Scottish Court of Session Decisions

On 22d October 1886 an action was raised by Robert Thomson, baker, 123 Rose Street, Edinburgh, and James Sinton, 15 Buccleuch Street, and their wives, as the surviving members of the congregation of the United Original Seceders, sometime worshipping in South Clerk Street, Edinburgh, under the pastoral care of the Rev. Archibald Brown, against Henry Anderson, residing at 12 Clifton Terrace, Edinburgh, and Charles Lyon, residing at 36 Reid Terrace there, as the sole surviving trustees and managers for the said congregation of the United Original Seceders under a disposition in favour of them and two other trustees, since dead, dated 15th and recorded in the Register of Sasines 20th September 1871, to have it declared (1) that the defenders held certain property, consisting of a hall (used as a church) and a dwelling-house in South Clerk Street, Edinburgh, in trust for the pursuers and other remanent members of the said congregation; (2) that the defenders should produce an account of their intromissions as trustees and managers of the said subjects; and (3) that they should convey the said subjects and make payment of the rents and revenues to the minister and elders forming the kirk-session of the church of United Original Seceders in Victoria Terrace, Edinburgh, under the pastoral charge of the Rev. John Sturrock, “in trust for behoof of the congregation of said church of United Original Seceders in Victoria Terrace, Edinburgh, or to the Synod of the United Original Secession denomination, or to such other persons or for such other purposes as our said Lords may consider most in accordance with the purposes of the said trust-disposition.”

The congregation, of which the pursuers and defenders were allmembers, worshipped originally in a church situated in Adam Square, Edinburgh, which had been purchased in 1844. The title to this church had been taken to certain persons as trustees, and to the survivors and their successors, assignees, and disponees, “but that always in trust for the use and behoof of the said congregation or of those members thereof who continue to adhere to and maintain the principles presently exhibited in the Testimony emitted by the United Associate Synod of Original Seceders for the Covenanted Reformation attained to by the Reformed Church of Scotland between 1638 and 1650, and against the several steps of defection therefrom in former and present times.”

About the year 1857, in consequence of certain charges made by Mr Brown in the course of discussion in the Synod, Mr Brown was libelled, and suspended from his charge. As the result of these dissensions about half the members of the congregation (being that part of it which agreed with the governing body or Synod which had suspended Mr Brown) left, and formed the congregation which met in Victoria Terrace. About half of the congregation, however, sympathised with and adhered to Mr Brown, and kept possession of the Adam Square church.

On 4th October 1870 the property in Adam Square was purchased by the City Improvement Trustees at the price of £2500. Thereafter a hall and dwelling-house were purchased for the use of Mr Brown's congregation in South Clerk Street. The title to the hall and dwelling-house was dated 15th September 1871, and was taken to and in favour of “Charles Lyon, Thomas

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Dickson, Henry Anderson, and Charles Frater Lyon, and the survivors and survivor of them, and to such other person or persons as may be named by the male members of the congregation at a general meeting called for that purpose by intimation from the precentor's desk on the Sabbath before such meeting, as trustees and managers for the congregation of the United Original Seceders presently worshipping in Adam Square under the pastoral charge of the Rev. Archibald Brown, any three of said trustees, while more than three survive, and the majority while three only survive, being a quorum, and any four being a quorum of a meeting of the male members of the congregation, and under the condition that any trustee or member of the congregation leaving it and worshipping elsewhere not in harmony with the principles contained in the Testimony (United Original Secession) shall thereby be disqualified from acting as a trustee under this present conveyance, and from voting at meetings, or of having any say in the affairs of the congregation, and to the assignees and disponees whomsoever of the said trustees, heritably and irredeemably.”

After March 1875 Mr Brown's health declined so much that he was unable to continue to preach, but prayer meetings were carried on in the church, and sermons read to the congregation till July 1878, when the church was closed.

