that the liberty guaranteed by the Fourteenth Amendment to the federal Constitution "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
In the Meyer case the plaintiff in error was tried and convicted in the district court of Hamilton county, Neb., under an information which charged that on May 25, 1920, while an instructor in Zion parochial school, he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained and successfully passed the eighth grade. The information is based upon "An act relating to the teaching of foreign languages in the state of Nebraska" (Laws Neb. 1919, chapter 249), which provided that "no person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language [other] than the English language" (section 1); that "languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides" (section 2). Other sections provide for the punishment for violation of the act.
In discussing the liberties of a citizen within the meaning of the Fourteenth Amendment, the court said:
"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (citing numerous cases).
In Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, the court had under consideration the validity of a statute of the state of Louisiana which prohibited the obtaining of insurance from insurance companies not authorized to do business in that state, and the liberty of contract under the Fourteenth Amendment was involved in that contest. The court discussed the word "liberty" (page 431 of 17 S.Ct. [ 165 U.S. 589]) as follows:
"The 'liberty' mentioned in that amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned."
The court in the opinion quoted also from Butcher's Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U.S. 746, at page 762, 4 S.Ct. 657, 28 L.Ed. 585, as follows:
"The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen."
The court in its opinion further quoted from page 764 of 111 U.S. and page 658 of 4 S.Ct. as follows:
"I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privileges of a citizen of the United States."
And again:
"But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers; which, as already intimated, is a material part of the liberty of the citizen."
The court also quoted in that opinion from Powell v. Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995 (32 L.Ed. 253), as follows:
"The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property is an essential part of his rights of liberty as guaranteed by the Fourteenth Amendment. The court assents to this general proposition as embodying a sound principle of constitutional law."
The exhibits to the bill in the case before us show that in order to take the vows, which it is admitted by the demurrer that Miss Wood, known in her religious life as Sister Imelda, too, she agreed to surrender absolutely her independent judgment to the judgment of her superiors, to implicitly obey them, and to remain forever chaste. In other words, the exhibits show that she contracted to surrender her individual judgment, her right to marriage, and her right to own or control property as her own mind might incline or dictate to her to do; that this was a primary and essential obligation on entering into that society; that she agreed to hold her property subject entirely to the direction of her superiors, and to apply it to such uses as they should designate; that as a consideration for her making this agreement, and the further agreement to render such service as her superiors demanded of her, she was to be given such support as her superiors saw proper to give her; that there was no stipulation in the contract for any specific standard of living, or any specific amount which would be assigned to her for her support. It was shown that she completely surrendered herself to the control and direction of the society with no return except a mere living, and that she agreed that any and all property she might acquire — at any time or in any amount — should be divested out of her to or for such person or institution as to her superiors might designate.
This contract is clearly illegal and cannot be enforced in any court. It is a well-known principle of law that the court will not uphold a part of a contract unless it can uphold the contract throughout. This agreement therefore is clearly in violation of the public policy and laws of this state, and cannot operate to transfer to the Sisters of Mercy the property acquired by her through inheritance from Mrs. Botto.
The bill, however, avers, and the demurrer admits, that the title to the property was confirmed in Miss Wood, known in her religious life as Sister Imelda, by a decree of the chancery court dated July 20, 1926, and that it was therein recognized that Miss Wood was the legal and equitable owner of the complete title. Indeed, the defendants Sisters of Mercy, Bishop of the Natchez Diocese, and Miss Wood filed an answer admitting that the title was confirmed in Miss Wood on said date; denying that she had conveyed the property to the Sisters of Mercy; denying that her vows were solemn vows within the meaning of the Canon Law, which law is controlling in the Roman Catholic Church; and denying that she was incapacitated under the rules and regulations of such society to hold the property. But this answer was later withdrawn, and a demurrer admitting the allegations of the bill, entered. Therefore the alleged curative act passed by the legislature of 1926 would have no operation upon the title of the property here involved.
