is used for the care of lots thus provided. 
A deposit of fifty (50) dollars is necessary 
to insure the care of lots in the old part 
of the cemetery, which are 16 feet square. 
In the new addition, for lots over 16 feet 
square, a deposit at the rate of twenty-five 
(25) cents per square foot is required for 
perpetual care.” 
I find nothing in the form of deed or 
the rules and regulations now in force to 
entitle the association to bestow care upon 
the lots at the expense of the owners, 
without authority from the owners and a 
promise to pay therefor. I do not doubt, 
however, that the language of the deeds 
and rules of the cemetery association 
might be so changed as to impose such 
liability on subsequent purchasers of lots. 
I conclude that liability for the care of 
the old lots in this cemetery cannot be 
imposed upon the owners, for the reason 
that the past practices of the association 
are inconsistent with any understanding 
that such liability exists. Apparently, it 
has been understood, and under the new 
rules is still understood that there is no 
obligation on the part of a lot owner to 
have any care bestowed upon his lot. One 
of the rules says : 
“Upon application to the secretary of 
the association such special care zmll be 
gh’en to lots as the ozvner of such lot or 
lots may designate in a written order filed 
with the secretary of the association, to 
whom the fee should be paid.” 
In other words, the rules plainly leave 
the question as to what “work such as 
sodding, grading, cultivating or watering 
flowers” shall be done to the desires of 
the lot owner. 
In my judgment, the situation is gov- 
erned by the reasoning of the Springfield, 
Mo., Court of Appeals in the case of Mo- 
nett Lodge No. 106, I. O. O. F., vs. Hart- 
man, 185 Missouri Appeal Report, 148. 
That was a case where plaintiff sued to 
recover for care bestowed upon a lot in 
its cemetery owned by defendant. Decid- 
ing against the right to recover, the court 
said : 
“There is nothing in the recitals of the 
certificate or conveyance of this burial lot 
making a direct or specific promise or 
agreement of the vendee to pay for the 
future care of the lot ; in fact, there is 
nothing at all said about paying for such 
future care. It is the use of the lot ‘for 
the purposes of sepulcher’ that is stipu- 
lated to be subject to the rules and regu- 
lations adopted by the lodge and subject 
to amendment thereby. This plainly re- 
fers to the right to regulate the manner of 
burial, etc., and is confined to matters 
connected with the burying of the dead 
therein and in no way imposes a personal 
obligation to pay for the future care of 
the lot or to reimburse the lodge for doing 
so. Nor can the reservation of the ‘con- 
trol of said lot as part of the cemetery’ 
be construed to Impose a personal obliga- 
tion on the grantee to pay for the future 
care of the same. Should one person rent 
or sell another a tract of land and re- 
PARK AND CEMETERY. 
serve the control over it as to its use for 
residence purposes, such person could not 
himself improve the property with walks 
and lawns and dwelling houses and re- 
cover from the grantee the cost thereof. 
It seems to us that by the most liberal 
construction no personal obligation was 
imposed on defendant to pay for the future 
care of this lot, or rather to reimburse 
plaintiff for doing so.” 
In the Missouri case, it appeared that 
when defendant bought his lot there was 
a rule of the plaintiff in force under which 
the plaintiff was entitled to $1.50 a year 
for caring for a lot, and that for several 
years the defendant paid this fee, but he 
refused to pay after the fee was raised to 
$2, and plaintiff sued to recover for two 
years’ care on the increased basis. After 
setting forth the facts of the case, the 
Court of Appeals said : 
“Does any or all of these facts raise a 
personal obligation on a lot owner from 
which he cannot escape to pay yearly and 
perpetually a sum which may be increased 
from time to time for the keeping and care 
of such lot? We think not. If so, the 
obligation would follow the ownership of 
the lot and become a personal debt of his 
heirs and assigns. It would raise such 
personal obligation against a person who, 
as an act of generosity or charity, might 
be willing to pay the purchase price of a 
lot for the burial of a friend or stranger. 
