Arnold v. Methodist Episcopal Church South of North Alabama Methodist Conference

• Decision Date: 24 August 1967
• Docket Number: 7 Div. 732
• Citation: 202 So.2d 83,281 Ala. 297
• Parties: Cynthia L. ARNOLD et al. v. METHODIST EPISCOPAL CHURCH SOUTH OF the NORTH ALABAMA METHODIST CONFERENCE.
• Court: Alabama Supreme Court

Page 83

202 So.2d 83

281 Ala. 297

Cynthia L. ARNOLD et al. v. METHODIST EPISCOPAL CHURCH SOUTH OF the NORTH ALABAMA METHODIST CONFERENCE.

7 Div. 732.

Supreme Court of Alabama.

Aug. 24, 1967.

Embry & Robinson, Pell City, and Jas. M. Fullan, Jr., Birmingham, for appellants.

Hawkins & Rhea, Gadsden, for appellee.

COLEMAN, Justice.

Complainants appeal from decree dismissing their bill of complaint after the court had sustained demurrer thereto.

Complainants aver that they are the heirs of J. S. Arnold, deceased, who had been at one time owner and in possession of a certain parcel of land; that by deed dated October 19, 1923, Arnold and his wife conveyed the land to the respondent church ¹; that respondent used the property for its church purposes for a short while, after which 'they abandoned' the property and ceased to use it for church purposes, and no church or religious services have been held in the building on said land within the last twelve years; and that the building has deteriorated and is unsafe for further public use. ²

Complainants pray that the court will cancel and set aside the deed, divest all right and title to the land out of respondent, and vest title thereto in complainants.

Respondent demurred on the grounds, among others:

'(1) Said bill of complaint does not contain equity.

'(23) For that no cause is shown or proper ground is presented for termination or setting aside of said deed.'

The error assigned is that the court erred in sustaining the demurrer. We will consider whether the court erred in sustaining grounds (1) and (23) of the demurrer.

Appellants argue that the bill does contain equity because the averments show that complainants do have a right to the relief sought on either of two theories, to wit:

1. The deed created a trust and the purpose of the trust has failed, and, therefore, the corpus of the trust reverts to the grantor or his heirs.

2. The provision contained in the deed constituted a condition subsequent which has been breached, and, therefore, there has been a divestiture of the estate granted, even though the deed contains no express provision for divestiture and re-entry.

At the outset, we notice that the grant is to 'said Methodist Episcopal Church South,' without reciting whether the grantee is incorporated or not. We find in the bill no express averment that the grantee is or is not incorporated, but in the prayer, by appositive expression, complainants refer to the grantee in the deed as 'an unincorporated religious society or church,' and we must assume that the grantee is unincorporated.

An unincorporated association is without capacity to acquire and hold legal title to real property. Street v. Pitts, 238 Ala. 531, 534, 192 So. 258; Vaughn v. Pansey Friendship Primitive Baptist Church, 252 Ala. 439, 441, 41 So.2d 403. We are not to be understood as intimating anything to the contrary in this opinion. This court has said that this disability alone would prevent the association from maintaining an action of ejectment. Vaughn case, supra, § 143, Title 7, provides: 'Actions or suits may be maintained against and in the name of any unincorporated organization or association for any cause of action for or upon which the plaintiff therein may maintain such an action against the members of such organization or association.' Vaughn case, supra; Hamner v. Carroll's Creek Baptist Church, 255 Ala. 277, 280, 51 So.2d 164. Neither party has raised the point that respondent lacks capacity to hold the legal title. If the object of a charitable donation can be ascertained, the want of a trustee will be supplied by appointment of a court of equity. Williams v. Pearson, 38 Ala. 299, 307. See Mastin v. First National Bank of Mobile, 278 Ala. 251, 260, 177 So.2d 808. In view of these premises and the fact that the point has not been raised by the parties, we proceed to decide this appeal without regard to an unincorporated association's lack of capacity to hold title to real property.

1.

Complainants' first theory presents the question whether the deed conveyed the land in trust or in fee simple. Since, however, we do not find determination of this question necessary for decision, we pretermit such determination which involves many intricate facets of the law of estates, deeds, and trusts. See Petty v. Boothe, 19 Ala. 633; Teal v. Pleasant Grove Local Union No. 204, etc., 200 Ala. 23, 25, 75 So. 335, 337; § 14, Title 47, Code 1940; Henry v. White, 257 Ala. 549, 60 So.2d 149; Green v. Jones, 257 Ala. 683, 60 So.2d 857; Hardee v. Hardee, 265 Ala. 669, 674, 93 So.2d 127; 18 C.J. 299, footnote 57, Deeds, § 278(1); 26 C.J.S. Deeds § 109a, p. 916, 28 Am.Jur.2d 91, footnote 1, Estates, § 15.

