#### JACOB G. WALKER & AL. vs. JAMES FAWCETT & AL.

Where a conveyance is made to A. B. and C. for a certain tract of land, as trustees for the Methodist Episcopal Church, a suit of trespass *quare clau-sum fregit*may be brought by A. B. and C. against the wrongdoers, though they may not have been appointed trustees according to our Act of Assembly in relation *to*the appointment of trustees by religious congregations. The title is vested in them individually ana they may recover at law, though in the writ and declaration they style themselves “ trustees.” The latter word may be rejected as surplusage.

It is only when a suit is brought by persons, who claim as “ successors,” that the question arises, whether the original bargainees were duly chosen the trustees of a religious congregation, and whether the persons suing were also duly chosen trustees, so as to give them legally the character of “ successors” to the former, and thereby vest in them the title to the property, which is necessary to support an action.

The cases of *The Trustees of the Conteniea Meeting*v. *Dickinson,*1 Dev. J89, and *White*v. *White,*I Dev. and Bat. 2b'0, approved and distinguished from this.

Appeal from the Superior Court of Law of Orange County, at the Fall Term, 1846, his Honor Judge Rattle presiding-.

The action is trespass *quare clausum fregit, and was*tried on the general issue.

The plaintiffs are Jacob G. Walker, James Murray, and seven other persons, and they claim the premises under a deed made to them by Thomas White, and Mary P. White. The deed is dated the 26th day of September, 1838, and purports to be a deed of bargain and sale for 5i acres of land (in consideration of one dollar,) from *45the bargainors to Walker, Murray and the other seven plaintiffs “.and their successors, (appointed according to the deed of settlement used by the Methodist Episcopal Church as contained in their discipline) Trustees in trust for the uses and purposes hereafter mentioned and declared, to have and to hold unto them, the said Jacob G. Walker. James Murray, (and the other seven plaintiffs,) and their successors in office forever : *In trust,*that they shall erect and build or cause to be erected and built thereon, a house or place of worship for the use of the Methodist Episcopal Church in the United States of America, according to the rules and discipline, which from time to time may be agreed upon and adopted by the ministers and preachers of the said church, at their General Conference in the United States of America: and *in further trust,*that they shall at all times, forever hereafter, permit such minister and preacher belonging to the said church, as from time to time maybe duly autho-rised by the General Conference of the ministers and preachers of the said Methodist Episcopal Church, or by the Annual Conference, authorised by the said General Conference, to preach and expound God’s holy word therein.”

The plaintiffs gave further evidence, that by the rules of Discipline of the Methodist Episcopal Church in the United States, the minister having charge of a circuit is to nominate trustees for the different churches or congregations in his circuit, except in States where the law prescribes a different mode of appointment. And the plain; tiffs gave further evidence, that a house, called Mount Pisgah Meeting-house, was erected on the premises as a place of worship, and was used for that purpose by a congregation of religious persons, belonging to the Methodist Episcopal Church, under the charge of a minister and preacher of the circuit, in which the meeting-house was situate ; and that before the said deed was made, and when the congregation that usually worshij ped at *46that meeting-house, was assembled therein, the said minister and preacher announced to the congregation the appointment of the nine persons, who are the plaintiffs in this action, as trustees for that congregation, to receive a conveyance for their land and take charge of the property belonging to the congregation and church; and that to such announcement no assent was expressly given, nor objection made by the congregation. But the plaintiffs gave further evidence, tending to shew that they accepted the office or trust, and proved that they accepted the said deed from Thomas White and Mary P. White.

The defendants thereupon insisted, that the plaintiffs were not elected or appointed ti'ustees in the manner prescribed by the statute, and therefore that they could not maintain this action, in which they name themselves trustees : And further, that the deed did not pass the title to the plaintiffs, by reason that the trust therein expressed is too indefinite. The presiding Judge declared his opinion to be with the defendants on the first ground ; and for that reason, without deciding the second point, the plaintiffs were non-suited, and appealed.

*Venable*and McRae, for the plaintiffs.

*Norwood,*for the defendants.

Ruffin, C. J.

The Court is of opinion, that it was not correct to non-suit the plaintiffs on the ground stated. The action is brought by the persons, and all the persons, to whom the deed was made ; and if it passed the legal title to them, in any capacity, they have the right to bring this action. It is true, that in the writ and declaration, the plaintiffs are styled “trustees but, by itself, the-t is an unmeaning term, and does not affect the proceedings for good or harm, but is mere surplusage. The action, in all such cases, is brought by the plaintiffs, in their natural capacity; for, as they are not incorporated, they have no name by which they can describe themselves in pleading, *47but their names as natural persons. It is enough, therefore, to sustain their action, that they shew a legal title in them by a conveyance, or otherwise. Where the plaintiffs, as here, are the very persons to whom the deed for the premises was made, they must recover on the legal title, which is in them, for their lives, at least, by operation of the deed, under the general law, and without any help from the act concerning Religious Societies. It is when a suit is brought by persons, who claim as “successors,” that the question arises, whether the original bargainees were duly chosen the Trustees of a religious congregation, and whether the persons suing were also duly chosen Trustees, so as to give them legally the character of “successors” to the former, and thereby vest in them the title to the property, which is necessary to support their action. But these plaintiffs are not obliged to shew themselves to be Trustees by election of the congregation, according to the statute, because by the deed, they have the title ; and it does not impair their title, that they hold it as trustees, by contract, for a religious society. That observation distinguishes this case from those of *the Trustees of the Contentnea Meeting*v. *Dickinson,*1 Dev. 189, and *White*v. *White,*1 Dev. & Bat. 260; on which the objections here were probably raised. There, the deeds were made to persons, *\\*ho were admitted to be the Trustees of the societies, duly chosen, and in the former case, the action was by successors ; and the Court held, that the deeds were inoperative, because they were made, not in truth, in trust for the society, but in fraud of the law, and against its policy, upon a forbidden trust to emancipate the slaves, or to hold them in a state of *quasi*freedom. The Court could not therefore, in *White*v. *White,*upon any just ground, uphold the deed to the trustees as made to them and without regard to their relation to the society, against the express terms of the deed itself, and also against the actual intention of the parties to the instrument. But here the defendants deny that *48the plaintiffs were the trustees of the congregation of Methodists; and, indeed base the objection to their recovery on that very ground. If that be true, there is, plainly, no reason against the operation of the deed, as one founded on a good consideration, and to persons in their natural capacity ; for the plaintiffs would, then, have but their natural capacity, and there is nothing immoral or illegal in their taking a conveyance of land to them, as natural persons, in trust, to allow a Christian church to erect on it, and use, a place of worship. The plaintiffs were either the trustees duly chosen by the congregation, or they were not; and in either case, they can have this action. If the former be the truth, then their title would be sustained by the act of 1796, according to the defendants themselves. If the latter, then,independent of that act, the plaintiffs’ title would be good, because they had but a capacity as natural persons.

Whether the trust can, or cannot, be enforced, is not material, for, not being for an immoral or unlawful purpose, it does not affect the operation of the deed, as a conveyance of the legal estate ; and therefore the point is not further considered here, but left for the cognizance of the Court, having the jurisdiction of trusts. These defendants, who are strangers and wrong-doers, have no concern with that question.

Per Curiam. Judgment reversed and *venire de novo.*