Community of Priests of St. Basil v. Byrne

• Decision Date: 21 November 1921
• Docket Number: (No. 336.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 236 S.W. 1016
• Parties: COMMUNITY OF PRIESTS OF ST. BASIL v. BYRNE et al.
• Court: Texas Court of Appeals

Page 1016

236 S.W. 1016

COMMUNITY OF PRIESTS OF ST. BASIL v. BYRNE et al.

(No. 336.)^*

Court of Civil Appeals of Texas. Austin.

November 21, 1921.

Rehearing Denied February 1, 1922.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Action by Christopher Byrne, Bishop of Galveston, and others against the Community of Priests of St. Basil. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Sleeper, Boynton & Kendall, of Waco, for appellant.

J. D. Williamson and Allan V. McDonnell, both of Waco, for appellees.

BRADY, J.

The Catholic parish of Waco, Tex., in December, 1898, purchased a lot in that city, for the purpose of establishing and maintaining a school for boys. The deed to this property, pursuant to the custom of the Catholic Church, was taken in the name of Rt. Rev. N. A. Gallagher, Bishop of Galveston, his successors and assigns, but it is undisputed that the title was so taken in trust for the Catholic parish of Waco.

On or about June 14, 1899, after certain preliminary negotiations, a contract in writing was entered into, whereby the Community of Priests of St. Basil agreed to open and maintain a Catholic school for boys in such city. The contract contained the following provisions:

"1. That the property secured for school purposes by the Catholic Church in Waco shall be transferred to the said Community, subject to no other incumbrance than the debt of $3,600.00, bearing eight per cent. interest per annum.

"2. That if at any time the said Community find that it cannot open and maintain the said school, the said Community shall surrender and retransfer the said property to the Catholic Church in Waco, in the person of Rt. Rev. N. A. Gallagher, Bishop of Galveston, or his successor as Bishop of Galveston; provided that the Catholic Church of Waco, in the person of the Bishop of Galveston shall at the same time refund to the Community of the Priests of St. Basil, or its representatives, such portion of the original debt of $3,600.00, bearing interest at eight per cent. per annum, as the said Community shall have paid."

This contract, as pleaded and proved by the defendant, appellant here, was signed by the provincial of the Community and by Bishop Gallagher. Pursuant to the contract, and at the direction of the Provincial, the property was conveyed to the Community in the person of Fr. Hayes and V. Marijon, provincial. The school was opened and maintained by the Community, but was closed at that location some time in 1902; and it appears that the property was thereafter rented. In May, 1906, the Community, through the persons named in the deed, sold and conveyed the property to one Isaac Simmons, with the consent of Bishop Gallagher, and the purchase price of $7,250 was paid to the Community. The school was continued on other property purchased by the Community until June 1, 1915, when it was closed, without the consent of the plaintiffs, who are appellees here.

It was claimed by the plaintiffs that the Community had used the proceeds from the sale of the property in question in paying the purchase price, or making improvements on property owned by the Community in University Heights addition to the city of Waco, and that plaintiffs thereby acquired a resulting trust lien on such property to the full amount and extent of the investment of proceeds therein.

The suit was for specific performance of the contract, asking a reconveyance to plaintiffs of the property at Eighth and Clay streets, or, in the alternative, for judgment for damages, with the fixing of an equitable lien on other property.

The answer of the defendant presented several defenses, which will be sufficiently indicated in the discussion of the questions considered here.

The cause was submitted to a jury on special issues, and the findings are to the following effect:

"(1) Defendant is not a voluntary association of persons organized for profit.

"(2) The contract set out in paragraph 4 of plaintiffs' second amended petition was not the contract agreed on by the parties.

"(3) The contract set out in Exhibit A of defendant's third amended answer was the contract agreed upon by the parties.

"(4) The school referred to in the contract between the parties was not opened and maintained by defendants within the meaning of the contract.

"(5) Defendant ceased to maintain the Catholic school for boys in Waco, within the meaning of the contract, in June, 1915.

"(6) When the property at Eighth and Clay streets was sold and the school at that place closed, Bishop N. A. Gallagher at that time understood and agreed upon the sale of the property at Eighth and Clay streets and the closing of the school at that place."

