The opinion of the court was delivered by
Mr. Chiee Justice Simpson.The contest in this case is in reference to a certain lot of land with a church edifice thereon, located in the city of Charleston. It is admitted that the land originally belonged to the plaintiff, and the present contest has grown out of the following facts and circumstances.
The plaintiff is, and has been for years, a body politic and corporate, under the laws of this State. In May, 1847, it conveyed the land in dispute, by indenture of lease, to John Caldwell and others, the survivor or survivors of them, and their assigns for a term of ninety-nine years, with the privilege of a renewal of the *310same for a like period, and so on from time to time forever, the same being made upon the consideration and agreement therein set forth, that the grantees or their assigns should, within a reasonable time after the execution of said indenture, erect upon the premises granted a Presbyterian church, and that the said lots shall be used for no other purpose whatever other than for the erection of the said Presbyterian church, and that in case of any attempt on the part of the said grantees or their assigns to convert the said lots granted to any purpose whatsoever other than those therein declared, then and thereafter it should be lawful for the grantor to re-enter and the same to have again and repossess, as in their first and former estate, right, and title; and further, that said grantee or assigns should apply to the legislature of the State at its next session for an act of incorporation, creating the said grantees, and such other persons as they should admit, a body politic and corporate under the name of the “Glebe Street Presbyterian Church * * * upon the creation of which, the said grantees should assign and set over the said lease unto the said ‘Glebe Street Presbyterian Church.’ ”
In pursuance of this agreement application was made to the legislature, and by act of 1847, the free white persons who were then, or who might thereafter become, members of the Glebe Street Presbyterian Church of the city of Charleston, were duly incorporated under the name and style aforesaid, for the term of fourteen years, and thereupon the grantees aforesaid, to wit, Caldwell and others, in consideration of the agreement contained in the indenture aforesaid, did, on December —-, 1847, convey and assign the said indenture of lease, and their rights thereunder to the said Glebe Street Presbyterian Church. After-wards, to wit, in 1856, the plaintiffs, who still held the fee in said premises, for and in consideration of $2,400 paid by the said Glebe Street Presbyterian Church to the plaintiffs, by deed, setting forth the indenture, and the assignment thereof, bargained, sold, and released the said premises unto the said Glebe Street Church and their assigns forever, warranting and defending the-same against all persons whatsoever.
In 1858, the Zion Presbyterian Church of Charleston, defendant, was constituted a body politic and corporate for a period of *311twenty-one years. This charter expired in 1879. In 1878, however, public notice having been given of their purpose to apply for a renewal of-charter, the president, secretary, and other members of said church petitioned the clerk of the court for Charleston County for a charter, under the act of 1874. This petition, though filed before the expiration of the previous charter, was not acted upon until in September, 1880, when a charter was granted.
In 1866, the Glebe Street Church, its first charter having expired in 1859, at which time it had been renewed for a period of fourteen years, conveyed by deed, dated May 10, 1866, the said premises to the said Zion Presbyterian Church, reciting therein that the congregation heretofore worshipping in the said Glebe Street Church had united with the congregation of white persons worshipping in the Zion Presbyterian Church, and that the two had agreed to form one congregation, and that all church property standing in the name of the Glebe Street Church should belong to the-Zion Church, the said Zion Presbyterian Church having assumed the payment and discharge of the liens upon said land. The Zion Presbyterian Church took possession, under this deed, and continued in possession from its date until the — day of-, when it contracted to sell the same to certain trustees of the African Methodist Episcopal Church, known as the Mount Zion African Methodist Episcopal Church, and to execute a conveyance thereof on the payment of the purchase money, in pursuance of which contract the said trustees were duly, let into possession.