It is a well-settled principle of law in this state that all contracts which are in violation of law or public policy, or which grow out of an immoral transaction, are void. Brien v. Williamson, 7 How. 14; Wooten v. Miller, 7 Smedes M. 380; Odineal v. Barry, 24 Miss. 9; Hoover v. Pierce, 26 Miss. 627; Deans v. McLendon, 30 Miss. 343; Bank v. Stegall, 41 Miss. 142; Barker v. Justice, 41 Miss. 240.
In Green v. Robinson, 5 How. 80, and Brien v. Williamson, 7 How. 14, it was held that contracts for the purchase of slaves introduced into this state as merchandise, or for sale, since the 1st day of May, 1833, are void, because the provision of the Constitution of this state in relation to slaves so introduced is per se a prohibition of such a traffic.
In Natchez v. Trimble, Walk. 376, it was held that a note given to the city of Natchez for port duties to be collected is in violation of the act of Congress admitting this state in the Union, and is illegal and void.
In Jackson v. Bowman, 39 Miss. 671, it was held that a contract which obliges one of the parties to do an act in violation of law, or restricts the free exercise of a discretion vested by law in a public or municipal officer, in reference to a trust imposed on him, or which contemplates such violation of law or destruction of the free exercise of a public duty, is a nullity.
In Whatley v. Hughes, 53 Miss. 268, it was held that a contract by which one agrees, for the purpose of collecting a claim against an estate, to administer thereon, and thereby make the collection, and for his services to retain one-half the amount collected, is immoral, against public policy, and, while executory, is incapable of enforcement.
In 6 R.C.L. 701, it is said:
"A contract directly and explicitly prohibited by a constitutional statute in unmistakable language is absolutely void. That has never been judicially doubted, and is unanimously conceded. To hold such a contract binding would be to enforce that which the legislature has forbidden, to give effect to that which the legislature has declared void — the repeal of a law by judicial construction. However, it is not necessary that there should be an express prohibition in a statute to render void a contract made in violation of it."
In 6 R.C.L. 707, section 114, it is said:
"The common law will not permit individuals to obligate themselves by a contract either to do anything which, or not to do anything, the omission of which is in any degree clearly injurious to the public. Perhaps no one would at present deny the right or the propriety of judicially determining that a contract which is actually at war with any established interest or society is void, however individuals may suffer thereby. Because the interest of individuals must be subservient to the public welfare. If a contract is of such a nature that it cannot be carried into execution without reaching beyond the parties and exercising an injurious influence over the community at large, every one has an interest in its suppression, and, from a due regard to the public welfare, it will be declared void. The question whether a contract is against public policy must be determined by its purpose and tendency, and not by the fact that no harm in fact results from it. Contracts which are void at common law because they are against public policy like contracts which are prohibited by statute are illegal as well as void, and will not be enforced."
In 13 C.J. 410, section 339, it is stated:
"An illegal agreement will not be enforced, and hence is not a contract, according to the definition of a contract. The illegality may be found in the matter of the consideration or of the promise as expressed in the agreement, or it may be found in the purpose to which the agreement, although legal in expression, is applied. In either case, the agreement is void. The expression 'void' as used in this connection has the meaning of not affording legal remedy rather than of absolute nullity, since such contracts, when executed, may be indirectly effective in that no relief will be granted to either party."
In section 341 of the same work it is said:
"Agreements in violation of positive law are those which are expressly or impliedly prohibited either by some rule of the common law, or by some express statutory provision. The cases, however, are likely to lap over and to stand sometimes on one side, sometimes on the other, and sometimes on both sides of this imaginary line. As a general rule, all contracts or agreements which involve or have for their object a violation of the law are illegal. It is immaterial, as far as the effect of the illegality is concerned, whether the object of the agreement is forbidden by the common law or by statute, or, generally speaking, whether the thing forbidden is malum in se or merely malum prohibitum, although there are authorities which, while not denying that the general rule that an illegal contract cannot be enforced applies as well to contracts malum prohibitum as to those malum in se, hold that it does not necessarily follow that all of the consequences which attend a contract contrary to public morals, or founded on an immoral consideration, attend and affect a contract which is malum prohibitum merely, and that in the latter case the court will take notice of the circumstances and will give relief, if justice and equity require a restoration of money or property received by either party thereunder."
