Ervin v. Davis

• Citation: 199 S.W.2d 366,355 Mo. 951
• Decision Date: 13 January 1947
• Docket Number: 39845
• Parties: Clifton G. Ervin, Appellant, v. Harley Davis et al
• Court: United States State Supreme Court of Missouri

199 S.W.2d 366

355 Mo. 951

Clifton G. Ervin, Appellant, v. Harley Davis et al

No. 39845

Supreme Court of Missouri

January 13, 1947

Rehearing Denied February 10, 1947.

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

Luman Spry and Frederic A. Culmer for appellant.

(1) A voluntary unincorporated religious organization as such cannot acquire or hold any title, legal or equitable, to property, in and by its organizational name. Farm & Home Savings & Loan Assn. v. Armstrong, 85 S.W.2d 461; Tucker v. Western Diocese of Missouri, 264 S.W. 897. (2) A deed in which the professed grantor has no right, title or interest in and to the property supposedly conveyed is invalid and void. Potter v. Long, 117 S.W. 724. (3) Where the purported principal has no legal capacity to perform an act, authorization to an agent is impossible and void. 2 C.J., p. 430. (4) The rights and powers of trustees depend absolutely upon the trust instrument. Even a supervising Court may not authorize a trustee to depart from the terms of his trust, except in cases of emergency and to protect the cestui que trust. Price v. Courtney, 87 Mo. l.c. 395; Siegle v. First Natl., etc., 90 S.W.2d l.c. 781; Loud v. Union Trust Co., 281 S.W. 744. (5) Trust property rights are determined finally, under the trust instrument, by the civil courts. This trust stems from the deed and from nothing else. No ecclesiastical question is involved. The proper civil courts are the interpreters of trusts and their deeds and the guardians of property rights arising under them. Marr v. Galbraith, 184 S.W.2d l.c. 193. (6) An unauthorized mortgage or pledge created by a trustee for purposes other than those of the trust itself is invalid and void, as well as one whose effect is to defeat the purposes of the trust. Union Trust Co., etc., v. Johns, 176 N.Y.S. 525, 107 Misc. 12; 65 C.J., p. 789, sec. 60, nn. 67, 68; ibid., pp. 702-3; ibid., p. 787, n. 42 (7) The trust herein is an express trust with a specific charitable use. The law favors and nourishes charity. Perpetuity is the essence of charitable use. Where such uses appear the intent of the grantor is the principal thing. When the intent is ascertained the courts will give it full effect. When lands are given for a charitable use they are inalienable for any other purpose. Strother v. Barrow, 151 S.W. l.c. 961; Glaze v. Allen, 213 S.W. l.c. 785; Mott v. Morris, 155 S.W. 434; Burrier v. Jones, 92 S.W.2d l.c. 887; Marr v. Galbraith, 184 S.W.2d l.c. 195. (8) Absence of consideration for a deed of trust and note is ground for setting both aside. Lapin v. Crawford, 85 S.W. 535. (9) Defendant Davis is conclusively bound by the allegation of his petition in Davis v. Holliday, 188 S.W.2d 40 (admitted in this case) that the deed of trust in issue here is worthless and uncollectible. Berger Mfg. Co. v. Phillips Hotel, etc., 89 S.W.2d l.c. 705, and case herein cited. (10) The doctrine of laches is not applicable to the facts herein presented, as against plaintiff, and Davis never was in possession of the property in issue. But if the note in issue ever had validity, Davis has slept upon his alleged rights and is estopped now to foreclose his deed of trust, even though, for any reason, he might have been entitled so to do. Davies v. Keiser, 246 S.W. l.c. 901. (11) No acquiescence, or purported ratification of this deed of trust in question, and the note, even if it existed, could support defendant Davis' case. Concurrence among donees is ineffectual to alienate this trust with a charitable use, for any other purpose or use. Marr v. Galbraith, 184 S.W.2d l.c. 195. (12) A deed of proper record is sufficient notice to all concerned with its contents. R.S. 1939, secs. 3426, 3427; R.S. 1929, secs. 3039, 3040; R.S. 1919, secs. 2198, 2199, as amended by Laws of 1921. (13) Mistakes of title and interest, of all parties, are ground for setting aside a deed of trust and note secured thereby. Castleman v. Castleman, 83 S.W. 757.

Wilbur F. Daniels and Roy D. Williams for respondents.