The congregation met on 28th July 1878, when the following minute was adopted:—“That the trustees in whose persons the property belonging to the congregation is vested be empowered to sell the church with fixtures and fittings therein, and that by public roup, at such time as is considered by them or their advisers most expedient, at the upset price of eight hundred pounds (£800), and further, that they be empowered to sell the house presently occupied by their pastor, the Rev. Archibald Brown, at such time and on such conditions as they may deem most expedient, at the upset price of six hundred pounds (£600). Further, in the event of either of the said properties not being sold at such exposure by public roup, with power to the said trustees to re-expose the same at such reduced upset price as they may consider necessary, with power also to invest the proceeds or any part thereof in such way and for such terms and for such period as they may deem proper.” The property, however, was not sold. In October 1878 the four pursuers became members of the Victoria Terrace congregation of United Original Seceders.

Mr Brown died in 1879.

The pursuers averred that the congregation had been finally dissolved by the resolution of 1878. This the defenders denied. They stated that the motive in proposing to sell the subjects was to provide for sustenance for Mr Brown, and that his death made it unnecessary to proceed with the proposed sale; further, that they proposed when the debt was paid off to endeavour to get another minister in Mr Brown's place; further, that the pursuers and the rest of the Victoria Terrace congregation which they had joined held principles not in harmony with the ‘Testimony’ of the Original Secession.

The defenders pleaded that the pursuers had no title to sue.

On 7th January 1887 the Lord Ordinary ( Lee) found that the pursuers had set forth no sufficient title to sue the present action, and therefore dismissed the action.

“ Opinion.—The pursuers are four persons who at one time (prior to October 1878) belonged to the congregation of United Original Seceders, formerly worshipping in Adam Square under the pastoral charge of the Rev. Archibald Brown. In 1871, when the Adam Square church was taken by the Improvement Trustees, that congregation acquired the subjects in Clerk Street described in the summons, the title being taken to ‘Charles Lyon, Thomas Dickson, Henry Anderson, and Charles Frater Lyon, and the survivors or survivor of them, and to such other person or persons as may be named by the male members of the congregation at a general meeting to be called for that purpose by intimation from the percentor's desk on the Sabbath before such meeting, as trustees and managers for the congregation of the United Original Seceders presently worshipping in Adam Square under the pastoral charge of the Rev. Archibald Brown, any three of said trustees, while more than three survive, and the majority while only three survive, being a quorum, and any four being a quorum of a meeting of male members of the congregation, and under the condition that any trustee or member of the congregation leaving it and worshipping elsewhere, not in harmony with the principles contained in the Testimony’ (United Original Secession) ‘shall thereby be disqualified from acting as a trustee under this present conveyance, and from voting at meetings, or of having any say in the affairs of the congregation, and to the assignees and disponees whomsoever of the said trustees, heritably and irredeemably.’

“In July 1878 the church was closed in consequence of the illness of Mr Brown (who died in 1879), and the congregation, at a meeting of the male members, empowered the trustees to expose the church and house for sale, and to invest the proceeds ‘in such way and for such terms and for such period as they may deem proper.’ The subjects, however, did not find a purchaser. They are still in the hands of the surviving trustees, Mr Henry Anderson and Mr Charles Frater Lyon, who are the defenders in this action.

“The pursuers ask for decree of declarator that the subjects ‘are held by the said defenders in trust for behoof of the pursuers and other remanent members of the said congregation of United Original Seceders;’ further, for an account of the defenders' intromissions, and also that the defenders should be decerned to convey the subjects, and to make payment of the rents, revenues, and others ‘to the minister and elders forming the kirk-session of the church of the United Original Seceders in Victoria Terrace, Edinburgh, under the pastoral charge of the Rev. John Sturrock, in trust for behoof of the congregation of said church (viz., the Victoria Terrace Church), ‘or to the Synod of the United Original Secession denomination, or to such other persons or for such other purposes as our said Lords may consider most in accordance with the purposes of the said trust-disposition.’

“The first question raised by the defences is, whether the pursuers have set forth any sufficient title to sue the present action? Have they upon the averments made on record any right or

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interest under the titles to the property by virtue of which they can insist in the conclusions or any of them?

“It is substantially settled by the case of Couper v. Burn, 22 D. 129, where the terms of the title were very similar, that the trust created by such a title as here occurs is a trust for the congregation therein described, and not for the ecclesiastical body with which that congregation was in connection, nor for any different congregation in connection with that body. I did not understand this to be disputed, and the leading conclusion of the summons seems to assume that the title was of this character, and vested the beneficial interest in the members of a certain congregation.

