A society called Separatists emigrated from Germany to the
United States. They were very poor, and one of them, in 1817,
purchased land in Ohio, for which he gave his bond, and took the
title to himself. Afterwards, they adopted two Constitutions, one
in 1819 and one in 1824, which they signed, and in 1832 obtained an
act of incorporation. The articles of association, or constitutions
of 1819 and 1824, contained a renunciation of individual
property.
The heirs of one of the members who signed these conditions and
died in 1827, cannot maintain a bill of partition.
From 1817 to 1819, the contract between the members and the
person who purchased the property vested in parol and was destitute
of a consideration. No legal rights were vested in the members.
The ancestor of these heirs renounced all right of individual
property, when he signed the articles, and did so upon the
consideration that the society would support him in sickness and in
health, and this was deemed by him an adequate compensation for his
labor and property, contributed to the common stock.
Page 55 U. S. 590
The principles of the association were that land and other
property were to be acquired by the members, but they were not to
be vested with the fee of the land. Hence at the death of one of
them, no right of property descended to his heirs. There is no
legal objection to such a partnership, nor can it be considered a
forfeiture of individual rights for the community to succeed to his
share, because it was a matter of voluntary contract.
Nor do the articles of association constitute a perpetuity. The
society exists at the will of its members, a majority of whom may
at any time order a sale of the property, and break up the
association.
The evidence shows that they are a moral, religious, and
industrious people.
The bill was filed by John G. Goesele and six other persons, as
heirs at law of Johannes Goesele, deceased, against Bimeler and
twenty-four other persons, members of the Society of
Separatists.
The facts of the case are stated in the opinion of the
court.
The circuit court dismissed the bill, and the complainants
appealed to this Court.
Page 55 U. S. 602
MR. JUSTICE McLEAN delivered the opinion of the Court.
In their bill the complainants represent that they are the heirs
at law of Johannes Goesele, who died at Zoar, in the County of
Tuscarawas, Ohio, in the year 1827; that the said Johannes, in his
lifetime, associated himself with the defendants, Bimeler and
others, and formed a Society of Separatists, and in the year 1817
they purchased of one Godfrey Haga, of Philadelphia, a tract of
land situated in said county, containing 5,500 acres; that
afterwards other purchases were made which, when added to the first
purchase, amounting to 10,000 acres, with a large number of town
lots, and other property procured about the same time; that these
purchases were made on behalf of Goesele, deceased, and his
associates, and for their use, and the purchase money was paid by
their joint labor and money; that Bimeler acted fraudulently as
their agent, in taking the deed and title papers to himself and his
heirs forever.
Page 55 U. S. 603
They further represent that many of his associates sold their
interest to their ancestor on leaving the society. And the
defendants allege that, as heirs of their ancestor, they are
entitled to one hundredth portion of the estate now held by
Bimeler, and that they have requested the defendants to make
partition of the estate, which has been refused; that Bimeler,
although often requested, has refused to convey to the complainants
any part of the estate, and they pray that he may be compelled to
give a full and true description of the property held by him as
stated, and that on a final hearing he may be decreed to make
partition of the said property, and to make a good deed in fee
simple to the complainants, for so much of the said property as may
be found to belong to them.
In the year 1817, the members of the above association emigrated
from Germany to the United States. They came from the Kingdom of
Wuertemberg, where they had been known for years as a religious
society called Separatists. They were much persecuted on account of
their religion. Goesele, the ancestor of the complainants, with
another member, had been imprisoned for nine years, and the safety
of Bimeler depended on his frequent changes of residence and living
in the utmost privacy. In that country they sought to establish
themselves by purchasing land, but they found that the laws would
not allow them this privilege. Disheartened by persecution and
injustice, they came to this country in pursuit of civil and
religious liberty. When they arrived at Philadelphia, they were in
a destitute condition. They were supported while in that city, and
enabled to travel to the place where they now live, by the
charities of the Friend Quakers of Philadelphia and of the City of
London. These contributions amounted to eighteen dollars to each
person. A large majority of the society consisted of women and
children.
While at Philadelphia, Bimeler, the head and principal man of
the association, purchased in his own name, from Godfrey Haga, the
five thousand five hundred acres of land, as stated in the bill. A
credit of thirteen years was given, three years without interest. A
deed to Bimeler and his heirs was executed for the land 7 May,
1818; a mortgage to secure the consideration of $15,000 was
executed. On their arrival at the place of their destination, they
found it an unbroken forest; their means were exhausted, and they
had no other dependence than the labor of their hands. They were no
strangers to a rigid economy, and they were industrious from
principle.