We will assume that the deed creates a charitable trust subject to the rules which govern such estates. See Darby v. Jones, 249 Ala. 104, 29 So.2d 879.

We have not found in the bill any averment relating to a sale of the land here involved nor any averment from which it may reasonably be inferred that such a sale is contemplated, and, therefore, we pretermit also determination whether the deed conveys 'lands to be actually used for the charity itself,' or lands 'which are set apart to provide a fund for such use.' Heustess v. Huntingdon College, 242 Ala. 272, 273, 5 So.2d 777; Lovelace v. Marion Institute, 215 Ala. 271, 110 So. 381.

What we do decide is whether the averments of the bill show that the trust, which we have assumed arguendo that the deed created, has failed so that the trust property reverts to the settlor, or his heirs, by forfeiture, reverter, or resulting trust. There is in the deed no express provision for reverter.

In 38 A.L.R. at page 44, appears an annotation on the question for decision. The annotator summarizes the general rule as follows:

'As a general proposition it may be stated that where a person creates a trust fund for the benefit of a particular charity or organization, and it is impossible to distinguish any general charitable intent, the fund or property will revert to the donor where it becomes impossible to carry out the purpose of the trust, even in the absence of an express provision for reverter.'

Three cases indicate that this court has approved that rule. In Trustees of Cumberland University v. Caldwell, 203 Ala. 590, 84 So. 846, the question which divided the court was at what point was the failure vel non of the beneficiary of the trust to be finally determined. Both the majority and dissenting opinions indicate agreement that the trust had lapsed and that the trust property had reverted to the heirs of the donor. The majority, on rehearing, said:

'* * * The theological department of the Cumberland University, to which the estate in remainder was devised, was as dead as Milton College, and with no better chances of resurrection. * * * After that resolution (of the trustees declaring that overthrow of the theological school had been accomplished) * * * there was, not a mere possibility of reverter, but a reversion actually accomplished. * * *

'On that theory of the case, the legal title conferred upon the executor as trustee failed when the devise to Cumberland University lapsed, and thereupon vested in the heirs, or, in any event as to that, was thereafter held by the executor in trust for the heirs of the testator. * * *' (Par. Added) (203 Ala. at page 595, 84 So. at page 851)

In King v. Banks, 220 Ala. 274, 124 So. 871, decided in 1929, a lot of land had been conveyed in 1883 to named "Trustees of the Midway and James Institute * * * to be used for school purposes only." This court, on considering affidavits on motion to dissolve an injunction sought by trustees of a public school district created by the legislature, concluded that the deed to the trustees of the institute, a denominational Methodist school for children, 'and their successors in office forever,' must be construed as creating a trust for the education of children who might attend the institute, not a trust for the benefit of public schools generally, and that upon establishment of the public schools, the Methodist Institute was abandoned. This court said that the trust had lapsed and further:

'It will not be denied that, 'if a trust for a particular purpose fail, by the dissolution of a corporation, or other organized body, a trust created for their particular benefit will result to the donor's heirs.' 1 Perry on Trust (7th Ed.) § 160. In 1899 the trust created by the deed of 1883 was allowed to lapse, as we have in substance already stated, and in 1906 the then sole surviving trustee of those named in the deed of 1883 executed a deed of conveyance to the heirs of the original grantors, under whom the defendants in the present suit claim title by deed, reciting the facts, to wit, that the institute no longer existed and that he (the grantor) was the sole surviving trustee of those named in the deed of 1883. This conveyance by the surviving trustee vested the full title to the property in his grantee, if the trust was then or is now lapsed, and as to that hypothesis we have stated our opinion. Parsons v. Boyd, 20 Ala. 112, 118; 1 Perry, § 414; Code, § 10435.' (220 Ala. at page 276, 124 So. at page 873.)

In General Assembly, etc. v. Patterson, 256 Ala. 50, 53 So.2d 621, this court, in 1951, construed a deed executed in 1899, conveying a lot to certain named trustees of a school at Huntsville. The habendum was to the trustees 'and their successors as such Trustees and Assigns forever.' In 1943, the respondent received a deed from successor trustees appointed by the Alabama Synod of the Cumberland Presbyterian Church, Colored. This court, without being concerned with the character of respondent's title, upheld it against the claim of the church because the church took no title by the deed, although the church was designated in the deed to appoint trustees. This court said:

'No case is presented for application of the doctrine of equitable approximation, since...