Under these circumstances the action below was commenced. First, for the recovery of the premises, but in the event that such recovery could not be had, then that the defendant be enjoined from executing a conveyance of said premises to the said African Methodist Episcopal Church, or to any one else, contrary to the alleged conditions upon which the defendants held the property. This action was founded upon -the following propositions contended for by the plaintiffs: 1. That the lease by plaintiff Caldwell and others, and the subsequent conveyance by the plaintiff to the Glebe Street Church, should be construed together, and that when thus construed, the conditions in the lease should *312attach to the conveyance, thereby preventing said Glebe Street Church from conveying the property to any other use than for a Presbyterian church, on pain of forfeiture and reversion to the plaintiff. 2. That the Glebe Street Presbyterian Church made no alienation during its corporate existence of the property in question, and its charter having expired in 1873, and not being a moneyed or trading corporation, said property reverted to the plaintiff, the original grantor. 3. Admitting that the deed to the Zion Church, in 1866, was properly executed, and having been executed before the expiration of the charter of the Glebe Street Church, thereby prevented a reversion of said expiration, then it is claimed that the charter of the Zion Presbyterian Church has expired without and before alienation, and on that account a reversion has taken place.
The case was heard by his honor, Judge Kershaw, without a jury, upon testimony taken before the master, and reported to the court. His honor held, first, that inasmuch as the action in one of its phases involved title to land, an issue was raised thereby which could be tried by a jury only, unless a jury trial had been waived; and there being no waiver, he could not hear that portion of the case. He, however, discussed the questiens involving the title and then proceeded to the consideration of the right of plaintiff to the equitable relief demanded, to wdt, a restraining order intended to confine the defendants to the use of the property, according to the trusts and conditions contained in the original lease to Caldwell and others.
On the question of the right of reversion to the plaintiff, he held that the Glebe Street Church, to whom the plaintiff had conveyed, being a corporation other than a moneyed or trading corporation, that reversion would take place to the plaintiff on the dissolution of the said Glebe Street Church by expiration of its charter, unless before that time a valid alienation of the land had been made by said Glebe Street Church corporation, holding it to be a general principle of law, that upon the expiration of the charters of all corporations, causing their dissolution, other than moneyed, trading, or municipal corporations, the property thereof reverts to the grantor, unless before the dissolu*313tion a valid alienation lias been made, subject, however, to the rights of creditors and stockholders, if any.
He held, further, that a valid alienation of the property in question had been made by the Glebe Street Church during its corporate existence to the defendant, the Zion Presbyterian Church, to wit, by deed in 1866; and therefore notwithstanding the subsequent dissolution of the Glebe Street Church corporation by expiration of its charter in 1873, no reversion could be claimed, alienation having been made before that event. He held, further, that there had been no such dissolution of the Zion Presbyterian Church by expiration of its charter as to entitle the plaintiff' to a reversion on that ground. And holding, further, that the original lease to Caldwell and others, which had been assigned to the Glebe Street Church, had become merged in the fee simple, which said church afterwards obtained from the plaintiff, thereby vacating and annulling the conditions of said lease, he dismissed the complaint with costs.
Both parties have appealed, the plaintiff assigning error to all of the rulings above, except the second, and the defendant contesting the second, claiming that the ancient right of reverter in this State “is obsolete and odious,” or, if existing at all, it exists only as to corporations purely public and eleemosynary.
We concur with the Circuit Judge in all of his rulings, and he has so fully and ably discussed the principles upon which these rulings were based, sustaining them, as he does, by the authorities cited in the decree, that we might content ourselves with simply referring to and adopting the decree as our own, which we would do, except for the fact it would be best, perhaps, that at least the distinct points made and decided should appear in this opinion.
The action below was intended to accomplish one of two purposes, to wit, first, the recovery of the land in dispute, and, second, failing in the first, a restraining order as demanded in the complaint. The first was a case at law, involving an issue of title to real estate, and nothing more. This was a jury case, and the Circuit Judge was certainly right in holding that, in the absence of waiver, he could not try it, and he distinctly states that there was no waiver. DeWalt v. Kinard, 19 S. C., 291.
