Godfrey v. Dwalker

• Decision Date: 31 January 1871
• Citation: 42 Ga. 563
• Parties: JACOB GODFREY et al., plaintiffs in error. v. ROBERT D.WALKER et al., defendants in error.
• Court: Georgia Supreme Court

42 Ga. 563

JACOB GODFREY et al., plaintiffs in error. v. ROBERT D.WALKER et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Secondary Evidence. Notice to Quit. Documentary Evidence. Landlord and Tenant. Before Judge Schley. Chatham Superior Court. August, 1870.

Certain members of hte Methodist E Church, South, who worshipped in Andrew Chapel, at Savannah, Georgia, joined the African Methodist Church, and claimed the church property. Being in possession, they refused to give it up to the members of the church, South, and the latter began proceedings to eject them. The notice to quit was served upon the preacher in charge of the congregation in possession, and the affidavit for a warrant was made by the chairman of the board of trustees. After the evidence was introduced, the Court charged the jury, substantially, as follows:

In this issue, you must look to the testimony and find whether the deed offered, and before you, is a deed to the Trustees of the "Methodist Episcopal Church South, " known as Andrew Chapel; if you find that the church and property in dispute is conveyed to them, then, prima facie, they are the rightful owners, and entitled to its possession, unless the defendants in this case should show, by proof "or title, " that they are entitled to it. Now, the defendants say they are the cestui que trusts, under the deed, and entitled to its benefits, being the same congregation, and are the beneficiaries under the trusts. You must look to the testimony and see if the defendants have shown you, by proof, that they are the congregation; if so, they are rightfully entitled to continue, and if there is any proof that it is occupied by other congregations or persons, other than the members of the Methodist Episcopal Church, South, and there is satisfactory evi-dence that the defendants are tenants-at-will, and if the notice has *been given according to law, the plaintiffs are entitled to recover.

The jury found for the plaintiffs. The defendants moved for a new trial, upon the following grounds:

1st. Because the Court erred in admitting the testimony of C. D. Rogers, in regard to the notice to quit the premises, the same being in writing, and the original not accounted for, and that a service of the same on the preacher in charge was a sufficient service on the party in possession.

2d. Because the Court erred in admitting in evidence a printed copy of a portion of the Minutes of the Georgia Conference, held in 1866, the Assistant Secretary of the Conference stating it was a correct copy of the proceedings of the Conferences.

3d. Because the Court erred in holding that the chairman of the board of trustees was a competent party to make the affidavit for the possessory-warrant, under the statute.

4th. Because the Court erred in charging the jury as follows: "You must look and see if the defendants have made proof that the members are the members of the Methodist Episcopal Church South."

5th. Because the Court erred in charging the jury as follows: "If you find the defendants have not made this proof the plaintiffs are entitled to recover."

6th. Because the Court erred in charging the jury that, "if the plaintiffs are the owners of the property, then the relation of landlord and tenant does exist."

7th. Because the Court erred in charging the jury that, "the trustees hold the legal title, and have it now."

8th. Because the Court erred in refusing to charge the jury that, "the legal estate continued in the trustees no longer than the execution of the trust required, and then vested in the person, beneficially entitled, the legal title merging in the equitable interest." 9th. Because the Court erred in refusing to charge the *jury that, "occupation of premises for many years is a tenancy from year to year, and that, in a tenancy from year to

year, the tenant is entitled to six months notice to quit, terminating with the year."

10th. Because the Court erred in suggesting to counsel for the plaintiffs, during the progress of the trial, and while a witness was being examined, and pending an argument by counsel on the question of admissibility of a certain part of his testimony, and before the argument was concluded, to withdraw the witness and put up another, in order to hasten the cause, and in permitting counsel to do so, against the protest of counsel for the defendants; the question as to the value of the repairs was afterwards withdrawn, counsel for plaintiffs stating he should not claim rent; the Court stated he permitted this to speed the cause, while the counsel was getting his authority.

11th. Because the jury found contrary to the evidence.

12th. Because the jury found contrary to the weight of evidence.

13th. Because the jury found contrary to the law. The Court refused a new trial, and error is assigned on said grounds. For further facts, see the opinion.

