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South Carolina diocese plans appeal in Pawley's Island property dispute

2001-315

South Carolina diocese plans appeal in Pawley's Island property dispute

by Jan Nunley
jnunley@episcopalchurch.org

     (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 owns 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.

-- The Rev. Jan Nunley is deputy director of Episcopal News Service.