Avery v. Baker

• Decision Date: 01 October 1889
• Citation: 27 Neb. 388,43 N.W. 174
• Parties: AVERY ET AL. v. BAKER ET AL.
• Court: Nebraska Supreme Court

27 Neb. 388

43 N.W. 174

AVERY ET AL.

v.BAKER ET AL.

Supreme Court of Nebraska.

Oct. 1, 1889.

Syllabus by the Court.

1. Where a number of persons contribute to the erection of a church edifice upon the agreement that it is to be used by a certain religious society, and, when not in use by it, by other denominations, and for “lectures, concerts,” etc., held, that it was not necessary for all the persons contributing to the erection of the building to join in an action to restrain a sale and transfer of the property to be used for mercantile purposes.

2. Where a church edifice has been erected by voluntary contributions and upon the promise and agreement that the building is to be used for certain specified purposes, the contributors to the fund have a right to insist that the property be used for the purposes named, and may enjoin a sale of the building, where no adequate cause is shown, and the effect would be to divert the funds from the use intended, and apply them elsewhere.

Appeal from district court, Madison county; NORRIS, Judge.

Appeal from a judgment sustaining a demurrer to the plaintiff's petition. The petition is as follows:

“That on or about the ______ day of April, A. D. 1881, the above-named J. R. Morris, a regular authorized and licensed minister of the Baptist faith, together with the other plaintiffs above named, and numerous other parties, all residents of the village of Battle Creek, being desirous of having a place of religious worship erected in the village of Battle Creek, entered into an agreement whereby a church building was to be erected for the benefit of the residents of Battle Creek and vicinity; there being at that time no church building in which those of Protestant faith could worship. That, according to the terms of said agreement, said J. R. Morris was to receive subscriptions from the plaintiffs and other residents of said village of Battle Creek to purchase a lot, and proceed to and superintend the erection of a church building in the said village of Battle Creek; and it was further understood and agreed that said church building so to be erected was to be for the use and religious benefit of the residents of said village, and should always continue so to be used for church purposes; and it was further understood and agreed that those persons professing the Baptist faith should have the preference in the right to conduct religious services therein, but that members of any other Evangelical Protestant Church might have and exercise the privilege of holding religious services therein, providing that the same were held at such times as to cause no interference with the right of those professing the Baptist faith; and it was further understood that the residents of Battle Creek were to have the privilege of using said building for the purpose of having lectures and concerts of a religious nature held therein, providing, as aforesaid, that the same should not interfere with the stated times of holding the usual devotional services. That subsequent to the date last aforesaid, and after the plaintiff and many others of Battle Creek had subscribed towards the erection of the church building upon the conditions above named, the said plaintiff J. R. Morris procured a deed for lot eight, in block fifteen, in the original town of Battle Creek, from Blair and Kimball, which said lot was donated upon condition that the same should always be used for church purposes. That there was no object or purpose in having the legal title to said property taken in the name of the trustees of the Baptist Church of Battle Creek. That these plaintiffs, other than said Morris, at the time of the deeding of said lot, were not present, and, after being informed thereof, made no objection, but acquiesced in the action of the plaintiff Morris, on his suggestion that it would be a more convenient method to have the title of the property taken in the name of some religious society; and the preference in the right of worship was given those professing the Baptist faith out of deference to, and on account of the esteem and gratitude felt towards, the plaintiff J. R. Morris, a minister of the Baptist Church; but at no time did your petitioners entertain any thought, nor was it understood or agreed, that the ownership and right to said property was to vest in the Baptist Church of Battle Creek as a religious society. That on or about the 12th day of June, 1888, subsequent to the time subscriptions were solicited from the plaintiffs for the erection of said church building, a religious society called the ‘Baptist Church of Battle Creek’ was organized, at which meeting J. R. Morris, W. B. Jordan, and Charles Pratt were elected trustees.

That, soon after the subscriptions subscribed towards the building of said church by the plaintiffs were paid in, the plaintiff J. R. Morris caused to be erected a church building upon the lot aforesaid, at a cost of $522, of which amount the plaintiff J. R. Morris subscribed and paid $50; George S. Hurford subscribed and paid $32; R. H. Maxwell subscribed and paid $20; John D. Hoover subscribed and paid $20; R. P. Avery subscribed and paid $20; J. L. Avery subscribed and paid $5; J. T. Hale subscribed and paid $25; John D. Hoover, Sr., subscribed and paid $25; Thomas Ross subscribed and paid $20; D. M. Logan subscribed and paid $20; Jacob Cleveland subscribed and paid $20; William Pales subscribed and paid $5; F. J. Hale subscribed and paid $25; William Wigg subscribed and paid $5; Lida Wigg subscribed and paid $5; and afterwards, and when said church was dedicated, the plaintiff J. R. Morris advanced the further sum of $270 to help pay off the indebtedness of said church, and the other liabilities. Plaintiffs above named, and many others with like interests, contributed sums ranging from one dollar to twenty-five dollars for the same purpose. That said society of the Baptist Church of Battle Creek was an unincorporated body, with no power or authority to act as a religious corporation under the laws of the state of Nebraska, and all business of any kind or nature transacted by the said society was done through the said J. R....