At the time of their settlement at Zoar, they did not
contemplate a community of property. On the 15th of April, 1819,
articles of association were drawn up and signed by the
Page 55 U. S. 604
members of the society, consisting of fifty-three males and one
hundred and four females. In the preamble they say
"that the members of the society have, in a spirit of Christian
love, agreed to unite in a communion of property, according to the
rules and regulations specified."
The members renounce all individual ownership of property,
present or future, real or personal, and transfer the same to three
directors, elected by themselves annually; that they shall conduct
the business of the society, take possession of all its property,
and account to the society for all their transactions. Members who
leave the society are to receive no compensation for their labor or
property contributed unless an allowance be made them by a majority
of the society.
These articles continued in force until the 18th of March, 1824,
when amendatory articles were drawn up and signed by the members at
that time, consisting of sixty males and one hundred females. In
these articles an entire union of property is declared, and a
renunciation of individual ownership. Males of the age of
twenty-one, and females of the age of eighteen, become members by
signing the articles. New members are received in this way. The
directors elected by the society conduct the affairs of the
association, and provide for the boarding, lodging, and clothing of
the members. The directors are to apply themselves for the common
benefit of the society, provide for the children, determine
disputes among the members, with a right of appeal to the board of
arbitration. Other provisions were made for the expulsion of
members and the general good order and welfare of the society.
In the year 1832, the society was incorporated by a law of the
state, which gave to them the ordinary powers of a corporation. On
the 14th of May, 1833, a Constitution was adopted under the act,
which was signed by fifty-one males and one hundred and three
females. The Constitution embodies substantially the regulations
contained in the preceding articles and some others conformably
with the corporate powers conferred.
This is the outline of the association formed at Zoar. It
appears a different plan was at first adopted. Each family was to
select from the general tract as many acres as it could pay for,
and improve it, living on its own industry, and from the same
source paying for the land. But this plan was found impracticable,
and in less than two years it was abandoned and the first articles
of association were adopted.
The ancestor of the complainant, as stated, died in 1827, a
member of the society. His name was signed to the articles of 1819
and 1824. There was no evidence in the case conducing to prove any
contract except that which arises from the articles
Page 55 U. S. 605
referred to. On the first payment made for the land, it appeared
that Goesele paid a small sum that remained unexpended of the
eighteen dollars he received at Philadelphia.
The answer denies the allegations of the bill charging fraud,
and every allegation to charge the defendants, except the purchase
of the land and the articles referred to.
It appears, by great industry, economy, good management, and
energy, the settlement at Zoar has prospered more than any part of
the surrounding country. It surpasses, probably, all other
neighborhoods in the state in the neatness and productiveness of
its agriculture, in the mechanic arts, and in manufacturing by
machinery. The value of the property is now estimated by
complainant's counsel to be more than a million of dollars. This is
a most extraordinary advance by the labor of that community, about
two-thirds of which consists of females.
In view of the facts stated, it is not perceived how the case
made in the bill can be sustained. A partition is prayed for, but
there is no evidence on which such a right can be founded. The
plan, as stated, first agreed upon at Zoar for individual
proprietorship and labor was abandoned in less than two years. It
was a parol contract, no consideration being paid. No right was
acquired by the ancestor of the complainant on this ground. He then
signed the first articles, which, like the amended articles,
renounced individual ownership of property, and an agreement was
made to labor for the community, in common with others, for their
comfortable maintenance. All individual right of property became
merged in the general right of the association. He had no
individual right, and could transmit none to his heirs. It is
strange that the complainants should ask a partition through their
ancestor when, by the terms of his contract, he could have no
divisible interest. They who now enjoy the property enjoy it under
his express contract.
But if there were a right of partition by the complainants,
there is no such statement in the bill as would authorize the court
to decree it. For the time that Goesele lived, what was the value
of his labor in comparison with the labor of the others?
Twenty-five years have elapsed since his death. The property has
increased in value seven hundred percent, and of this property
partition is prayed. But there is not a shadow of evidence to
sustain the right. The proofs and the statements in the bill are as
remote and inconsistent as can well be conceived.
