Eugene Pioneer Cemetery Ass'n v. Spencer Butte Lodge No. 9 (I.O.O.F.)

• Decision Date: 26 July 1961
• Docket Number: I,No. 9,9
• Citation: 363 P.2d 1083,228 Or. 13
• Parties: EUGENE PIONEER CEMETERY ASSOCIATION, Respondent, v. SPENCER BUTTE LODGE NO. 9 (I.O.O.F.); Pioneer Memorial Park Association; and Trustees of Spencer Butte Lodgendependent Order of Odd Fellows, an Oregon corporation, Appellants.
• Court: Oregon Supreme Court

Page 1083

363 P.2d 1083

228 Or. 13

EUGENE PIONEER CEMETERY ASSOCIATION, Respondent, v. SPENCER BUTTE LODGE NO. 9 (I.O.O.F.); Pioneer Memorial Park Association; and Trustees of Spencer Butte Lodge No. 9, Independent Order of Odd Fellows an Oregon corporation, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 16, 1961.

Decided July 26, 1961.

John L. Luvaas, Eugene, argued the cause for appellants. On the brief were Luvaas, Cobb & Richards and Husband & Johnson, Eugene.

Mark V. Weatherford, Albany, argued the cause for respondent. With him on the brief was Harrison M. Weatherford, Albany.

Before McALLISTER, C. J., and WARNER, SLOAN, GOODWIN and LUSK, JJ.

LUSK, Justice.

This suit was brought by The Eugene Pioneer Cemetery Association to obtain a decree (1) setting aside a deed of conveyance of a cemetery property usually referred to as the Odd Fellows Cemetery in Eugene, Lane County, Oregon, in which deed The Trustees of Spencer Butte Lodge No. 9, Independent Order of Odd Fellows, a corporation, were the grantors, and the defendant Pioneer Memorial Park Association, a corporation, the grantee; (2) ordering The Trustees of said Lodge to execute a deed conveying such property to the plaintiff; and (3) enjoining the defendants from interfering with the management and control of the cemetery.

From a decree for the plaintiff in accordance with the prayer of the amended complaint, the defendants have appealed.

The plaintiff will hereinafter be referred to occasionally as 'Plaintiff Association'. Spencer Butte Lodge No. 9 will be referred to as 'The Lodge' and The Trustees of The Lodge as 'The Trustees'. Because, as will hereinafter appear, there was an earlier corporation of the same name, the defendant Pioneer Memorial Park Association will be referred to as 'Defendant Association'.

The cemetery was established in the year 1873 with title to the land in the name of The Trustees. ¹ It adjoins the campus of the University of Oregon. In 1930 owners of lots in the cemetery and others organized Odd Fellow Cemetery Association of Eugene, Oregon, pursuant to Oregon Laws 1920, Title 39, ch. 11, §§ 7033-7044. The name of this association was afterwards changed to The Eugene Pioneer Cemetery Association, the plaintiff here. The object of the association, as stated in its articles, was to take over, manage, and control and perpetually care for and beautify the Odd Fellows Cemetery in Eugene. The occasion for its organization appears to have been that all the platted lots in the cemetery had theretofore been sold; The Lodge had purchased a new cemetery site and ceased to maintain the old cemetery, which had fallen into a state of neglect and disrepair. Aside from donations, which were inadequate, there was no source of funds to devote to its care. What care it had was given by lot owners and other persons whose ancestors and relatives were buried there.

One of the organizers of Odd Fellow Cemetery Association was M. Svarverud. At about the time of its organization, he and other persons filed a petition with the county court of Lane county pursuant to Oregon Laws 1927, ch. 237, now ORS 97.360-97.430, for the vacation of certain alleys, streets and public grounds in the cemetery. An order granting this petition signed May 17, 1930, purported to vest title to the vacated lands in Odd Fellow Cemetery Association and as a result 1,600 additional burial lots were made available from the sale of which it was anticipated that a fund for perpetual care of the cemetery would be derived. These hopes met with disappointment. Not more than 45 lots were sold and the cemetery continued to be neglected, notwithstanding the individual efforts of interested persons and organizations to care for it.

This 'depressing situation', as it is characterized in a report in evidence, led to the formation in 1954 of a new corporation known as Pioneer Memorial Park Association and referred to in the record as Pioneer Memorial Park Association (No. 1) to distinguish it from the Defendant Association bearing the same name and which was later organized. Pioneer Memorial Park Association (No. 1) was a nonprofit corporation organized under ORS, Title 7, ch. 61. The incorporators were Arnold Lindeland, R. W. Leighton, Cora L. Kreamer, Charles P. Poole, Wendell S. Bartholomew, Nina N. McCornack, and Harold V. Johnson, Jr. All these except McCornack and Johnson were trustees of Odd Fellow Cemetery Association, having been elected at the annual meeting of that association held March 2, 1954. Mr. Poole became chairman of the board of the new corporation and also sexton of the cemetery.

