Small v. Cahoon

Sheldon, J. Upon the facts found by the master and the statements made at the argument by the defendant’s counsel, it appears that before the year 1875 the title to this church was in [364] the pew holders. The building seems to have been erected on the land of some third person with his consent. It was paid for out of the funds obtained from the sale of pews. It was the pew holders who held the beneficiary interest in the building and were entitled to its enjoyment. In re New South Meeting House, 13 Allen, 497, 508. The constitution under which the original society was organized is to the same effect. It provides for the meetings of “ the Society (or pew holders).” It recognizes only pew holders, or persons renting pews. The expenses of the church were to be met by taxes upon the pews. Since 1875, however, the church has been supported by voluntary contributions, and not by such taxes. But we have not before us the terms of the vote by which this change was made; and there is nothing to indicate that the pew holders have abandoned any of their rights of property. On the contrary, these rights were still recognized as they had been before. The right to vote at meetings of the society and thus to control its affairs was still, as before, conceded only to pew owners, or to persons who at the time rented pews. The plaintiffs are pew holders. A new religious society calling itself the Bethel Society has been organized in the neighboring village of South Chatham, and the purpose of the defendants is to move this building into that village and appropriate it to the use of the new society, thus permanently depriving the plaintiffs of their proprietary rights in the building as it now stands. Stebbins v. Jennings, 10 Pick. 172. Manifestly this cannot be done without their consent, unless they are concluded by the terms of the vote passed at the meeting of the old society on December 23,1909. But the meeting at an adjournment of which this vote was passed, was not called as required by the first article of the constitution, the plaintiffs had not seen the notice which was posted in the church in attempted compliance with that article, and one of them had no knowledge at all that the meeting was to be held. None of them was present at that meeting or at the adjournment thereof. Even if a vote properly passed at a duly called meeting to remove the building to an adjoining village in another town and there turn it over to a new society would have been valid and effectual against the objection of persons who, like the plaintiffs, had rights of property in the building, (Baker v. Fales, 16 Mass. 488,) [365] they cannot be bound by this vote. Reformed Methodist Society of Douglas v. Draper, 97 Mass. 349. Canadian Religious Association v. Parmenter, 180 Mass. 415. None of the exceptions taken by the defendants to the master’s rulings upon the admission or exclusion of evidence has been argued, and we treat them as waived. The plaintiffs are entitled to a decree against the defendants as prayed for. So ordered.