The fraud charged on Bimeler in the purchase of the land, if
true, could not help the case made in the bill. But the charge has
no foundation. Bimeler purchased the land in his own
Page 55 U. S. 606
name, and became responsible for the payment of the
consideration. And he retained the title until the purchase money
was paid, and an act of incorporation was obtained, when he signed
the articles, and placed the property under the control of the
society, he having no greater interest in it than any other
individual. But before this he openly declared that he held the
land in trust for the society. As an honest man, he could not
change, if in his power, the relation he bore to the vendor, until
the consideration was paid. In this matter, the conduct of Bimeler
is not only not fraudulent, but it was above reproach. It was wise
and most judicious to secure the best interests of the
association.
The articles of 1819 and 1824 are objected to as not
constituting a contract which a court of equity would enforce. And
it is said that chancery will not enforce a forfeiture. As a
general rule, chancery may not enforce a forfeiture, but will it
relieve an individual from his contract, entered into fairly, and
for a valuable consideration? What is there in either of these
articles that is contrary to good morals or that is opposed to the
policy of the laws? An association of individuals is formed under a
religious influence who are in a destitute condition, having little
to rely on for their support but their industry, and they agree to
labor in common for the good of the society and a comfortable
maintenance for each individual, and whatever shall be acquired
beyond this shall go to the common stock. This contract provides
for every member of the community, in sickness and in health and
under whatsoever misfortune may occur. And this is equal to the
independence and comforts ordinarily enjoyed.
The ancestor of the complainants entered into the contract
fairly and with a full understanding of its conditions. The
consideration of his comfortable maintenance, under all
circumstances, was deemed by him an adequate compensation for his
labor and property contributed to the common stock. But it is not
shown that Goesele or any other member contributed to the general
fund, with the exception of a small sum by Goesele, which probably
could not have exceeded five dollars. The members of the
association were poor, and were unable to contribute anything but
labor. In this way the land purchased by Bimeler was paid for.
The complainants speak of the interest of their ancestor in the
real and personal estate owned by the association, and their
counsel contend that the articles did not divest him of either, but
both descended to his heirs at law at his death.
This argument does not seem to comprehend the principles of the
association. Land and other property were to be
Page 55 U. S. 607
acquired by the members, but they were not to be vested with the
fee of the land. While they remained in the society under its
general regulations, the products of their labor on the land and
otherwise were applied, so far as necessary, to their support.
Beyond this, they were to have no interest in the land or in the
personal property. Many of the members were aged females; others,
from sickness or disease, were unable to labor, but everyone,
whether able to labor or not, was provided for by the labor of the
community. This was a benevolent scheme, and from its character
might be properly denominated a charity. But from the nature of the
association and the object to be attained, it is clear the
individual members could have no rights to the property except its
use under the restrictions imposed by the articles. The whole
policy of the association was founded on a principle which excluded
individual ownership. Such an ownership would defeat the great
object in view by necessarily giving to the association a temporary
character. If the interests of its members could be transferred, or
pass by descent, the maintenance of the community would be
impossible. In the natural course of things, the ownership of the
property in a few years, by transfer and descent, would pass out of
the community into the hands of strangers, and thereby defeat the
object in view.
By disclaiming all individual ownership of the property acquired
by their labor, for the benefits secured by the articles, the
members give durability to the fund accumulated and to the
benevolent purposes to which it is applied. No legal objection is
perceived to such a partnership. If members separate themselves
from the society, their interest in the property ceases, and new
members that may be admitted, under the articles, enjoy the
advantages common to all.
The counsel for the complainants imagine the original members
possessed property, real and personal, before they entered into the
association, which is contrary to the facts of the case, and then
contend that, having executed no conveyance of the property, on the
death of the member it descended to his heirs at law.
It is always desirable that legal principles should be applied
to the facts of the case. When the members first formed the
association, they were destitute of property. The purchase of the
land by Bimeler had been made, but not paid for; and the members
had no means of payment but by the labor of their hands. This they
agreed to give, in consideration of being supported in sickness and
in health, disclaiming, at the same time, any individual claim of
ownership to any property which should be acquired by the
community. This statement of facts
Page 55 U. S. 608
obviates many of the objections urged by complainants' counsel.
If the members of the association had no interest in the land when
they signed the articles, no conveyance of it by them was
necessary. They stipulated a compensation for their future labor in
the support to be given them, and disclaimed the ownership of all
property acquired.