As stated above, the contract was in restraint of marriage, that is, an agreement to live a life of chastity as interpreted by the Roman Law; restraint of marriage not merely for a temporary period or to a particular person, but for all time and all persons. Marriage is favored by public policy, and all contracts in restraint of marriage are void.
In 6 R.C.L. at p. 768, section 174, it is said:
"There is no provision, either by statute or at common law, which enjoins upon any particular person the duty to marry. To marry or not to marry is left to the free choice of all who are eligible to marriage. As the law does not oblige anybody to marry, but leaves a free agency in that respect to every member of the community, an agreement in restraint of marriage is not an agreement to omit what the law commands, but an agreement to omit what the law leaves to every one's own choice to omit if he pleases. Nevertheless the fact that the law does not punish celibacy is deemed to be an insufficient reason for upholding agreements not to marry. The courts, it is declared, should not countenance an agreement whereby a person absolves himself from even a moral duty to society. Marriage is regarded as a duty of the greatest importance to society, because the failure to marry must result either in immorality or depopulation. It is true that, since to omit to marry is not illegal, it may be difficult to see any good reason for denouncing such a contract as illegal in the sense of violating any law, or of placing parties who may have entered into it outside the pale of the law. It is clear, however, that no legal right can be founded on the promise and no remedy afforded for its breach. In order that the agreement may be invalid, it is not necessary there shall be positive prohibition. It has been said that if the condition is of such nature and rigidity in its requirement as to operate as a probable prohibition, it is void."
In 13 C.J. 462, section 404, it is said:
"A class of agreements which are frequently held invalid on the ground of public policy are agreements affecting marital relations. Chief among these are agreements in restraint of marriage. Restrictions on marriage are contrary to public policy, and therefore agreements or conditions creating or involving such restrictions are illegal and void. Thus, where a man agreed to pay a woman a certain sum of money if he married any one but her, the agreement was held void. And so it has been held of a contract or wager by a person that he will not marry within a certain number of years, and of a marriage benefit certificate which was in fact an agreement to pay a sum of money to another on condition that the payee should not marry within a certain time, and if he should marry, then to pay a certain sum for the period that he should remain unmarried. So a contract by a man to pay a woman a sum of money in case she shall marry him after he has secured a divorce is invalid."
The exhibits to the bill and the allegations of the bill clearly and conclusively show that the contract was in violation of public policy. Public policy is the policy of the state, and not the policy of the Roman Catholic Church. However important it may be for their purposes as an ecclesiastical policy, it is contrary to the principles of the Constitution of the state and of the United States, and is in derogation of the rights of the citizen and void, as these cases will show. It is therefore manifest that the society acquired no title, legal or equitable, to the property inherited by Miss Wood from Mrs. Botto.
The opinion of the majority, while pretermitting a decision of the constitutionality of the act (chapter 194, Laws of 1926), state that there is no constitutional objection to this statute. I think there is constitutional objection to the statute, and that this statement should not be made as it is not necessary to a decision of the case, and the court does not decide the case upon any theory that the contract is ratified by such statute. I think the statute is clearly void, under our Constitution.
Section 87 of the Constitution provides that:
"No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted."
Section 88 of the Constitution provides that:
"The legislature shall pass general laws, under which local and private interests shall be provided for and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, organized, and their acts of incorporation altered; and all such laws shall be subject to repeal or amendment."