“In this view of the title, if the action had arisen out of a split in the congregation, it might have been necessary in order to dispose of competing claims to the property to ascertain which party adhered to the principles upon which the congregation was formed.

“But the peculiarity of this case is that it has not originated in any alleged deviation on the part of the defenders from the principles of the Secession Testimony, or in any threatened misappropriation of the subjects to the use of a different body from that which is described in the title as the congregation of United Original Seceders worshipping in Adam Square. The defenders do not dispute that they hold the subjects in trust for that congregation. The sole ground of action is that the congregation has been dissolved. It would not seem to follow, even if the fact were so, that the property is to be taken out of the hands of the trustees. But at all events it is incumbent on those who make such a demand to show that they possess a title and interest to vindicate the claims which they bring forward.

“With regard to the conclusions as directed to a conveyance of the property to the kirk-session of the Victoria Terrace congregation, or otherwise to the United Original Secession denomination, it appears to me that the pursuers' title is manifestly insufficient. Neither of these bodies is a party to the action, and the pursuers have not alleged any title to represent either the one or the other.

“Then, how stands the pursuers' title to vindicate the property for the congregation formerly worshipping in Adam Square under the pastoral charge of Mr Brown?

“They do not profess now to belong to that congregation, for they admit that in October 1878 they became members of the Victoria Terrace congregation. That is not merely a different congregation, having a distinct organisation and separate existence, but it was so at the time when the Clerk Street subjects were bought and the title taken as above set forth. Indeed that congregation was formed in 1857 by a portion of Mr Brown's congregation which separated itself from him upon grounds of difference which are not said to have afforded any pretence for depriving Mr Brown and his adherents of the right to the old church in Adam Square. It seems unnecessary, for the purpose of considering the pursuers' title to represent the congregation referred to in the title, to inquire minutely into the nature and origin of these differences. They were sufficient, in the view of the Victoria Terrace congregation which the pursuers have joined, to justify a secession from Mr Brown and his congregation. The pursuers' statement is (in Cond. 2)—‘As a result of these dissensions about half of the members of the Adam Square congregation seceded from it and formed the congregation of United Original Seceders now meeting in Victoria Terrace, Edinburgh. Mr Brown's adherents remained with him, and kept possession of the church in Adam Square.’ It is admitted, in answer to the defenders' statement of facts (Art. 2), that in 1867 the titles of the Adam Square subjects were delivered up to the Adam Square congregation, and that a sum of £50 was then paid by them to the Victoria Terrace congregation, apparently for a renunciation of all claims to the church. It was after this that the Adam Square church was taken by the Improvement Trustees, and that the subjects in Clerk Street were acquired.

“I am of opinion that the circumstances set forth and admitted by the pursuers preclude them from claiming any connection with the congregation referred to in the title by which these subjects are held, and that they have no title to maintain any of the conclusions of the present action.

“Another question, however, has been raised, upon which I should wish to guard myself from being supposed to give any opinion. The pursuers allege that in 1878 the Clerk Street church was finally closed, and that Mr Brown's congregation was then dissolved. That may have been the result of the proceedings which then took place, though the defenders deny it, and plead that they are bound to hold the subjects, or the price obtained for them, in the hope of getting a minister for the congregation in room of Mr Brown, and of thus being able to carry out the trust according to its terms. But whether this be so or not is a question which in my opinion need not be decided in the present action. If an application should be made to the nobile officium of the Court upon the ground that the trust has failed, that matter will be duly considered. But in the meantime the property is in the hands of the survivors of the original trustees, who are not said to be making away with it, or to be otherwise than responsible persons. The allegations as to their having become disqualified by attendance at other churches, such as the Original Seceders Church in Lauriston Street or the Free Church, appear to me insufficient to warrant the intervention of the pursuers, at least in this form of action. The congregation is admittedly in a state of suspended animation, and the church is admittedly closed in the meantime. So long as this is the case by an act to which the pursuers themselves were parties the disqualifying clause cannot be fairly applied to the trustees merely in respect of their attendance at another church, and the pursuers can take no benefit from the fact of such attendance. The utmost that the pursuers can claim in any view is a right to see that the property is not misapplied, and I give no opinion against their title to make an application to the Court in the exercise of its nobile officium.”