"(7) The Catholic Church at Waco through its pastor and trustees did not give its consent to the closing of the Catholic school at Waco by defendant.

"(8) Prior to the time when the property at Eighth and Clay streets was sold to Isaac Simmons, the Catholic Church through its pastor and trustees at Waco gave its consent to such sale.

"(9) The pastor and board of trustees of the Catholic Church at Waco were not authorized by the church to agree to the closing of the Catholic school for boys at Waco by defendant.

"(10) The pastor and board of trustees of the Catholic Church at Waco were authorized by the church to agree to a sale of the property at Eighth and Clay streets by defendant."

Upon this verdict the court rendered judgment for the plaintiffs against defendants, the Community of Priests of St. Basil, a voluntary association of persons, for the sum of $4,457.42, with interest at 6 per cent. per annum, and costs of suit. The court further adjudged a lien in favor of the plaintiffs on the lots of land in University Heights addition to the city of Waco, described in the petition. Pending the suit, the alleged lien was released by the plaintiff, who was then Bishop Gallagher, in order that the land might be sold free of the lien claimed, and a surety bond was executed to the bishop to protect any judgment recovered in this suit.

The first question to be discussed is the claim that the trial court should have sustained exceptions to the petition presenting the defenses that this suit was originally filed by Bishop Gallagher, for the use and benefit of the Catholic Church at Waco, and that neither his successor in office, Rt. Rev. Christopher Byrne, Bishop of Galveston, nor the plaintiffs Kelly and Kirwin, executors of the will of Bishop Gallagher, are the proper parties to revive the suit, but that the Catholic Church at Waco should through proper parties prosecute the action.

The two statutory provisions relevant to the consideration of this question seem to be articles 1886 and 1894, Revised Statutes. The first of these articles provides, in substance, that where a plaintiff shall have died before a verdict, if the cause of action is one that survives, the suit shall not abate, but the executor or administrator may be made a party plaintiff. Article 1894 is to the effect that where a plaintiff brings suit for the use of another, the suit shall not abate upon the death of the plaintiff, but may be prosecuted by the person for whose use the suit was brought.

It appears from the averments of the petition that Bishop Byrne was the successor in office to Bishop Gallagher, as Bishop of Galveston, and that the plaintiffs Father Kirwin and Father Kelly were the executors of the will of Bishop Gallagher. The contract was made in the name of Bishop Gallagher, and the contract provided that the Community should retransfer the property to Bishop Gallagher, or his successor in office, upon the happening of the contingency named in the contract. We are inclined to the view that, under article 1886, the executors were proper parties. The original deed having been made to the Catholic Church at Waco, in the person of Bishop Gallagher and his successors in office, and the contract for surrender and retransfer of the property conveyed to the Community being also in his name as Bishop of Galveston, and to his successor in office, it would appear that such successor would be a proper plaintiff, and also that the executors might properly proceed to prosecute the action. At all events, we think their presence in the suit as plaintiffs is not objectionable, especially as no complaint is made by the Catholic Church at Waco, which is the real beneficiary. They seem to have been made plaintiffs in an effort to comply with the provisions of article 1886, which, however, is a permissive statute.

We are also of the view that article 1894 is not mandatory, and that it was enacted to prevent an action instituted for beneficiaries from failing because of the death of the original plaintiff, and such statute merely permits the beneficiaries to intervene and prosecute the suit. The beneficiaries here are not complaining. We cannot see where any substantial right of plaintiffs was violated in permitting the suit to be prosecuted in the manner and by the parties plaintiff, named in the amended pleadings. The parties themselves have contracted with reference to the subject, and we do not think the latter article has the effect contended for by appellant. Therefore the assignment presenting this point is overruled.

While we have concluded that the case must be reversed for error in rendering judgment fixing an equitable lien in this cause, a question which will be hereafter considered, we think it proper to discuss other questions presented in the briefs, especially for the guidance of the trial court.

In several forms it is contended by appellant that the clause in the contract requiring a surrender and retransfer of the property, upon the contingency named, is illegal and void, because a perpetuity is created within the meaning of section 26, article 1, of the Constitution and laws of this state. It is especially claimed that the contract is a mere option to purchase, and since it provides for the...