Bray v. Moses

• Decision Date: 30 May 1947
• Citation: 202 S.W.2d 749,305 Ky. 24
• Parties: BRAY et al. v. MOSES et al.
• Court: Kentucky Court of Appeals

202 S.W.2d 749

305 Ky. 24

BRAY et al. v. MOSES et al.

Court of Appeals of Kentucky

May 30, 1947

Appeal from Circuit Court, Harlan County; James S. Forester, Judge.

Suit by Joe Moses and others, trustees, etc., against Ed Bray and others, trustees, etc., involving right to the use and control of property of the Church of God at Cawood, Harlan County. From an adverse judgment, the defendants appeal.

Reversed.

Geo. R. Pope and J. B. Carter, both of Harlan, for appellants.

E. L Morgan, of Harlan, for appellees.

STANLEY Commissioner.

The controversy is over the right to the use and control of the property of the Church of God at Cawood, Harlan County. The division in the congregation does not arise from any difference in doctrine so that the courts are not called upon to protect a minority from diversion of the property to that of another faith, or from a majority deviating from the doctrine or a characteristic practice of the original organization, as in Parker v. Harper, 295 Ky. 686 175 S.W.2d 361.

One of the questions presented is whether the church is to be classified as connectional or presbyterial in form so that a parent or superior authority has control, as in Clay v Crawford, 298 Ky. 654, 183 S.W.2d 797, or as congregational so that the will of the majority must be enforced or regarded, as in Thomas v. Lewis, 224 Ky. 307, 6 S.W.2d 255.

The deed dated September 17, 1943, conveyed the property to three named persons as 'trustees of the Church of God of the Mountain Assembly, Cawood, Kentucky,' and their successors. In Ennix v. Owens, 209 Ky. 19, 271 S.W. 1091, 1092, 'from the proof in the case' we held this same Mountain Assembly, which has its headquarters at Jellico, Tenn., to be a voluntary association of independent churches from which the congregation at Harlen had a right to withdraw by a vote of the majority; that 'under the evidence, the words 'of the Mountain Assembly' following the word 'trustees' in the deed must be read as matter of description and not words of limitation.' The controversy now before us is much like the one in that case. It is claimed by the plaintiffs that a majority of the Cawood congregation had voted to follow their pastor, Rev. Joe Moses, out of the Mountain Assembly into another such organization, that the Assembly had unlawfully undertaken to put the trustees out of office and that it and a minority of the members had excluded them from the church, and undertaken to elect other trustees, who locked the building against the members of the flock adhering to and following their pastor. All this is put in issue, the defendants claiming to represent the majority and justifying their action.

The evidence in this case tends to establish a stronger tie and an acceptance of the authority of the Assembly as superior and paternal than did the record in the Ennix case. It had existed as an unincorporated body, probably since 1907. It was clartered in 1917 under the laws of Tennessee as the 'Church of God,' the phrase 'Mountain Assembly' not appearing in the charter, although it had been so called from the beginning. On October 20, 1943 (within a month after this deed was made), the name was changed to 'The Mountain Assembly of the Churches of God,' but in December, 1944, the amendment was revoked 'leaving the original charter in force as the Church of God.' The minutes of several annual meetings of the Assembly are filed. They contain the doctrines, covenants and rules of the Church of God and a number of 'Standard Resolutions,' which vary from year to year in some particulars. At the time the deed to the Cawood property was made as above described, the local church had been a member of the Assembly for several years, so that it could be logically said that the congregation had accepted and are bound by all the terms of the Assembly organization, coupled with the corporate power to acquire property to be 'held, managed, applied and administered by it for the use and benefit of the Church of God under and according to the rules, regulations, faith and doctrine of said Church of God.' But it is not necessary to decide whether the Assembly had the legal power which it assumed to exercise in taking control of the property of the Cawood church, recognizing the defendants in this action (who are now the appellants) as the representatives of the faction rightfully entitled to it, and excommunicating the pastor and others for being 'out of order' and as secessionists. We find it unnecessary because it is certain that the plaintiffs, led by Moses, voluntarily withdrew from the Assembly. They not only withdrew, but set up and incorporated a separate body to which they gave the name 'Churches of God, Original Mountain Assembly.' Under this theory the Moses faction could not take the church property with them into the new organization or establish it as an independent congregational body. Clay v. Crawford, 298 Ky. 654, 183 S.W.2d 797.

We consider the question of the rights of the appellants under their theory of a congregational form of government. Under this classification the voice of a majority is supreme so long as there is no departure from the doctrines of the church. Thomas v. Lewis, 224 Ky. 307, 6 S.W.2d 255; Parker v. Harper, 295 Ky. 686, 175 S.W.2d 361. This congregation had been organized perhaps as early as 1907. Under the...