(1) Appellant must restore to the respondent, Harley Davis, the consideration paid as a condition precedent to a court of equity cancelling said deed of trust. 54 C.J., sec. 136, p. 66; First Methodist Church of Poplar Bluff v. Berryman, 303 Mo. 475; Githens v. Butler County, 350 Mo. l.c. 299. (2) Trustees of church property vested with title by reason of a "trust clause" as contained in the Sears' deed of September 3, 1872 have the right and power to execute a valid mortgage. Bushong v. Taylor, 82 Mo. 660; Lewis v. Brubaker, 322 Mo. 52, 14 S.W.2d 982; 54 C.J., sec. 128, p. 63; sec. 134, p. 65; sec. 135, p. 65; Moore v. Stemmons et al., Trustees of the Methodist Episcopal Church, 94 Mo.App. 475; Linn v. Carson, 73 Va. 170; Magie v. The German Evangelical Dutch Church of Newark, 13 N.J.Eq. 77; Taylor v. Campbell, 50 Ind. 515; Keith & Perry Coal Co. v. Bingham, 97 Mo. 196; Littel v. Wallace, 80 Ky. 252; Sohier v. Trinity Church, 109 Mass. 1; Sellers Chapel Methodist Church of Braddock v. Redman, 21 A. 145; Lyons v. Planters Loan & Savings Bank, 12 S.E. 882; Harrisburg Lumber Co. v. Washburn, 44 P. 390; 85 A.L.R. 945; 10 Am. Jur., pp. 139, 607, 690. (3) The Church Discipline of the Methodist Episcopal Church South expressly provides for the mortgage of church property by "trustees" and the civil courts will look to said Discipline in determining the power and right of said trustees to mortgage. Plaintiff, appellant, must adhere to the Church Discipline. 54 C.J., sec. 124, p. 61; Hayes v. Manning, 263 Mo. 1; First Methodist Church of Poplar Bluff, v. Berryman, supra, l.c. 482; Methodist Episcopal Church Discipline, 1871, Par. 2; Methodist Episcopal Church Discipline, 1926, Par. 231; Methodist Episcopal Church Discipline, 1926, Par. 233; Methodist Episcopal Church Discipline, 1926, Par. 242; Methodist Episcopal Church Discipline, 1926, Par. 243; Methodist Episcopal Church Discipline, 1926, Par. 244; Methodist Episcopal Church Discipline, 1934, Par. 250; Methodist Episcopal Church Discipline, 1934, Par. 251; Methodist Episcopal Church Discipline, 1934, Par. 252; 45 Am. Jur., sec. 36, p. 746. (4) The named "trustees", or their successors in office, in the Sears' deed executed as aforesaid, had the power and right to mortgage said property by the terms of the deed itself. 12 Words & Phrases, p. 681; Montgomery v. Carlton, 99 Fla. 152, 126 So. 135; Page v. Covington, 187 N.C. 621, 122 S.E. 481; Board of Trustees of St. Helen's Hall v. Oregon Consistory No. 1, 103 Ore. 621. (5) The Sears' deed did not create a charitable trust as Sears "bargained and sold" said premises and $ 350 consideration was paid therefor and the fee simple title was vested in the named trustees and their successors in office. Methodist Episcopal Church Discipline, 1871, Ans. 1; Magie v. The German Evangelical Dutch Church of Newark, supra, l.c. 79; Taylor v. Campbell, supra, l.c. 519; Methodist Episcopal Church Discipline, 1926, Par. 233; 11 L.R.A. (N.S.) Note p. 523; Hayes v. Manning, supra, l.c. 45; 45 Am. Jur., sec. 62, p. 773.

OPINION

Douglas, J.

This is a suit to cancel a deed of trust and to enjoin its foreclosure. Plaintiff, Rev. Ervin, is the present preacher of the Fayette Methodist Episcopal Church, South, a voluntary, unincorporated, religious association, hereinafter referred to as the church. The deed of trust is on the church parsonage, acquired as a parsonage in 1872, and now occupied as a residence by Rev. Ervin.

Also at Fayette there is Central College, a Methodist Episcopal Church College. In 1928 the college was carrying out a building program and erected on its campus a Parish House at an approximate cost of $ 60,000 for the sole use of the church. Central College made a proposal to the church that it would also build on its campus a new church building to cost $ 125,000, in which the church would continue to exercise a perpetual right of worship, if the church would pay Central College $ 30,000. The proposal was accepted and the church was authorized by the Quarterly Conference of the Methodist Episcopal Church to borrow the money from the Fayette Bank. The church trustees were authorized to execute a promissory note for $ 8,000, to secure it by a deed of trust on the parsonage property, and to turn the note and deed of trust over to the bank as collateral security to be kept with other security for the $ 30,000 loan. The note and deed of trust were executed and turned over to the bank, the loan was obtained, and the money paid to Central College. Part of the loan was repaid and a balance of $ 14,500 was refunded by a new loan authorized by the Quarterly Conference also to be partially secured by the same note and deed of trust on the parsonage. This loan was not repaid.

Upon advertisement of foreclosure of the deed of trust on the parsonage, plaintiff instituted this suit and obtained a temporary injunction restraining the sale. However, the chancellor found the deed of trust constituted a valid lien, dissolved the temporary injunction, and ordered foreclosure.

The parsonage was acquired by the following deed:

"This Indenture Made on the 3rd day of September, A.D. One Thousand Eight Hundred and Seventy-two by and between John T. Sears and Bettie B., his wife, of the County of Howard in the State of Missouri, parties of the first part, and Adam Hendrix Alexander Mitchell, W. H. Nipper, J. M. Hicks and J. E. Ewing, Trustees, in trust for the uses and purposes hereinafter mentioned, all of the County of Howard in the State of Missouri, parties of the second part,

"WITNESSETH That the said parties of the first part in consideration of the sum of Three Hundred and Fifty Dollars to them paid by the said parties of the second part, the receipt of which is...