Opinion
15668.
JANUARY 7, 1947.
Equitable petition. Before Judge Pratt. Gwinnett Superior Court. August 24, 1946.
R. F. Duncan, for plaintiff.
Marvin A. Allison and Charles C. Pittard, for defendant.
1. The use by a rural church of a portion of its land as a burial ground was for a "religious purpose" within the meaning of a covenant in the deed conveying the land to the church and requiring the land to be used for religious purposes, subject to a reversion in the event of a failure of such use.
2. The verdict being demanded by the evidence, it is unnecessary to determine the other legal questions presented by the record.
No. 15668. JANUARY 7, 1947.
J. C. Williams brought an action against Mrs. Mattie Ramey et al., alleging that on May 12, 1941, he conveyed to the Deacons of the New Rock Springs Missionary Baptist Church a one-acre tract of land, with the following condition in the deed: "This property is conveyed to the said parties and their successors to be used for religious purposes, and should the church which they have established ever be abandoned and the property not used for religious purposes, then the same is to revert to the grantor, his heirs or assigns." It was alleged that the defendants were undertaking to use said property for a cemetery, and had buried the body of one person on the lot; and it was further alleged that the use of the premises as a burial ground is not authorized within the meaning and intention of the parties under the term, "religious purposes," and if a cemetery were established, it would destroy the full benefit of a reversion by reason of an easement on the land in favor of the families of the dead interred there. The prayers of the petition were for injunction and other relief. The jury returned a verdict in favor of the church, and exception is taken to the judgment of the lower court, in which error is assigned on the general grounds, and on several special grounds complaining of the admission of certain evidence, and a portion of the charge to the jury.
There may be some question under the authorities as to whether or not a mere possibility of reverter in property is such an interest as will warrant injunctive relief to prevent the creation of an easement upon the corpus of an estate. See Matthews v. Hudson, 81 Ga. 120, 129 ( 7 S.E. 286, 12 Am. St. R. 305), Mitchell on Real Property in Georgia, p. 186, and 31 C. J. S., "Estates," 126, § 105; all of which indicate that such an interest does not warrant injunctive relief. See, however, Restatement of the Law, "Property," 793, § 193, and the following Georgia cases: Griswold v. Greer, 18 Ga. 545; Kollock v. Webb, 113 Ga. 762 ( 39 S.E. 339); Keaton v. Baggs, 53 Ga. 226; Fleming v. Hughes, 99 Ga. 449 ( 27 S.E. 791). These cases might by analogy possibly indicate a different rule. It will be noted, however, that the last-mentioned cases deal with contingent remainder interests, and therefore may not be in point. Under the facts of this case, it seems really unnecessary to determine this question or the other legal propositions presented by the record, for the reason that the use by the church of a portion of the one-acre tract of land which it holds in fee (subject only to a possibility of reversion) as a burial ground is, as we view it, an authorized use under our construction of the term, "religious purposes," as applied to churches in rural communities.
One of the functions of any church is to observe religious rites and pay religious homage to its dead. In the great cities the "churchyard," like that of Trinity, surrounded by the towering skyscrapers of New York City, stands as a mute memorial of the past. But even in the churchyard just mentioned lie the undesecrated bones of Alexander Hamilton and other fathers of our country, who lived much and who gave much, and who were put away secure in the faith that the hallowed ground of their "narrow cell" would never be disturbed. In rural communities, the "country church yard" still has its solemn and important part in religious activities. These churches are far removed from the secular cemeteries, and the even more pretentious commercial mausoleums now in vogue. The immortal "Elegy Written in a Country Churchyard" lives on in the hearts of humanity largely because it spoke for its own present, its own past, and for all time to come. So long as rural communities shall continue to exist, it will doubtless be the wish and desire of the faithful to be put away within the precincts of the living church which personified the faith that was in them. They should not be denied this hope and privilege merely because some grantor, in deeding to the church its land, may have sought to look into the seeds of time by providing for a reversion to himself or heirs in the event that the church should ever cease to exist or should be used for other than religious purposes. We can hope that all of our churches will live and will continue always to prosper. While they do, let them function in all of their sacred rites and ways, including the right to take within the bosom of themselves the mortal remains of those who in life had nurtured them.
Under the foregoing ruling, the verdict in favor of the church was demanded, and therefore it becomes unnecessary to deal with the questions presented by the special assignments of error.
Judgment affirmed. All the Justices concur.