Evening journal., 1916-08-05

against the grantor and its successor,
the corporation defendant. contend
that II is Intellectual as against Bailey
on the ground that It was not re-
corded and he is bona fide purchas-
or for value. But I do not think he
Is such a purchaser. He entered
into the contract 10 purchase and
paid at the time Of the execution $500,
OF only one four hundred and fifueth
part of the amount Of the pur-
chase price. presumably to bind
the bargain, and 10 operate as
part payment Of the price OF
S225,000, should good and
sufficient deed sin fee simple, clear Of
all liens and incumberances" be
rendered to or received by him. But
he has neither paid anything further,
nor has he received the deed. Under /
these circumstances he does not come !
within the rule protecting bona-fide
purchasers for value for it is well /
settled that, in the absence Of some ,
doctrine touching equitable titles not
obtaining in Delaware. TO constitute
him such a purchaser II is necessary
that he should have acquired legal |
title and have paid the whole or
substantial portion of the purchase
price.
But he has done neither. The de.
PENDANTS have not referred TO any case
in support Of their contention. Fur
ther. in his answer in First Presby-
terian Church Of Wilmington, Della
ware, Incorporated, v. Bailey, as al
ready said. he stated that the said
lot. piece and parcel Of land. together
with the easement oppurtenant there
TO, was and still remains Impressed
with and subject 10 the religious uses
and trusts" set forth in the deed from
Stdham. Being thus informed. when
not too late to protect himself, that
the land which included the Cleland
burial lot was still subject TO the re-
ligious uses and trusts referred to,
the conspicuous and costly monument
on that lot was sufficient to cause any
reasonably prudent man, contemplat-
ing a purchase and using ordinary
circumspection, to make inquiries of
the heirs or other representatives or
Nelson Cleland as to the existence Of
deed serving as an inducement to
the erection of such a monument But
it does not appear either that he made
inquiry Of such heirs or representa-
tives, or attempted learn from the
corporation defendant or any indi-
vidual where such heirs or representa-
tives could be found. Thus. even we're
II assumed that the contract to pur-
chase and his payment of the $500
constituted him a purchaser for vafue
he was not a bona-fide or innocent
purchaser within the meaning of the
rule Of protection.
An Ancient Document.
The deed to Cleland was executed
more than seventy-three years ago
and is therefore an ancient document
And the evidence shows that 1t has
always been in proper custody on
the death Of Nelson Cleland it passed
into the possession Of his widow
| Christiana Cleland, and was held by
her until her death when Il was re-
ceived by her daughter Mary Z. Jor-
dan, who held II until her death, when
It passed into the possession of her
son, Sidney S. Jordan, with whom II
remained until May 13, 1915, when II
was delivered to Archie y. Jordan
who on the same day turned II over
to the solicitors for the complainant
in the bill as originally filed.
Nelson Cleland, as has appeared. II
and by his will asserted his owner
ship OF the burial lot in question: and
his heirs-at-law have under the deco
and the right and title conferred by Il
from that date of his burial in 1854
until the present day exercised acts oi
ownership over the burial lot thereir
described and have erected and con,
structed at large expense. and hav,
maintained in proper condition. tn,
monument, vault and copings abovl
mentioned As an ancient deed com
ing from the proper custody the deet
proves itself / Greenl. Ev. No. $40. II
Lay v Carter, 151 y. Y. Supp. 1881. 4
was held that where a family use,
part Of a lot Of land for burial pur
poses for more than seventy-five year
with no record title, the recor,
owners. who knew of such user an,
by silence consented to IL, would b.
deemed to have dedicated for
cemetery so much of the lot as wa
actually so used.
The deed to Cleland having beei
= to him. his heirs and assigns for
! ever, for the use and purpose of
r private cemetery or burying groun
, for the dead and to and for no othe
pun H0Ht WiAaAtNtAf SubJttA " u tndI
4 of the expense and TO the rules an
p regulations for maintaining the ceme
terry in good condition. he had a bas
y fee hereunder. subject to restrictio
relative to expense and rules an
4 regulations.
Judge Bradford here quoted a de
T cision bearing on the point and con
tinued:
a Cleland's estate under the deed i
n question being transmissible and des
= cendible, the complainants have in
o herited from two of his three Chi
!, dren to whom the burial lot was de
4 vised equally in fee two-t thirds of tn
n right, title and interest conveyed I
y him.
n Wrong I'm Point of Law.
I think there is something wron
o in point Of law as we'll as in point {
r morals involved in the propositio
- that Cleland. after the execution an
d delivery Of the deed TO him, and III
receipt by the owner Of the cemeter
a from him of valuable considerable
n therefor. and the expenditure by n
= descendants of labor and money
l. the construction and erection OF
Ie vault. monument and other improv,
e ments. is to be treated as having ol
o tanned a mere license or privilege. d'
Il terminable at any moment the own'
Ie OF the cemetery may find II advar
# tageous or profitable 10 dispose of
le or a part of il for some foreign pui
l. pose
: If it be assumed in accordan'