A. W. Stone, for plaintiffs in error. The proceeding is under Revised Code, sections 4005, 4007. To sustain it plaintiff must be landlord and defendant tenant: Revised Code, sections 4005, 2253. Comyn's Dig., Landlord and T.: Revised Code, sections 2259, 2269. 4005. Defendants were not tenants-at-sufferance: 4 Kent's Com., 117; 1 Bouv. L. D., 480; 2d, 574. Estates upon condition: Revised Code, section 2268; 1 Bouv. L. D., 481; 4 Kent's Com., 123, 124. Trust executed and title no longer in trustee: Revised Code, sections 2287, 2288, because cestui que trusts, slaves when deed was made, are now free: 4 Kent's Com., 325, 310; 1 Barn & Cress, 336. Parolevidence of notice to quit improperly admitted: 1 Gr. Ev., sec-tion 84; Revised Code, *section 3714. Defendants not tenants-at-will: 4 Kent's Com., 1ll; 1 Bouv. L. D., 480; 2d., 574; 12 Ga. R., 400; Revised Code, sections 2264, 2265. If tenants, they were from year to year: 2 Bl. Com., 140; 2 Bouv. L. D., 573, 574; 3 Burr, 1609; 4 Kent's Com., 112. But they were not tenants from year to year: Revised Code, section 2253. Conditions reserved only for grantor and his heirs: 20 Ga. R., 563.

A. B. Smith, Hartridge & Chisolm, for defendants in error.

LOCHRANE, C. J.

It appears from the record in this case that on the 24th September, 1845, the trustees of the Methodist Episcopal Church, of Savannah, made a deed to the trustees of the Methodist Episcopal Church, South, to a certain lot of land for the consideration of........hundred dollars in trust, upon certain conditions and for certain uses therein specified; that such trustees were to erect and build upon the land conveyed a house of worship for the use of the colored members of the Methodist Episcopal Church, South, according to the rules and discipline which, from time to time, may have been adopted by the preachers and ministers of said church, at their General Conferences. The deed further provides for the appointment of trustees to fill vacancies arising from any cause; and, by virtue of this conveyance, such trustee went into possession and erected a house of worship for the purposes expressed, and called it Andrew Chapel. In the quiet administration of its spirtual affairs, it remained undisturbed and within the protection of the General Conferences of the Methodist Episcopal Church, South, until the capture of the city of Savannah by the Federal forces. In the convulsion of public sentiment consequent upon the fall of the city, several of the members of Andrew Chapeljoined the African Methodist Episcopal Church, and, in this condition, the Trustees *of the Methodist Episcopal Church, South., permitted the occupancy of the church by them for the purposes of public worship, which was continued by the members of the new organization or African Methodist Episcopal Church. It also appears that Mr. Walker, offered, in writing, to let them have this use, to which no reply was made, and in December, 1865, a memorial was addressed by the parties plaintiffs in error to the Georgia Conference, stating that they had associated themselves with the African Methodist Episcopal Church, and requesting that Andrew Chapel might be ceded to them. To this, as well as several similar applications, the reply of the Conference, by its minutes, is found in the resolution, "that the titles of the houses of Worship used by colored charges are vested in the trustees for the use of colored members of the Methodist Episcopal Church, South, so that the Georgia Conference has no power to convey the property to any other organization whatever;" and concludes by recommending that the colored people who were lately members of our churches be permitted to use them temporarily for worship.

It also appears that in September, 1868, a notice to quit was served upon the parties, and responded to in January, 1869, declining to give up the possession until compelled by law.

In this condition of affairs, upon the 10th February, 1869, the Chairman of the Board of Trustees of Andrew Chapel made his affidavit, under the 4005th section of the Revised Code, praying process to dispossess the parties, in terms of the law, to which a counter-affidavit, under section 4007, was made, setting up that they did not hold the property in dispute by lease or rent, or at will, or by sufferance from the persons named, to-wit: The Trustees of the Methodist Episcopal Church, South.

Upon the issue joined on these proceedings, the case came on for a hearing, and the plaintiffs introduced the deed referred to in evidence, and the proof from which the recital *of facts have been stated; and the jury found the plaintiffs were entitled to the possession of the premises in dispute, upon which a judgment was entered. A new trial was moved upon thirteen grounds, which was overruled by the Court and excepted to, and now comes before this Court by writ of error.

The importance of this case may properly invoke, at our hands, a more than summary disposal of the questions involved, inasmuch as it involves the legal rights of occupancy to premises consecrated to the services...