Avery v. Baker

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

43 N.W. 174

27 Neb. 388

JOHN L. AVERY ET AL., APPELLANTS., v. L. B. BAKER ET AL., APPELLEES

Supreme Court of Nebraska

October 1, 1889

APPEAL from the district court for Madison county from a judgment sustaining a demurrer to the plaintiff's petition. Heard below before NORRIS, J.

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 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 & Kimball which said lot was donated upon the conditions 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 right of worship was given those professing the Baptist faith out of deference to and on account of the esteem and gratitude felt toward 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 rest 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 toward 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 00

George S. Hurford

"

"

32 00

R. H. Maxwell

"

"

20 00

John D. Hoover subscribed and paid

$ 20 00

R. P. Avery

"

"

20 00

J. L. Avery

"

"

5 00

J. T. Hale

"

"

25 00

John D. Hoover, Sr.

"

"

25 00

Thomas Ross

"

"

20 00

D. M. Logan

"

"

20 00

Jacob Cleveland

"

"

20 00

William Pales

"

"

5 00

F. J. Hale

"

"

25 00

William Wigg

"

"

5 00

Lida Wigg

"

"

5 00

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. Morris and his son-in-law, one W. B. Jordan; that of the amount paid toward the erection of the said church building, aside from the amount contributed by J. R. Morris, there was not over forty dollars by those professing the Baptist faith, but all of said amount was paid in by these plaintiffs and other residents of the village of Battle Creek, who were not members of said Baptist church, and many who were not members of said Baptist church, and many who were in no wise connected with any orthodox protestant church.

"That after the erection of said church building the plaintiffs furnished and advanced money at different times and divers times for the purpose of furnishing said building and rendering the same suitable for the purpose of holding services therein, and have advanced money for repairs and to pay the necessary current expenses of maintaining said services, and from and after the time of building said church religious services were had therein for the benefit of the residents of the said village of Battle Creek under the direction of the plaintiff J. R. Morris, the pastor in charge, in conformity with the doctrine, faith, and tenets of the Baptist sect, for the period of about two years, and during said time religious services were held therein every Sunday, and on various occasions when said church was not in use by said plaintiff J. R. Morris for the benefit of those professing the Baptist faith, preaching of the gospel was had therein under the auspices of orthodox ministers of different protestant denominations, and said building has at all times been opened and used for the purpose of giving public concerts and lectures of a religious nature for the entertainment of the residents of the said village of Battle Creek; that about two years after the said building was erected the said plaintiff Morris moved from said village and since his removal has resided elsewhere; but before leaving, the key to said building was left by said Morris with one Warner Hale, a resident of said village, but not a member of any orthodox society, with instructions to allow any protestant clergyman in good standing, without reference to denominational affiliations, to hold services therein for the benefit of the residents of said village, and thereafter, up to the day of March, 1888, religious services were held in said church for the benefit of the people of said village whenever the services of an authorized minister, without reference to denomination or religious creed, could be obtained, and at various times lectures and concerts of a religious nature have been held therein.

"That the plaintiffs and many other residents of the said village, on whose behalf this action is brought, would never have subscribed and paid the amounts so contributed by them toward the erection of the said church, nor would they have contributed or assisted in maintaining the same as a place of worship upon any other condition than those embodied in the agreement and understanding hereinbefore set forth.

"That afterwards, and on or about the day of July, 1887, the said Blair & Kimball made and executed a quit-claim deed for the premises hereinbefore described to the trustees of the Baptist church of Battle Creek, Nebraska, and at the solicitation of W. W. Wigg, George Pratt, and J. D. Hoover, Sr., who pretended to be the duly elected and qualified trustees of the Baptist church of Battle Creek, said deed was delivered to them, they pretending to be the proper custodians of the muniments of title to said church property.

"That on or about the 14th day of September, 1887, the said W. W Wigg, George Pratt, and J. D. Hoover, Sr., made, executed, and delivered to the defendant L. B. Baker a deed to the said church property without the consent of these plaintiffs, claiming to act in and about the making of said deed as trustees of the said Baptist church society; but your petitioners allege that after the departure of said Morris from the said village of Battle Creek the Baptist church society of Battle Creek has never been an organization such as is recognized by the laws of this state, or by the rules and regulations governing religious societies of the Baptist church, and the said Wigg, Pratt, and Hoover were never chosen trustees of the society in any manner provided by law or by the usages, rules, and customs of the Baptist church, nor were they authorized to make a conveyance of said church property, nor were said parties or said Baptist church of Battle Creek authorized by the district court of Madison county to make a...