*314As to the second, to wit, the right of reverter in a case of this kind. While the view which we have taken as to the third ground of appeal removes this question from the case to a great extent, and therefore renders its adjudication unnecessary here, yet without committing the court to a final conclusion, we will say that we think the authorities referred to by the Circuit Judge fully sustain his decree thereon, and we need not do more, therefore, than simply cite these authorities. See 2 Kent, 282, 307; 1 Bl. Com., 484; Angell & Ames Corp., § 779n; Dill. Mun. Corp., § 113; Field. Corp., § 491; Bacon v. Robertson, 18 How., 480; Elliott v. Morris, Harp. Eq., 281.
The judge, however, held that the plaintiffs could not avail themselves of this doctrine in this case, because the Glebe Street Church, before the expiration of its charter, had conveyed to the defendant. It is not denied that if this be true, it would defeat the reversion, but it is denied that a valid deed had been executed by the Glebe Street Church to the defendant. So that the only point in this question is, was there a valid deed executed by the Glebe Street Church in 1866 to the defendant? There is no doubt that a paper purporting to be a deed between these parties and conveying this land was executed and delivered at the time stated, the date of the execution being years before the expiration of the charter of the Glebe Street Church. The deed was drawn by a distinguished attorney of Charleston, who also witnessed it. It was recorded, was regular in form and execution in every respect, except that instead of having an established corporation seal impressed, the seal used consisted of a wafer attached. The judge held that this seal was sufficient, if so intended, citing Relph & Co. v. Gist, 4 McCord, 267; Angell & Ames Corp., § 218 ; Decker v. Freeman, 3 Greenl., 338. Whether it was so intended was a question of fact which the judge, upon the evidence, solved in favor of the deed. We think the testimony sustains his conclusion.
Next. The plaintiff contends that defendant’s charter having expired since its purchase of the land, with no alienation before said expiration, that reverter has taken place on that account, and therefore their action should have been sustained. The Circuit Judge overruled this position, and we think, upon the facts, *315that he was right. .The defendant’s original charter was obtained in 1858 for a term of twenty-one years. In 1878, the year before the expiration of this charter by its own terms, the church, through its officers and other members, gave notice of its purpose to apply to the clerk of the court, under the act of 1874, for a renewal of its charter, and filed a petition to that end. This petition, though thus early filed, was not acted upon by the clerk until 1880. Why this delay, is not stated, but it does not seem to have been the fault of the church, nor does it appear that the church had abandoned its right to the renewal, of which notice had been given. The clerk, horvever, acted in 1880, and granted a charter. We think with the Circuit Judge, that under the circumstances, and in analogy to the execution of a sheriff’s deed relating back to the sale when executed after the sale, and protecting a defendant in possession, that this charter should relate back to the notice and petition. McCall v. Campbell, MSS. Dec.; Kingman v. Glover, 3 Rich., 27; Bank v. Manufacturing Co., 3 Strob., 192. The granting of this’new charter was held by the Circuit Judge to be in effect a renewal of the old, and therefore the property of the old was still preserved and retained. See Attorney General v. Clergy Society, 10 Rich. Eq., 604; Ang. & Ames Corp., § 780.
Lastly. Did the Circuit Judge err in holding that the conditions of the lease did not attach to the subsequent deed conveying the land in fee to the Glebe Street Church ? We think not. That deed was absolute on its face and in its terms. No such conditions as those appearing in the lease were incorporated in the deed. It was executed upon a further and valuable money consideration, the sum of $2,400, which was paid. It conveyed the fee, and we can see no reason why, under the doctrine of merger, the lease was not “drowned” in the higher estate the moment the Glebe Street Church received the deed and took possession thereunder. It was said in Mangum v. Piester (16 S. C., 330), sustained by Blackstone and Kent, that where two estates meet in the same person, without any intermediate estate, the less is merged in the greater. Here these facts occurred, and merger must have been the result.
*316It is the judgment of this court that the judgment of the Circuit Court be affirmed.