69 N.W. 957 (Neb. 1897), 7038, Henry Moseman Trustees v. Heitshusen

• Docket Nº: 7038
• Citation: 69 N.W. 957, 50 Neb. 420
• Opinion Judge: RYAN, C. J.
• Party Name: HENRY MOSEMAN ET AL. TRUSTEES, APPELLEES, v. JOHN HEITSHUSEN ET AL. APPELLANTS
• Attorney: Ira Thomas, for appellants. H. H. Bowes, contra.
• Case Date: January 19, 1897
• Court: Supreme Court of Nebraska

Page 957

69 N.W. 957 (Neb. 1897)

50 Neb. 420

HENRY MOSEMAN ET AL. TRUSTEES, APPELLEES,

v.

JOHN HEITSHUSEN ET AL. APPELLANTS

No. 7038

Supreme Court of Nebraska

January 19, 1897

APPEAL from the district court of Burt county. Heard, below before FERGUSON, J. Reversed.

REVERSED.

Ira Thomas, for appellants.

H. H. Bowes, contra.

OPINION

RYAN, C. J.

By their petition filed in the office of the clerk of the district court of Burt county, the appellees, as plaintiffs, alleged that in 1873 Simon and Mary Kerl, for church purposes, deeded to certain named persons, as trustees of the Lutheran Church of Burt and Dodge counties, a certain described forty-acre tract of land situated in Burt county, and that it was provided in said deed that "if said Lutheran Church shall be dissolved, or if some other religious society shall occupy said church and property," then thirty of the said forty acres should revert to the grantors. A considerable portion of the argument found in the briefs of the respective litigants is devoted to the discussion of the effect of certain acts of certain church factions as working a forfeiture under the terms of the aforesaid deed, but as the grantors in said deed are not parties to this action this discussion is entirely irrelevant. When the parties in interest seek a forfeiture it [50 Neb. 421] will be time to consider this question and not till then. It is alleged in the petition that the members of the society to which said deed had been made on April 4, 1893, adopted the following preamble and resolution: "Whereas it appears that there is no record of the adoption of the constitution of this religious association or the change of name from the Lutheran church of Burt and Dodge counties to the St. Paul German Lutheran Church: Therefore, be it resolved, that we proceed to adopt a constitution to govern the association or church as provided in the deed from Simon Kerl." It was averred in the petition that the defendants voted against the adoption of the above preamble and resolution, and immediately following this averment were allegations in this language: "That after the adoption of said constitution the said members signed the same, except defendants herein, and adopted the following resolution by a unanimous vote; that the members of plaintiffs' faction are as follows: Henry Von Essen, T. D. Claussen, J. H. Kuhlman, H...