Community of Priests v. Byrne

• Decision Date: 15 November 1923
• Docket Number: (No. 404-3751.)
• Citation: 255 S.W. 601
• Parties: COMMUNITY OF PRIESTS OF ST. BASIL v. BYRNE et al.
• Court: Texas Supreme Court

255 S.W. 601

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

(No. 404-3751.)

Commission of Appeals of Texas, Section A.

November 15, 1923.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by N. A. Gallagher, bishop of Galveston, for whom Christopher Byrne, bishop of Galveston, and the executors of N. A. Gallagher were substituted, against the Community of Priests of St. Basil. Judgment for plaintiffs was reversed, and the cause was remanded by the Court of Civil Appeals (236 S. W. 1016), and defendant brings error. Judgment of both courts reversed, and judgment rendered for defendants.

Sleeper, Boynton & Kendall, of Waco, for plaintiff in error.

J. D. Williamson and Allan V. McDonnell, both of Waco, for defendants in error.

GERMAN, J.

In December, 1898, the Catholic parish of Waco, Tex., acquired a certain lot of land in the city of Waco, the deed thereto being taken in the name of N. A. Gallagher, bishop of Galveston. It is undisputed that the title was so taken in trust for the Catholic parish at Waco. The Catholics of Waco, being desirous of opening a school for boys in that city, with the consent of Bishop Gallagher, opened negotiations with the Community of Priests of St. Basil, Toronto, Canada, a voluntary association of priests who devote themselves to the building and maintaining of educational institutions. It was finally agreed that the Community of Priests would open and maintain the school for boys in Waco, upon the condition that the property in Waco would be conveyed to them free of all incumbrances except the sum of $3,600 due as purchase money. The contract agreement which is the basis of this action contained the following provisions:

"First. 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 a debt of thirty-six hundred dollars bearing eight per cent. interest per annum.

"Second. 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 Priests of St. Basil, or its representatives, such portion of the original debt of thirty-six hundred dollars, bearing interest at eight per cent. per annum as the said community shall have paid."

Pursuant to the agreement a deed was executed to the Community of Priests of St. Basil in the person of two of their representatives. This deed is in regular form, with general warrant of title, and retains a vendor's lien to secure the payment of four notes representing the $3,600 unpaid purchase money. No reference is made in the deed to the prior agreement between the parties.

In 1899 the Community of Priests opened a school for boys on the property conveyed to them, and maintained the same until some time in 1902. They then acquired property in University Heights addition to the city of Waco, where they opened St. Basil's College, a school and college for boys, and maintained the same until the year 1915. In order to build this college the Community of Priests borrowed certain moneys, executing a mortgage on St. Michael's College in Toronto, and about $30,000 was expended in constructing the college at Waco. The lot first acquired by the Community of Priests at Eighth and Clay, after the school was closed, was rented for some years, and in May, 1906, with the consent of Bishop Gallagher and also with the consent of the Catholic parish at Waco, this property was sold to Isaac Simmons. After deducting certain amounts for taxes, etc., about $7,000 was sent to the provincial treasurer at Toronto, and presumably applied in part payment of the debt incurred in building St. Basil's College.

This suit was instituted by N. A. Gallagher, bishop of Galveston, in his own behalf and for his successors in office, against the Community of Priests of St. Basil, a voluntary association, its members being residents of Toronto, Canada. The purpose of the suit was to recover damages for failure to reconvey the property at Eighth and Clay, as provided in the contract of June 14, 1899, and to fix and foreclose a lien upon the property in University Heights Addition, on the theory that the money obtained from the sale of the property at Eighth and Clay had been invested in the property and improvements at University Heights. Before trial of the case Bishop Gallagher died, and Bishop Christopher Byrne, his successor, as well as his executors, became parties plaintiff in the suit.

It is undisputed that the Community of Priests of St. Basil is a voluntary association of persons for religious and charitable purposes, and not for profit, and defendants in error admit that, unless they have shown that they are entitled in equity to subject the general property, or some particular property, of the association to their claim, by virtue of an equitable lien or trust, then, under the authority of M. E. Church South v. Clifton, 34 Tex. Civ. App. 248, 78 S. W. 732, and other cases following the rule there announced, they cannot maintain this suit.

The trial court awarded plaintiffs judgment for $4,457.42 principal and interest, decreeing that a lien existed on the property in University Heights. A bond having been executed by defendants in order to obtain release of that property from any lien, judgment was allowed on the bond for the above-named amount. The Court of Civil Appeals for the Third District, in a very carefully prepared and able opinion by Judge Brady, reversed and remanded the case, holding that the evidence was not sufficient to show an equitable lien on the property. 236 S. W. 1016. We will designate the parties as in the trial court.

Counsel have presented and learnedly argued various interesting questions, but under the view we have taken of the case it is only necessary to discuss one proposition.

While the contract referred to was made prior to the execution of the deed to the Community of Priests, and the deed contains no reference to it, yet, as between the parties, we will consider the contract as though its covenants were written into the deed. That the transaction, as between the parties, was a pure gift for charitable purposes we think is beyond doubt. The Community of...