“We are not discussing the right of 
plaintiff to adopt and enforce the rules it 
• has as regulating and controlling the use 
and care of the cemetery or enforcing the 
forfeiture provisions. That is not before 
us. Nor are we discussing any moral 
obligation of the defendant to pay for 
properly caring for a place of burial of 
those related to him.. That obligation 
would rest on defendant regardless of the 
place of burial. We are now discussing 
the legal obligation to pay plaintiff, and 
are reminded that enforceable contracts 
are not made except by consent of the 
parties and no one becomes indebted to 
another by contract against his will. 
“It may be that the owners of this ceme- 
tery might by placing a specific stipulation 
to that effect in the certificate or convey- 
ance of the lots have imposed on the 
grantee accepting the same a personal obli- 
gation to pay for the keep of the lots an 
amount then fixed or to be fixed and 
changed within reasonable limits by proper 
authority. The acceptance of a conveyance 
of land with an express recital of the obli- 
gation of the grantee to pay money or 
discharge an obligation makes the grantee 
personally liable.” 
The later and comparatively recent de- 
cision of the Massachusetts Supreme Judi- 
cial Court, handed down in the case of 
Green vs. Danahy, 111 Northeastern Re- 
porter, 675, is not in conflict with the 
Missouri decision, although deciding that, 
under the facts of the case before the 
Massachusetts court, defendant was not 
liable for removing a body from plain- 
173 
tiff's lot, burying it in another lot on 
plaintiff's failure to clear and care for the 
lot in proper manner. 
In the Massachusetts case, it appeared 
that defendant was in control of a Roman 
Catholic cemetery and issued a lot certifi- 
cate to plaintiff in which it was recited 
that the right of burial was “subject always 
to the following regulations, or such oth- 
ers as may be from time to time pre- 
scribed in relation to burials in said ceme- 
tery.” It also appeared that, while plain- 
tiff was making a choice of lots, defendant 
told him that plaintiff must assume the 
duty of grading and caring for the lot that 
he purchased, and if he failed to perform 
that duty the defendant would have re- 
course to drastic measures which might 
go so far as to cause the removal of the 
remains that had been interred in it; that 
the price of the lot was made very low 
because of this burden that was imposed 
upon the purchaser. Plaintiff did not ob- 
ject to this orally stated condition. The 
trial court further found “that the plain- 
tiff neither graded nor cared for the lot in 
question at any time, but permitted it to 
remain in a rough, unimproved condition 
and allowed grass, weeds, and brush to 
grow wild upon it, so that its appearance 
became unsightly, unkeippt and neglected 
and not in conformity with the other ad- 
joining parts of the cemetery.” He buried 
his mother’s remains in the lot, but de- 
fendant removed them without plaintiff’s 
knowledge or consent after plaintiff had 
neglected the lot for several years. In 
upholding the action of the trial judge in 
dismissing plaintiff's suit to compel de- 
fendant to recognize plaintiff’s right to 
make burial in the particular lot, the Su- 
preme Judicial Court said : 
“The right which the plaintiff received 
under this certificate was merely a right 
of burial. It was merely a license or 
privilege of burial, and the terms upon 
which it could be exercised were subject 
to such reasonable rules and regulations 
as the defendant should from time to time 
impose. . . . The provision in the certifi- 
cate that it is granted subject to the regu- 
lations therein contained and ‘such others 
as may be from time to time prescribed 
in relation to burial in said cemetery’ au- 
thorized the imposition of regulations in 
addition to those expressly stated in the 
certificate, and such regulations properly 
might be in writing or orally communi- 
cated when the certificate was issued, and 
the consideration was paid therefor. . . . 
The evidence of the conversation between 
the parties when the certificate was issued, 
wherein the plaintiff agreed to grade and 
care for the lot, was properly admitted.” 
Thus it will be seen that in both the 
Missouri and the Massachusetts case the 
question of liability of the owner to keep 
his lot in proper condition was based on 
the fact whether or not he assumed that 
duty when he bought his lot. 
So far as I am able to ascertain, this 
precise question has not been passed upon 
by the appellate courts of Illinois, but it 