It is said where a member is excommunicated or leaves the
society he forfeits his rights, and that chancery will not enforce
a forfeiture. What is the extent of this forfeiture? It is the
right to a support from the society. And this is certainly
reasonable. Can a member expect to be supported by the society when
he refuses to perform his part of the contract which entitles him
to a support? He claims pay for his labor. He has been paid for
this, in pursuance of his own contract. In sickness and in health
he has been clothed and fed and a home provided for him. But he
claims payment for property which he surrendered to the association
at the time he became a member of it, by signing the articles. The
ownership of this property he relinquished to his associates as a
part of the contract, and for the considerations named, all the
demands for such property in the language of the articles signed,
"the individual abolished and abrogated for himself and his
heirs."
Can property thus conveyed be deemed forfeited, if not
recoverable? A forfeiture is against the will of the owner. Where
property is conveyed under a fair contract and for a valuable
consideration, is not the term "forfeited" misapplied if such
conveyance be held valid? Chancery is not asked to enforce a
forfeiture in this case. No property is shown to have been
transferred to the association by the ancestor of the complainants.
But if property had been given by the ancestor, would a court of
chancery direct such property to be surrendered or paid for against
the express contract of the owner? The surrender or giving up of
the property was a part of the consideration on which the
association stipulated to support him. It cannot be separated from
that agreement. And it is clear, where the fault of not carrying
out the contract is not attributable to the association, but to the
member, he cannot have the aid of a court of chancery.
Do the articles constitute a perpetuity? We all think that they
do not. They provide for the continuance of the association an
indefinite period of time, in the exercise of the discretion of its
members. But there is no obligation to this extent. The majority of
the members may require a sale of the property and break up the
association. In fact, the majority governs, by the election of
officers. Members may be expelled from the society and new ones
admitted under established rules. Whilst
Page 55 U. S. 609
the society has the means of perpetuating its existence, it may
be said to depend for its continuance on the will of a majority of
its members.
As the law now stands in England, a conveyance by executory
devises, to be good, cannot extend beyond a life or lives in being
and twenty-one years and the fraction of another year to reach the
case of a posthumous child.
Atkinson v. Hutchinson, 3
P.Wms. 258;
Long v. Blackall, 7 Term 100.
There are many depositions in the case, taken in behalf of the
complainants, by persons who have been expelled from the society,
or, having left it, show a strong hostility to Bimeler. They
represent his conduct as tyrannical and oppressive to the members
of the association, and as controlling its actions absolutely. And
several instances are given to impeach his moral character and his
integrity. Two of the witnesses say that he drives a splendid
carriage and horses.
In regard to the carriage, it is proved to be a very ordinary
one, worth about three hundred dollars, one of his horses worth
about twenty dollars and the other thirty forty. By respectable
persons out of the society, Bimeler's character is sustained for
integrity and morality, and several instances are given where, even
in small matters, he deferred to the decision of the trustees
against his own inclination. And many facts are proved wholly
inconsistent with the charge of oppression.
That Bimeler is a man of great energy and of high capacity for
business cannot be doubted. The present prosperity of Zoar is
evidence of this. There are few men to be found anywhere who, under
similar circumstances, would have been equally successful. The
people of his charge are proved to be moral and religious. It is
said that although the society has lived at Zoar for more than
thirty years, no criminal prosecution has been instituted against
anyone of its members. The most respectable men who live near the
village say that the industry and enterprise of the people of Zoar
have advanced property in the vicinity ten percent
Bimeler has a difficult part to act. As the head and leader of
the society, his conduct is narrowly watched, and often
misconstrued. Narrow minds in such an association will be
influenced by petty jealousies and unjust surmises. To insure
success, these must be overcome or disregarded. The most exemplary
conduct and conscientious discharge of duty may not protect an
individual from censure. On a full view of the evidence, we are
convinced that by a part of the witnesses great injustice is done
to the character of Bimeler. On a deliberate consideration of all
the facts in the case, we think there is no ground to authorize the
relief prayed for by the
Page 55 U. S. 610
complainants. The decree of the circuit court is therefore
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio, and was argued by counsel. On consideration whereof it is now
here ordered, adjudged, and decreed by this Court that the decree
of the said circuit court in this cause be and the same is hereby
affirmed with costs.