The articles of incorporation of Pioneer Memorial Park Association (No. 1) were executed on June 9, 1954. They recite in some detail the history of the cemetery thus far summarized and state that the object of the corporation was to receive from The Lodge and Odd Fellow Cemetery Association and to use for cemetery purposes land heretofore used for such purposes and generally to operate a cemetery.

In December, 1953, The Lodge executed a bargain and sale deed to Pioneer Memorial Park Association (No. 1) of all its right, title, and interest in the cemetery property, which deed was delivered after that association was organized, and under date of September 24, 1954, Odd Fellow Cemetery Association executed a similar deed to the same grantee, thus vesting in Pioneer Memorial Park Association (No. 1) full title to the cemetery property.

Under date of January 10, 1956, Pioneer Memorial Park Association (No. 1) executed a bargain and sale deed reconveying all its right, title, and interest in and to the cemetery property to The Lodge, and on January 14, 1956, this association adopted a resolution of dissolution. The resolution recites, inter alia, that the trustees of the association had found after investigation that contemplated methods of raising funds to maintain and administer the cemetery could not be successfully employed and that there was need to reorganize the cemetery and reduce it in size, using the proceeds of the sale of a portion of the land to provide a perpetual care endowment fund, though even this plan, it was said, would not be adequate for all the purposes envisaged by the board. The resolution continued:

'Whereas, it was later found that the State Board of Higher Education would consider entering into a contract with the Pioneer Memorial Park Association by the terms of which contract, if mutual agreement could be reached, the State Board of Higher Education would provide finances for or perform the reorganization of the cemetery indicated above, and attain all of the purposes and plans origionally [sic] stated herein as the plans and purposes of this corporation, providing, the total cemetery could be made a part of the University of Oregon campus and the portions of the cemetery freed of burials by reorganization be made available for unrestricted use as part of the University campus, and

'Whereas, the corporation in the process of developing plans met with organized opposition to any plan for reorganizing the cemetery, if in that reorganization, bodies now interred in the cemetery would have to be moved from the present place of interment in the cemetery to another place of interment in the same cemetery, and

'Whereas, this opposition came to involve such bitter animosities that it was evident that a considerable ill will and bad feeling would persist in the community for a considerable time and

'Whereas, the corporation has decided that having exhausted all possibilities of carrying out its original plans, and found only one plan by which its purposes and functions can be carried out, and further finds that this plan engenders the opposition and ill will described above, therefore be it * * *'

Following these events, in the summer of 1956, there was a meeting between The Trustees and representatives of Odd Fellow Cemetery Association in which, according to plaintiff's claim, it was agreed orally that title to the cemetery property and the right to control and operate it would be vested in Odd Fellow Cemetery Association. The precise terms of the agreement as alleged in the pleadings and the evidence regarding it will be detailed later. It will be sufficient now to state the following facts: Under date of January 5, 1957, The Trustees (at that time H. L. Hilliard, Charles P. Poole, and Frank I. Peterson) signed a bargain and sale deed to the property with the name of the grantee left blank. On December 10, 1957, William E. Walsh, Charles R. Holloway, Jr., H. L. Edmunds, Ralph W. Leighton, Charles P. Poole, Sidney W. Claypoole, and D. T. Bayly, executed articles of incorporation of 'Pioneer Memorial Park Association' (the Defendant Association), a nonprofit corporation, organized pursuant to ORS, Title 7, ch. 61. See especially ORS 61.755-61.775. Thereafter, the name of this corporation was inserted in the deed executed January 5, 1957, and the deed delivered to it for a consideration of $500. The sale was reported to a meeting of The Lodge held December 24, 1957, and ratified. It is this deed which the plaintiff seeks to have set aside.

The court entered findings of fact and conclusions of law which substantially followed the allegations of the amended complaint and the reply.

The court found the following facts:

Cemetery lot holders and descendants thereof in 1930 organized Odd Fellow Cemetery Association to own and administer the cemetery. Odd Fellow Cemetery Association acquired title to the vacated portions of the cemetery by virtue of the proceedings in the county court of Lane county in 1930 and thereafter continuously operated the cemetery and sold lots therein. Prior to September 24, 1954, Charles P. Poole desired to secure title to the cemetery in a corporation 'so that it could be destroyed and abandoned and the real property transferred to the University of Oregon for building sites.' At a meeting...