Congregation B'Nai Abraham v. Arky
Decision Date | 13 September 1929 |
Docket Number | No. 27107.,27107. |
Citation | 20 S.W.2d 899 |
Parties | CONGREGATION B'NAI ABRAHAM v. SAMUEL ARKY ET AL., Appellants. |
Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.
REVERSED AND REMANDED.
Brackman, Hausner & Versen for appellants.
(1) The plaintiff was organized as a religious corporation and therefore was incorporated in violation of the Constitution of Missouri. Sec. 8, Art. II, Constitution; Wyatt v. Stillman Institute, 260 S.W. 76; Procter v. Board of Trustees, 225 Mo. 51; In re St. Louis Institute of Christian Science, 27 Mo. App. 633. (2) Plaintiff, being organized as a religious corporation in violation of the Constitution, has no legal existence and therefore could not legally maintain the suit as such a corporation. The decree incorporating it was void. Society of Helpers of Holy Souls v. Law, 186 S.W. 725; Hinkle v. Lovelace, 204 Mo. 208; Kunzi v. Hickman, 243 Mo. 103. (3) The suit was an action at law to quiet title, and does not support the decree, which is a decree in equity requiring specific performance of an alleged contract. Koehler v. Rowland, 275 Mo. 573; Minor v. Burton, 228 Mo. 558; Lee v. Conran, 213 Mo. 404; Russ v. Hope, 265 Mo. 637. (4) Sec. 1970, R.S. 1919, under which this suit was brought, authorizes an action at law, or in equity. The character of the action is determined by the pleadings. Under the pleadings the suit was purely one at law to determine title. No equities whatever were pleaded, nor was any equitable relief asked for. Koehler v. Rowland, 275 Mo. 573; Minor v. Burton, 228 Mo. 558; Lee v. Conran, 213 Mo. 404; Chamberlain v. Waples, 193 Mo. 96. (5) According to the evidence no written agreement or memorandum was signed by the defendants, or either of them, respecting the sale of their interest in the property. Hence, the decree was clearly erroneous, for it utterly disregarded the Statute of Frauds. Sec. 2169, R.S. 1919. (6) Plaintiff, attempting to secure a decree divesting the title out of the defendants, without tendering the amount it admits would be due in that event, is guilty of such misconduct with reference to the matter as to entitle it to no relief even in a court of equity. 21 C.J. 186; Little v. Cunningham, 116 Mo. App. 545; Commonwealth v. Filiatreau, 161 Ky. 434.
Taylor, Mager & Shifrin for respondent.
(1) The evidence shows an agreement by respondent, under which possession was taken by it, to purchase the property in question, and performance, in part at least, by it of that agreement, thereby entitling respondent to a decree or judgment vesting title in it. Scheerer v. Scheerer, 287 Mo. 92; Bless v. Jenkins, 129 Mo. 647; Ross v. Alyea, 197 S.W. 268; Hobbs v. Hicks, 8 S.W. (2d) 969; Railroad v. Wingerter, 124 Mo. App. 426. The Statute of Frauds (Sec. 2169, R.S. 1919) does not govern where there has been either entire or part performance of the contract of sale. Especially is this true when, as in this case, possession of the property was taken under the agreement. (2) Whether this action be denominated as legal or equitable, the trial judge, without a jury, all parties having, without objection, participated in the trial, had jurisdiction to try the respective rights of the parties to the action, as to the property, and enter his judgment or decree accordingly. Barr v. Stone, 242 S.W. 661; Bernero v. Trust Co., 287 Mo. 602; Hunt v. Hunt, 307 Mo. 375. This is true because the petition of respondent prayed that the respective interests of the parties be adjudicated and a decree entered accordingly. R.S. 1919, Sec. 1970; Barr v. Stone, supra. (3) The trial judge had jurisdiction of the cause of action and of all the parties thereto, hence, whether there was a decree in equity or a judgment at law, it was binding on all parties. Bernero v. Trust Co., 287 Mo. 602. (4) If, as the appellants claim, the cause of action is one at law, then, unless utterly without evidence to support them, the findings of fact are binding on this court. Hunt v. Hunt, 307 Mo. 375. (5) The trial judge, being possessed of jurisdiction of the persons and of the subject-matter, could enter such decree or judgment as, from the evidence, was just and equitable, and he did so. Bernero v. Trust Co., 287 Mo. 602. (6) The record fails to show any complaint in either motion for new trial or elsewhere that the court had no jurisdiction to decree ownership of the property in respondent. Appellants' only complaint on that score is that he did not give them enough money. Alleged error not brought to the attention of the trial court cannot be considered by the appellate court. Barr v. Stone, 242 S.W. 664; Thomas v. Scott, 221 Mo. 271; R.S. 1919, sec. 1512.
An opinion in this case prepared by Commissioner LINDSAY has the approval of the court, expect as to one of the questions disposed of. The portion which has such approval, and which is adopted, follows:
To continue reading
Request your trial