Both the Sisters of Mercy and the Diocese of Natchez are private, charitable, and religious corporations. They are not public corporations, but private corporations. The legislature has provided general laws under which such societies may be chartered, and their charters amended. They are strictly private corporations subject to the provisions above cited in the Constitution. In determining whether a law is local or general, the form of the statute is not controlling, but the court will look to the substance of the law and determine its true character from its substance rather than its form. Toombs v. Sharkey, 140 Miss. 676, 106 So. 273. The court, in the first syllabus of that case, said:
"In determining whether a law is general or local or special in violation of Constitution 1890, section 90, its substance rather than its form will be considered."
It was held in that case that chapter 211 of the laws of 1924, providing greater compensation for prosecuting attorney in counties having "assessed valuation of twenty-five million dollars or more," and being "in a levee district, where a cotton tax is imposed for levee purposes," than in other counties having same valuation, constitutes a local law, and so violates Constitution 1890; the classification having no reasonable basis. The act there involved had the form of a general law, but inasmuch as it could not have operation throughout the territorial area of the state, it was held to be unconstitutional and void.
In Yazoo Mississippi Valley R.R. Co. v. Southern Ry. Co., 83 Miss. 746, 36 So. 74, this court held that a law which undertook to authorize one of the railroads to purchase a competing line in violation of the general law was a local law, within the purview of section 87; and also held that the clause in section 87, "nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association," was violated, and that it was immaterial in what form the legislature passed the law.
Under the general law, corporations of the kind here involved can only hold certain property therein enumerated, "but no other," section 4524, Hemingway's Code 1927 (section 934, Code of 1906).
The effect of the alleged curative statute is not to amend the law and give it a retroactive effect as to all corporations of the same kind, but merely to authorize such religious and charitable corporations as have acquired property in violation of law, to keep it. The effect of the amendment is not to permit all corporations to acquire property of a given kind and amount for the uses of such society, but merely to condone the violation of law by these societies and institutions. It is, therefore, the same in its effect as if a separate act was enacted in each case, authorizing each specific corporation to acquire and own specific property. Under the terms of the act, no other corporation is authorized to acquire business and residence property for rental and business purposes, and to use or rent them for the use of the society, but it is to give a particular corporation this particular right in this particular case, and to give another corporation a particular right as to other kinds and character and amounts of property for its particular purpose and use. It appears too clear for doubt that the legislature could not have done this under the above-named sections of the Constitution, and as it could not do so directly the legislature cannot ratify its legal act and make it legal in utter violation of the true spirit and purpose of the above sections of the Constitution. The law so construed permits one corporation to have, own, and use property for its purpose which another corporation in precisely the same situation cannot acquire for its use and purpose. This renders the law unequal, and gives preference to those who violate the law over those who observe it — an unfortunate position to place the legislature in, and even more unfortunate for those who have disobeyed the law. If any class of corporations should observe the law, it would be the churches and religious institutions whose existence is primarily for the purpose of teaching the people uprightness of living and observance of law and order as institutions ordained of God.
No authority has been cited in the majority opinion for the statement that such statute is not subject to constitutional objection.
The principle of retroactive laws and the legislative power to enact them to cure defects is discussed in Cooley's Constitutional Limitations (8 Ed.) 770 et seq. It is stated on page 772 of this work that:
"There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden eo nomine, by the state Constitution, and provided, further, that no other objection exists to them than their retrospective character. Nevertheless, legislation of this character is exceedingly liable to abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively. And some of the states have deemed it just and wise to forbid such laws altogether by their Constitutions.
"A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. Of this class are the statutes to cure irregularities in the assessment of property for taxation and the levy of taxes thereon; irregularities in the organization or elections of corporations; irregularities in the votes or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution through the carelessness of officers, or other cause; irregular proceedings in court, etc.
"The rule applicable to cases of this description is substantially the following: If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law."
At page 790 of the same work, after discussing the various applications of the principle of the curative statute, the author says:
"But the healing statute must in all cases be confined to validating acts which the legislature might previously have authorized. It cannot make good retrospectively acts or contracts which it had and could have no power to permit or sanction in advance."
