Church v. First Lutheran Church of Pontlac

• Decision Date: 05 December 1919
• Docket Number: No. 12824.,12824.
• Citation: 124 N.E. 793,290 Ill. 133
• Parties: ROOKS CREEK EVANGELICAL LUTHERAN CHURCH v. FIRST LUTHERAN CHURCH OF PONTLAC.
• Court: Illinois Supreme Court

290 Ill. 133

124 N.E. 793

ROOKS CREEK EVANGELICAL LUTHERAN CHURCH

v.FIRST LUTHERAN CHURCH OF PONTLAC.

No. 12824.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 5, 1919.

Appeal from Circuit Court, Livingston County; G. W. Patton, Judge.

Action by the Rooks Creek Evangelical Lutheran Church against the First Lutheran Church of Pontiac. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Tuesburg, Wilson & Armstrong, of Pontiac, for appellant.

Adsit & Thompson, of Pontiac, for appellee.

CARTER, J.

This was an action in ejectment brought in the circuit court of Livingston county by appellant against appellee to recover certain real estate in Pontiac. After a hearing before the court and jury the court instructed the jury to find for appellee and the verdict was so returned. The cause was then appealed to this court.

On March 6, 1907, appellant conveyed by warranty deed to appellee, both being religious corporations duly organized under the laws of this state, lot 5 in block 61 in the original town of Pontiac. That deed reads as follows:

‘This indenture witnesseth, that the grantor, the Rooks Creek Evangelical Lutheran Church of Rooks Creek township, Livingston county, Illinois, by Lewis B. Shay, Andrew F. Johnson, and John Carlson, its trustees, of the county of Livingston and state of Illinois, for and in consideration of the sum of one dollar, and in order to carry into effect a resolution adopted by the members of said church at a meeting held as hereinafter set forth, convey and warrant to the First Lutheran Church of Pontiac, whose trustees are James M. Mitchell, Julius Johnson, Peter Peterson, P. J. Sjoborg, and Ole Erickson, to them and their successors in office, county of Livingston and state of Illinois, the following described real estate, to wit: Lot five (5) in block sixth-one (61) in the original town (now city) of Pontiac, in Livingston county, Illinois.

‘Resolution hereinabove referred to:

“Whereas Rooks Creek Evangelical Lutheran Church at Rooks Creek township, Livingston county, Illinois, did in the year 1894-1895 purchase a church building and lot for the purpose of establishing a station for worship in the city of Pontiac for members of said congregation and others; and whereas, said church building was duly dedicated for worship by the officials of the Hauges Lutheran Synod (of which said Rooks Creek Church was and still is a member) according to the teachings and rules of said synod, and said worship and other mission work has been continually kept up by the members of said church; and whereas, the paster, O. O. Riswold,now in the service of said church, has solicited subscriptions for the organization of an independent church in the city of Pontiac, consisting of the original members of said Rooks Creek Evangelical Lutheran Church and others now living in and near the city of Pontiac, and said members desire to maintain their connection with said synod; and whereas, it appears proper for the permanent establishment of said independent church to connect with some Lutheran synod, and for the purpose of avoiding strife and contention in the said city of Pontiac, where there apparently is no room for more than one Lutheran church to succeed, it seems to us reasonable and proper, and in accordance with the christian practices, where peace is predominating and local success desired, that the new church, composed as above set forth, should unite with the synod already established in said city, and, if possible, to divide pastoral service with said Rooks Creek Church:

“Therefore be it resolved, the board of trustees for Rooks Creek Evangelical Lutheran Church be and are hereby authorized to convey and transfer to the said church in Pontiac lot 5, block 61, in the original town (now city) of Pontiac, together with the church building thereon, subject to the indebtedness thereon due to A. Erickson, Th. Ryerson, and R. Aarvig, on condition that said church be and remain connected with the Hauges Lutheran Synod.

“Adopted by the Rooks Creek Evangelical Lutheran congregation at their regularly appointed annual meeting, held at the First Lutheran Church of Pontiac, Ill., Feb. 7, 1907.

“O. O. Riswold, Chairman; O. S. Ryerson, Temporary Secretary.'

‘Dated this sixth (6) day of March, A. D. 1907.

Lewis B. Shay, [Seal.]

‘Andrew F. Johnson, [Seal.]

‘John Carlson. [Seal.]

‘Trustees of the Rooks Creek Evangelical Lutheran Church.’

The deed was delivered to appellee March 8, 1907, and duly recorded on June 17, 1907. The appellee corporation, after the delivery of the deed, entered into the possession of said lands and premises and still remains in possession. It was not then, and never has since become, connected with the Hauges Lutheran Synod. In May, 1911, the appellee corporation regularly adopted, at a regular session of the corporation, a revised constitution, which provided, among other things, that they recognized the necessity of maintaining some connection with a Lutheran body in order to securethe services of regularly trained and ordained pastors in good standing, but that, as the membership of the church was then made up of various nationalities and people coming from different Lutheran synods, it was deemed expedient for the present until action shall have been taken as hereinafter provided, to remain as an independent organization synodically, ‘provided, however, that this section shall not be construed as a repudiation of one certain clause set forth in a deed conveying the church property on the corner of Oak and Water streets to the First Lutheran Church of Pontiac, namely, that the church ‘be and remain connected with the Hauges Lutheran Synod.’' It appears from the record that the appellee church never joined the Hauges Synod, but that in January, 1918, it joined the Evangelical Lutheran Synod of Northern Illinois. We do not deem that the transactions since the execution of this deed are necessarily controlling, but have stated them, so that all the circumstances in connection with the transaction may be in mind in construing this deed.

It is contended by counsel for appellant that the deed conveyed the land first upon a condition precedent that the appellee church should become connected with the Hauges Synod; and, second, on a condition subsequent that it should remain connected with said synod. Counsel for the appellee argue that the language of the deed, if construed as a condition, must be construed as a single condition, and that is, that the grantee church should have a continuing connection with said Hauges Synod; that, as these two provisions or conditions in the deed are connected by the conjunction ‘and,’ both clauses must be construed together as one condition (6 Am. & Eng. Ency. of Law [2d Ed.] 505), and that by this same authority, if the language does create a double condition, neither condition is required to be performed before the vesting of the title.

We do not think the clause in the deed should be construed as a condition precedent. It is disclosed by the wording of the deed that at the time it was executed the Rooks Creek congregation was aware that its pastor was organizing an independent Lutheran Church in Pontiac; that it was not the intention of the Pontiac church to then be connected with the Hauges Synod or any other synod; that it was evidently the desire of the Rooks Creek congregation to transfer its property at once to the new congregation in order that there would not be two Lutheran churches in said city. The resolution on which the deed was executed provided for immediate conveyance, and the deed was duly executed shortly after the passage of the resolution. We do not think it can be fairly argued that the deed either expressly or impliedly provided that the grantee church should first join said synod before the title passed. The grantee church was placed in...