Congregation B'Nai Abraham v. Arky

• Decision Date: 13 September 1929
• Docket Number: 27107
• Citation: 20 S.W.2d 899,323 Mo. 776
• Parties: Congregation B'Nai Abraham v. Samuel Arky et al., Appellants
• Court: Missouri Supreme Court

20 S.W.2d 899

323 Mo. 776

Congregation B'Nai Abraham v. Samuel Arky et al., Appellants

No. 27107

Supreme Court of Missouri

September 13, 1929

Rehearing Overruled October 14, 1929.

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, Mayer & 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.

OPINION

Ragland, J.

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:

"This action, as instituted, was one to quit title to real estate under the provisions of Section 1970, Revised Statutes 1919. The defendants are Samuel Arky and Hannah Arky, his wife. The plaintiff alleged that it was a corporation duly organized by a pro forma decree of the Circuit Court of the City of St Louis; that it was the owner in fee simple of the real estate in dispute, which includes a building; that the defendants claim an interest and estate in said real estate; and the plaintiff asked that the titles and interest of plaintiff and of defendants be ascertained and determined, and that the court by judgment or decree define and adjudge the title, interest and estate of plaintiffs and defendants severally in the property, and that plaintiff be adjudged or decreed such other or further relief as should be deemed just and proper.

"The defendants filed separate answers, but in like form. The first count of the separate answers alleged that defendant Samuel Arky owned an undivided one-fourth interest in the property in fee simple, denied that the plaintiff was the owner in fee simple of the property, and prayed judgment, and for costs.

"The second count of the answers denied the legal existence of plaintiff as a corporation; denied its right to sue or be sued, to contract, or to own the property as 'Congregation B'Nai Abraham'; pleaded the terms of the articles of association, and the pro forma decree purporting to incorporate the plaintiff, as being in violation of Section 8, Article II of the Constitution of Missouri, and in violation of the statutes; and averred that by reason thereof the pretended corporation had no existence. The answers were verified. No reply was filed.

"It appears from the evidence that at sometime in the year 1917, defendants Samuel Arky and three other persons, Meyer Cummins, Israel Romansky and Morris Reiss, contracted for the purchase of the property in dispute from the then owners of that property, for the sum of $ 10,000 and paid $ 1,000 down as earnest money, each of the four paying $ 250. It was their purpose to sell the property to a certain lodge, known as the McKinley Lodge, a Jewish fraternal organization, for $ 12,000. They failed to make a sale to the Lodge, and found themselves with the property on their hands. It further appears that at about this time the parties named, and others, all of the Jewish faith, conceived the plan of organizing a congregation of which Samuel Arky and his three associates were or became members, and the plan was also conceived of selling the property to such congregation. Defendant Samuel Arky was active and a leading spirit in the formation of this congregation. He desired that it should be organized under the name of Congregation B'Nai Abraham. This, it appears, was because his father's name was Abraham. As a result of meetings and negotiations, an agreement was reached that the four named owners would sell and the congregation should buy the property, at the price of $ 11,000, which would give each of the four a profit of $ 250. It is shown by the evidence, although the time is not definitely fixed, that defendant Samuel Arky paid to Romansky and Reiss, $ 250 each -- that is, the sum each of them had paid as earnest money in the purchase of the property. It is shown by the evidence that, late in 1917, and pending the negotiations with the congregation, the four owners obtained two loans aggregating $ 7,000 secured by mortgages upon the property. The lender testified that he was willing to finance the four individuals, but not willing to finance a church. The evidence tends to show that as a result of these negotiations, the Congregation was to take the property and pay these loans, and was to provide the additional sum of $ 4,000 to make up the purchase price of $ 11,000. It is shown that the members of the Congregation by gifts and the giving of notes raised $ 2,000, which was turned over to defendant Arky, and which left $ 2,000 yet to be provided. Plaintiff's evidence tended to show that the transaction proceeded upon the theory that there was to be paid to defendant Arky $ 1,000, which consisted of his payment of $ 250 earnest money, the payment by him of $ 500 to Romansky and Reiss, and also $ 250 as his share of the profit. The remaining $ 1,000 to be taken care of consisted of the $ 250 due Cummins, as return of the earnest money paid by him and $ 250 as his share of the profit, $ 250 to Romansky and $ 250 to Reiss as the share of each of them in the profit. The evidence also was that Cummins subsequently donated the $ 250 representing his share of the profit.

"No written agreement was drawn and signed between the congregation and the four owners. There were meetings, and in the minutes of some of these meetings appear statements or references...