As stated above, it is too clear for dispute that the legislature could not have conferred on these particular corporations the power to own individually such individual and specific property as they had acquired in violation of law. To do so is clearly to suspend a general law for the benefit of individuals and corporations in violation of these sections. If the legislature can do what is claimed for it in the majority opinion, then the restrictions on the legislature in local private legislation are vain and worthless.
The majority opinion also holds, and cites a number of cases in support of its holding, that a corporation acquiring property in violation of the statute, when discovered with the property can defeat the state's action and retain the proceeds of its wrongful conduct. The cases cited in the majority opinion have no bearing on the suit of the state for the purpose of escheating property held by corporations in violation of the prohibitions of the statute, and the statement is unsound and is not supported by authority.
In State ex rel. Atty.-Gen, v. Edw. Hines Lbr. Co. et al., 106 Miss. 780, 64 So. 729, the court simply held that the statute which the attorney-general relied on did not apply to a foreign corporation; that a foreign corporation was not limited in the amount of lands it could hold; that the statutory limitation applies only to domestic corporations; and that the state therefore escheat the property held in violation of the statute. The other cases, without taking up and particularly analyzing them, were not suits by the state for this purpose, but were suits by individuals seeking to nullify the conveyances on that ground. There is a marked distinction between the right of the state and the right of individuals to raise the question.
It is well settled that no one except the state can raise such a question, but the state can raise it. I submit that at common law and by authority in this state, when the state has filed a proceeding to escheat to it, the state has the right to do so, and a corporation is not permitted to answer the state's suit by selling the property, taking the money, and, as soon as the state's officer withdraws, reinvest it in other property which it is forbidden to hold. I submit that the case of Wisconsin Lbr. Co. v. State of Mississippi ex rel. James L. Gillespie, Land Commissioner, 97 Miss. 571, 54 So. 247, holds that at common law the property was subject to forfeiture, and that it is not necessary that the provision for forfeiture be expressly placed in the statute. The opinion in the Wisconsin case was written by the author of the majority opinion herein, and, at page 597 of the Mississippi report (54 So. 249), of that case, said:
"In the act of 1877 [Laws 1877, chapter 14] it is against any person being 'allowed to enter more than two hundred and forty acres of land,' etc. In section 2465 [Ann. 1892, section 2564] it is against the '"purchase" by one person of more than one quarter in one year.' 'Enter' and 'purchase' in these statutes are convertible terms. The penalty added to section 2564, that 'all lands acquired, directly or indirectly,' in violation of law, 'shall escheat to the state,' is the 'universal penalty for the violation of such statutes, whether expressed or not.' If not written in the statute, the law writes it there."
What appears to me to be the true doctrine is announced in Louisville Ins. Co. v. Commonwealth, 147 Ky. 72, 143 S.W. 1044. At page 1046 of the S.W. Report ( 147 Ky. 76) the court said:
"Notwithstanding its holding of the real estate escheated more than five years, appellant might at any time before the institution by appellees of this action have protected it against escheat by a bona-fide sale thereof to a purchaser for value, but, having failed to do so, it will not be allowed, after the escheat is declared, to escape the consequence of its violation of the law in illegality holding the property by offering to pay the costs of the action, if permitted to sell the property and retain the proceeds. Such a state of case as is here presented was in the minds of the court when it said in the opinion of Louisville School Board v. King [ 127 Ky. 824, 107 S.W. 247, 15 L.R.A. (N.S.) 379] supra: 'Neither by the Constitution nor the statute is it declared that the corporation shall be divested of, or the state vested with; the title to such useless lands immediately upon the expiration of the five-year period. Nor does either contain any prohibition against the sale or conveyance by the corporation after that date. The absence, however, of such a restriction, is not inconsistent with the right of the state to claim an escheat of the property at the end of the five years. It may upon the expiration of that period immediately take steps to enforce its right to the property, and thereby defeat any subsequent attempt at a sale and conveyance of it by the corporation.' Manifestly, nothing short of deprivation of the useless property can be expected by the corporation, if it violates the law by holding it more than five years and until suit to escheat it is instituted. The statute is as emphatic in its provisions that the school board shall be the beneficiary of the judgment of escheat, as is section 192 of the Constitution, that deprivation of the property shall be the penalty for the illegal holding of it by the corporation prohibited by its provisions. The purpose of the penalty of escheat is twofold: (1) It is an incentive to the corporation to sell its useless lands within the five-year period, without which it would not be diligent in disposing of them, and might not do so at all. (2) It is also an incentive to the school board to be diligent in discovering what corporations are illegally holding lands. To allow the offending corporation to retain the lands or their proceeds following their escheatal upon payment of the costs of the action would be to remove or mitigate the penalty and condone the offense, which the courts are without power to do. When the escheat is adjudged, the corporation's deprivation of the property escheated must inevitably follow, and it automatically falls to the school board. The statute so disposed of it, and the courts cannot divert it from its course."
