Opinion by

This is a petition praying for the apportionment of a municipal claim. It is presented pursuant to the provisions of the act of March 22,1869, which provides, inter alia, that when “ it shall appear by affidavit of claimant or defendant, or other proper evidence, that ” the lot against which the lien is filed, “ in fact consists of two or more lots belonging to different persons,” an apportionment shall be permitted. The petitioners are the board of trustees of the First Baptist Church of Passyunk. The only recorded title to the lot against which the claim is filed is in the First Baptist Church of Passyunk. A part of the lot is occupied by the church buildings. The balance of it has been converted into a cemetery. Cemetery lots were sold by the church to a number of persons. The unrecorded documents of title, delivered to the purchasers of lots, recite that the church grants, bargains and sells unto the grantees, their heirs and assigns, a certain lot or piece of ground, indicated on a certain map or plan, together with the ways, rights and privileges thereunto belonging, to have and to hold the same unto the said grantees, their heirs and assigns, forever, “ as a cemetery or burial place, upon the terms and conditions limitations and restrictions mentioned and contained in a certain schedule indorsed hereon and for no other purpose whatever.”

The appellant contends that by this form of document the lot owners in the cemetery acquired an interest in the land; that thereby they became owners of parts of the lot against which the claim has been filed, and that among them, and the petitioner the claim should be apportioned. Research and ability are evinced bjr the brief of appellant’s counsel in the discussion of the character of the title acquired by lot owners in cemeteries. It does not seem to us necessary, however, to enter upon this discussion in this case. Assuming, for the purposes of this decision, that the paper writing held by the lot owners conveyed an interest in the soil, is the ownership thus created of a kind contemplated by the act of 1869? By the writing there is a definite circumscription of the use. The lot is to be used as a cemetery or burial place and for no other purpose whatever. Again, the ownership is restricted by such conditions, limitations and restrictions as are contained in the schedule indorsed on the document. The schedule shows that the *379church retains the care and management of the cemetery within its own control or that of its appointees. It retains the power to assess for the maintenance of the cemetery in good order, and in this connection reserves the right “ generally to do all such matters and things as may be reasonable in the premises.” The right is also reserved to make the expense of keeping the vaults in repair a lien upon the lots. The lot owner is deprived of the use of the lot as a burial place so long as such assessments remain unpaid, and if the default in payment continues for ten years, the lot reverts to the church. Power of alienation is limited by invalidating transfers unless recorded on the books of the treasurer. In view of these restrictions upon the ownership, which are incorporated in the document forming the foundation of the title of the lot owners, it is apparent that whatever the title may be technically called, a purchaser of a lot at private sale, or a vendee of the sheriff under a sale upon a municipal claim, will acquire property which will be in effect a right of sepulture. The act of 1869, was passed for the convenience and protection of the owners of lots against which liens are filed. Its provisions, however, cannot be successfully invoked where their application will result in manifest injustice to the lien claimant. He is entitled in this case to his lien upon every part of the whole lot. This is conceded by the making of this application to apportion. Here, if apportionment be granted, it is apparent that his rights will be invaded. As to part of his claim, he will, in effect, be relegated to a right of sepulture for security.

We are of opinion that this is not a case within the contemplation of the act of assembly.

The judgment is affirmed.