The pursuers reclaimed, and before the reclaiming note was discussed the Synod of the United Original Secession Church, with the consent and concurrence of Mr Thomson and Mr Sinton and their wives, the pursuers in the action of declarator presented a petition craving the Court in the

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exercise of its nobile officium, in respect it had become impossible to carry out the trust in the manner originally proposed, to direct the trustees, defenders in the other action, to account for their intromissions and convey the subjects to the petitioners to be administered and applied in support of the Home Mission Fund, the Mutual Assistance Fund, and the Synod's Business and Hall Fund of the United Original Secession Church, or one or more of them; or otherwise to ordain the trustees to pay and convey the funds and heritage in question for such objects as the Court should think most in accordance with the purposes of the trust.

The respondents (defenders in the action) lodged answers, in which they were joined by certain other members of Mr Brown's congregation. They took up the same position as in the action. They stated—“The respondents are all desirous that the said property should continue to be held by Mr Anderson and Mr Lyon upon the existing trust in order that when certain debt of the congregation, which is secured upon the property, is paid off a minister may be obtained who will resume public worship in the church in accordance with the Testimony of the United Original Seceders.

The reclaiming-note and petition were heard together, and in the course of the argument the accounts of the trustees were produced. They showed that the rents were being employed in paying off the debt, and that this would be accomplished in about four years. The pursuers (petitioners) did not make any criticism upon them.

Argued for the pursuers and petitioners—The pursuers had a title to sue. The congregation under Mr Brown had never ceased to belong to the Original United Secession Church. When therefore Mr Brown died, and the congregation dispersed, it was right that the Synod should have possession of the property of the congregation— Craigie v. Marshall, January 25, 1850, 12 D. 523; Couper v. Brown, December 2, 1859, 22 D. 120. The Court had power to vary the application of the funds when they found that a better application could be made of them— Clephane, &c. v. The Magistrates of Edinburgh, February 26, 1869, 7 Macph. (H. of L.) 7. The property of dissenting chapels could be treated in the same way as the funds of charities. If the purposes of the trust had failed, as was the case here, there being no minister and no congregation, and the church being let to another denomination, then the funds should be applied cy-près, as was asked in the prayer of the petition. Such applications of funds had been previously allowed— Attorney—General v. Bunce, April 22, 1868, 6 L.R., Eq. Cas. 563; Grant v M'Queen, May 23, 1877, 4 R. 734; M'Gulloch and Others v. Kirk-Session of Dairy, July 20, 1876, 3 R. 1182; Jarman on Wills, 266.

The defenders (respondents in petition) argued—The Court had no power to order the trustees to sell the property and hand over the proceeds to the Synod, as the Court could do that only in the case of the funds of charities, and here the most important element of charity was absent, viz., there was no pious donor. This property had been bought by subscription among certain persons as private property, and could not be interfered with— Craigie v. Marshall, supra cit., and Couper v. Burn, supra cit.; Mitchell v. Burness, June 19, 1878, 5 R. 954; Bain v. Black, February 22, 1849, 6 Bell's App. 317. It was a matter of contract, not of charitable trust. Assuming that this property was on the same footing as the funds of a charity, and that the Court had power to deal with it, then the Court should not make such order as was asked for in the prayer of the petition. (1) Because it was only to certain kinds of charities that the doctrine of cy-près applied—that was to say, only to charities where the benefit of some general purpose was sought, and not as here to where the funds were restricted to the benefit of some particular object— Clark v. Taylor, July 7, 1853, 1 Drewry's Rep. 642; Boyle's Law of Charities, pp. 149, et seq.; Attorney-General v. Bishop of Oxford, 1 B.C.C. 444, note. The doctrine of cy-près could only be applied where the purposes of the trust had failed, but here the purposes had not failed, as the trustees were paying off the debt, and when that was done they hoped to get a minister and gather together another congregation— Shepherd v. Hutton's Trustees, February 24, 1855, 17 D. 516; M'Dougall, June 29, 1878, 5 R 1014; Managers of King James VI. Hospital of Perth, May 20, 1795, Bell's Folio Cas. 173; Attorney—General v. Oglander, Michaelmas Term, 1790, 3 Brown's Chan. Rep. 166.

At advising—