Episcopal Press and News
CORRECTED: South Carolina Diocese Plans Appeal in Pawley's Island Property Dispute
Episcopal News Service. November 1, 2001 [2001-315]
Jan Nunley
(ENS) Attorneys for the Diocese of South Carolina say they plan to appeal a state judge's ruling last month that the parish of All Saints, Waccamaw in Pawley's Island, South Carolina does not own the 50-acre campus that is also home to the breakaway Anglican Mission in America (AMiA). Instead, the judge ruled, legal title to the property belongs to an unknown group of heirs to the last trustee, and equitable title to the residents of Waccamaw Neck.
Benjamin Allston Moore, of the firm of Buist, Moore, Smythe and McGee, said the team has filed an "motion to alter or amend" the October 15 ruling by Judge John Breeden Jr. If the motion is denied, the matter would go to the state Court of Appeals, Moore said.
Attorneys for the McNair Law Firm of Myrtle Beach, South Carolina, which represents All Saints, did not respond to requests for comment.
The case arose in September of last year when the diocese filed a public notice that All Saints, subject to the canon law of the diocese, holds its property in trust for the diocese, which in turn holds it for the Episcopal Church nationally. Attorneys for the diocese say the notice was filed "out of concern that All Saints might attempt to convey its property" to the AMiA.
The parish then sued to have the diocesan notice removed from public records, claiming--at the time--that legal title belonged entirely to the parish. The parish said they simply complied with diocesan canons as a "matter of courtesy," provided its property rights were not endangered. The diocese's notice, the parish said, put a "cloud" on the title, making it difficult for them to obtain a mortgage free and clear of diocesan approval--something the diocese says they had never tried to do before.
From Church of England to ECUSA
The legal document pertaining to the land title is a trust deed written in 1745 by Percival and Anna Pawley, giving the 50-acre tract to Percival's brother George and to William Poole "in trust for the Inhabitants of Waccamaw Neck for the Use of a Chapple or Church for divine worship of the Church of England established by Law." Poole died in 1750, leaving George Pawley as sole trustee.
The Parish of All Saints--not the congregation--was created in 1767 as a political unit of the royal colony of South Carolina, as well as a body of the Church of England under the authority of the Bishop of London. Its vestry members were elected public officials, who had the power to tax. It also gave the inhabitants of Waccamaw Neck representation in the colonial Commons House of Assembly.
But within 10 years of its creation, All Saints' Tory rector had fled the rebellious American colony and worship "of the Church of England" lapsed until sometime after the conclusion of the Revolution. The Church of England was disestablished in all the former British colonies, although the 1778 and 1790 constitutions of the new State of South Carolina guaranteed existing parishes the right to their property as part of the new Protestant Episcopal Church of the United States of America.
Not until 1813 was All Saints mentioned in records of the Diocese of South Carolina, and the earliest existing vestry minutes date from 1818. The parish was officially incorporated in 1820, and its charter--after several lapses--was renewed for the last time in 1902, pledging the parish to abide by the canons of the Episcopal Church and the Diocese of South Carolina. A deed from the trustees of the diocese, dated 1903, transferred ownership of the property, which had reverted to the bishop and standing committee after the parish's charter lapsed, back to the parish.
Parish claimed ownership for years
The original 1745 deed lay dormant in the state's archives until 1986, when a researcher discovered it and notified the parish. Even so, in June, just two months before oral arguments were heard in the case, All Saints reasserted its claim to own the property outright, either "in fee simple" or through a legal doctrine known as "adverse possession."Under it, a person can gain title to land from the actual owner simply by using the land out in the open for all to see for a period of time set by state law (in South Carolina, it's between 20 and 40 years). If the actual owner doesn't dispute the use of the property through a lawsuit, he or she abandons the rights to the property. Since no descendant of George Pawley had ever claimed the property, theoretically the parish became the owner.
That's certainly been the impression the parish has given bank officers over the years, say diocesan attorneys, citing a long chain of legal precedent that includes mortgages taken out by the parish as recently as February 2001.
There are stiff penalties for misrepresenting ownership of property: South Carolina mortgage fraud statutes carry a fine of up to $1 million or 30 years in prison, or both, for false statements on loan applications.
Sudden reversal
Yet in a startling tactical reversal at the end of August 2001, the parish suddenly began to claim that it wasn't the owner of the property at all, and threw support to a motion for partial summary judgment filed by a guardian ad litem on behalf of the now-unknown descendants of George Pawley that claimed they still owned legal title, despite more than 250 years of virtual legal invisibility. The brief also argued that any of the "inhabitants of Waccamaw Neck," simply by virtue of attending services on the property, exercised the right of possession by beneficiaries given in the original deed, something the diocesan attorneys likened to a frequent customer claiming possession of a retail store.
"All Saints apparently join[ed] in this motion," the diocese told the court, "perhaps out of a belief that [the guardian ad litem's] title theory is its best opportunity to avoid the effect of local and national Episcopal Church canons which limit the alienation of parish property…[A] faction now in control of the Parish sees them as an obstacle to its plans for the property."
Instead, Breeden signed the proposed order submitted by All Saints, saying that the parish did not have legal title. His ruling, if upheld, would send the case into Probate Court, where trustees would have to be appointed to administer the property. And those trustees would have the final say as to how the property would be used--whether to continue as a parish of the Episcopal Church or, potentially, for other purposes, including its use by the AMiA.
Ultimate issue still undecided
Diocesan attorneys complain that Breeden overstepped his authority by stating who the beneficiaries of the 1745 deed are--a task they say is reserved to the Probate Court. Including that judgment, they complained, "appear[s] calculated to enhance All Saints' position in further proceedings in the Probate Court or elsewhere."
"The ruling goes against both the facts and the established law," said Moore. "Either the trust created in 1745 failed because the Church of England was disestablished by law and All Saints has occupied the land since, or the trust was executed when the parish was created in 1767 and the parish has owned the land since.
"But nothing in this order pertains to All Saints' relationship to the canons [which declare the property held in trust for the diocese and national church]. So the ultimate issue has not been decided," Moore added.