In other words, a private corporation, when it acquires property in violation of law, secures title as against the seller or grantor in the conveyance or instrument by which the title is devolved. But the state has the right to step in and take from the corporation the property it so acquired. In some of our statutes it has been expressly provided that the proceeds of the property shall be divided among the stockholders; for instance, in prohibiting the ownership of agricultural lands for farming purposes. But the statute we are now dealing with expressly provides that a corporation shall own certain property, but no other. This is a prohibition against the ownership by the corporation, which the state had full power to make, and the effect of it is to incapacitate the corporation to acquire the property as against the state.
In construing the Mortmain Statute in Blackbourn v. Tucker et al., 72 Miss. 735, 17 So. 73, the court held that the effect of the provisions of the Constitution was to prohibit the corporation from acquiring and the owner from making such disposition of it. The court said:
"The prohibition is against the thing to be done, and not against the processes by which it is done. The limitation is upon testamentary power, and, if it is unjust or retroactive to apply its terms to one who had made a will, why does not the same objection lie in favor of all the people who, at the time of the adoption of the Constitution, had the testamentary capacity to then make wills? The provisions certainly, in one sense, take away a pre-existing power, but it was one existing as much in every citizen then having testamentary capacity as in Blackbourn, who had executed a paper which in no sense bound him, or conferred any right upon the persons named therein as legatees. We can see no reason why the prohibitions should not operate against Blackbourn's right to retain his estate during his life, and then disinherit his heirs by devoting it to religious and charitable purposes, which would not also restrain it as against all others who, before the adoption of the Constitution, had the power so to do. We are of opinion that the will is subject to the operation of the Constitution."
Much that has been said would be necessary to the decision of the case, but in view of the statements in the opinion of the majority (which are also unnecessary to the decision of the case, and therefore constitute dicta) I have deemed it proper to challenge such announcements so that no one will be misled thereby.
As stated in the beginning, Miss Wood, who is known in her religious life as Sister Imelda, inherited the property, has a right to own it, and a right to dispose of it in a lawful way. No doubt, the Bishop of the Natchez Diocese would dispose of it as directed in the will within some time deemed by him proper, but his judgment cannot in the nature of things, be the judgment of the law. The court below should therefore have retained the bill and directed a disposition of the property at such time as, in the light of the facts before it, would be proper.
In view of the exhibits to the bill and the admitted relations between the Sisters of Mercy, Sister Imelda, and the Bishop of the Diocese of Natchez, I think the bishop should not act as trustee in such case, and that therefore, the bill should have been retained, and a proper trustee, subject to the jurisdiction of the court, appointed with directions to sell.
I regret the necessity of discussing these questions at such length. I appreciate the great works of charity so worthily performed by the Sisters of Mercy, and recognize that, in many cases, a devotion of money to such society would serve a more useful purpose than turning it over to individuals. Nevertheless, the public policy of the state in restricting the ownership of property by religious corporations and societies is wholesome, as has been demonstrated in the history of other countries where such ownership has been permitted without restrictions, and it is the duty of the court to carry out the public policy of the state as expressed in its Constitution and laws, regardless of personal opinion or private wishes.