Ebenezer Baptist Church v. Barber

• Decision Date: 29 February 1936
• Docket Number: No. 3529.,3529.
• Citation: 183 A. 469
• Parties: EBENEZER BAPTIST CHURCH v. BARBER.
• Court: New Jersey Supreme Court

183 A. 469

EBENEZER BAPTIST CHURCH

v. BARBER.

No. 3529.

District Court of New Brunswick, New Jersey.

Feb. 29, 1936.

Action by the Ebenezer Baptist Church against John Barber.

Judgment for plaintiff.

Meyer A. Reubin, of New Brunswick, for plaintiff.

Oliver Randolph, of Newark, for defendant.

MORRISON, Judge.

This is an action for a dispossess brought under subdivision 2 of section 107 of the District Court Act, 2 Comp.St.1910, p. 1988, as amended by P.L.1920, p. 479 (Comp.St. Supp.1924, § 61—107, subd. 2), brought by the Ebenezer Baptist Church, a religious society incorporated under the laws of this state, through its treasurer, Barton Tatum, against one John Barber, to recover possession of the parish house occupied as tenant by John Barber, by reason of his failure to pay, upon demand, the monthly rental of $20 on the 1st of February, 1936, for the month of February to the said Barton Tatum. The following are the facts:

It appears that the said John Barber entered into possession of the parish house in the year of 1929 pursuant to an agreement between the then existing officers of the said church and the said John Barber at a monthly rental of $25 per month, payable in advance on the 1st day of each month. It seems that the said John Barber has been in possession under the said agreement up to the time this action was brought, and for some time prior to the institution of this suit had been paying his rent to one Earl McCargo, who, it seems, was treasurer of the said church until an election on January 6, 1936. On January 6, 1936, the regular annual church election was held, resulting in the election of new sets of officers who were elected for a term of one year. Earl McCargo, it seems, was not re-elected as treasurer, but Barton Tatum succeeded to this office.

Since the election of January 6, 1936, the newly elected officers have been in complete physical possession of the church premises. The rules, customs, and by-laws governing the said church seem to have been observed by the officers now in possession, and no evidence has been presented to show otherwise. Necessary supplies, such as fuel and so forth, were purchased by the present officers and paid for by the treasurer from a checking account in the name of the church in the National Bank of New Jersey, New Brunswick, N. J. Church books are being kept by the church clerk, and routine details connected with the administration, such as correspondence, minutes, and so forth, are similarly handled. Obligations incurred in behalf of the church have been paid, and church business appears to be conducted in an orderly and businesslike manner. Church services have been conducted regularly each Sunday by duly ordained ministers, and fees for the same have been paid. Rev. M. Benjamin Gaines was chosen by the officers and members as permanent church pastor, and church functions and services have been held under his direction and supervision. Rev. Gaines' salary has likewise been paid for by the present officers.

On January 17, 1936, the newly elected officers authorized a committee to notify John Barber to pay all future rents on the parish house to Barton Tatum, treasurer. This notice was duly served, and on February 1, 1936, when the monthly rent became due, upon demand, Mr. Barber refused to pay his rent to the said treasurer. Thereafter, at the meeting of the officers, a resolution was adopted authorizing the said Barton Tatum to institute this action in behalf of the said church.

At the trial of the said cause, motion was made to admit certain individuals as party defendants in the said cause; contention being made that these were the proper officers of the church and have an interest in the subject-matter of this suit. This motion was denied for reasons which will hereafter be discussed.

Mr. Barber at the trial produced a receipt showing payment of $20 for rent on the parish house for the month of February, which receipt was signed by Earl McCargo, who has, as hereinbefore stated, been the treasurer prior to the election of January 6, 1936. Mr. Barber testified that he paid this rent after notice to him by the present officers, and justified this payment by saying that he did not recognize the present officers as the proper officers of the said church, nor did he recognize Barton Tatum as the church treasurer, and refused to pay him any rent. He admitted that the premises in question were let to him by the governing board of the church in the year of 1929.

Counsel for the defendant first contends that his motion to admit others as party defendants should have prevailed. I have examined the District Court Act pertaining to landlords and tenants and have been unable to find any authority therefor. This question has been raised in the case of Brahn v. Jersey City Forge Company, 38 N.J.Law, 74, on page 80, and Judge Van Syckel for the Supreme Court, stated: "The act makes no provision for admitting other parties to defend, and there is nothing in the statute which, by implication, would seem to justify such a practice." See, also, McMahon, Prosecutor, v. O'Brien, 58 N.J.Law, 548, 33 A. 848.

Obviously, admitting in this case other parties to defend, whose claim to office conflicted with the present officers, by whose authority this suit has been instituted, would result in this court's determining the right to an office. This cannot be done by this court. The courts of this state have repeatedly held that the only method by which the right to an office can be judicially determined in this state is by proceedings in the nature of a quo warranto, and this is true not only with relation to state and municipal offices, but also those of religious as well as secular. Tonkin v. Kenworthy, 112 N.J.Law, 274, 170 A. 233; Smith v. Trustees of Bethel African Methodist Episcopal Church of Jersey City, 89 N.J.Law, 397, 99 A. 102; Schilstra et al. v. Van Den Heuvel et al, 82 N.J.Eq. 155, 90 A. 1056. Since no direct adjudication of the title to the disputed offices has been made by the proper tribunal, the same cannot be inquired into collaterally. Rhinesmith v. Goodfellow, 111 N.J.Law, 604, 169 A. 279; Weitz v. Preston, 113 N.J.Law, 271, 174 A. 429.

Having determined that title to the offices of the church cannot be inquired into collaterally, it becomes necessary to decide to whom the defendant, John Barber, is obligated to pay his rent. Although no evidence has been presented impugning the title of the present officers of the church, their present authority can, in law, be supported, at least, as de facto officers of the Ebenezer Baptist Church. Justice Parker in the case of Walsh et al. v. Thompson, 87 N.J.Law, 49, 93 A. 857, 858, said: "A similar rule prevails with regard to collateral attack on the status of a de facto officer, such as the relator. His acts as such de facto officer are valid as to the public and third persons. Mitchell v. Tolan, 33 N.J. Law, 195. His title need be no more than colorable. State v. Zeller, 83 N.J.Law, 666, 85 A. 237 [L.R.A.1917C, 217]. * * * So long as a person actually occupying and exercising the office as part of an actually operating government of the township under color of title presents the claim on behalf of the township, the county clerk is fully protected in making the payment, and the courts will take care of its proper application. In such case his duty is plain, and that is to pay over the money to the officer shown to be exercising the functions of the office under color of...