Hope of Alabama Lodge of Odd Fellows v. Chambless

• Decision Date: 22 January 1925
• Docket Number: 3 Div. 669
• Citation: 212 Ala. 444,103 So. 54
• Parties: HOPE OF ALABAMA LODGE OF ODD FELLOWS v. CHAMBLESS.
• Court: Alabama Supreme Court

103 So. 54

212 Ala. 444

HOPE OF ALABAMA LODGE OF ODD FELLOWS v. CHAMBLESS.

3 Div. 669

Supreme Court of Alabama

January 22, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by the Hope of Alabama Lodge of Odd Fellows against J.A. Chambless. From a decree dismissing the bill complainant appeals. Affirmed.

Arrington & Arrington, of Montgomery, for appellant.

Wm. F Thetford, of Montgomery, for appellee.

THOMAS J.

The suit is by a corporation to quiet title, and for an accounting against an alleged joint owner. The answer and cross-bill denied the joint ownership, and set up a chain of title from J.S. Pinckard to and from trustees of the Odd Fellows, an unincorporated fraternal association not of a business nature, and facts of a changed statu quo that would prevent the complainant denying the trusteeship and defendant's title therefrom.

The proper predicate being laid for the introduction of parol evidence, tendencies of evidence were presented to the effect that the first named trustees of said lodge, Vaughn, Peoples and Foster, and their successors in office, were its duly elected, qualified, and acting trustees; that a majority of the lodge membership in good standing (the real parties in interest; the cestuis que trustent), at a meeting of said unincorporated association, called after due notice of the time, place, and purpose, authorized said trustees, as its acting trustees, to convey its real property to Griffith, that he, with the trustees of the Damon Lodge, might extend the accrued mortgage thereon, or execute a new mortgage, and obtain the needed moneys to prevent foreclosure. This was done through the Levystein mortgage, which, becoming due and unpaid two years thereafter, was duly foreclosed, Cooper purchasing at the foreclosure sale and conveying his interest to respondent.

The evidence on both sides shows marked changes of the statu quo. There was a tendency of evidence showing a change of affiliation of the local lodge, yet a continued local object, nonbusiness fraternal affiliation. The evidence showed a change of membership by death, suspension for nonpayment of dues, acquisition of new members, the death of the original trustees, the election of their successors by the association. The evidence for complainant showed an effort to incorporate the membership of the old lodge of 75 or more members by less than a majority thereof; it is shown that such action was by only a limited number of the old membership, who had notice or knowledge of the averred facts of the cross-bill as to the old mortgage, the giving of the new and subrogated instrument by which were obtained the moneys with which the old mortgage was paid.

The rule of subrogation, in a proper case, of one evidence of debt and discharged lien on real estate, for another furnishing the moneys so used, is well established in this jurisdiction. Woodruff v. Satterfield, 199 Ala. 477, 74 So. 948; Cook v. Kelly, 200 Ala. 133, 75 So. 953; Gibson v. Gibson, 200 Ala. 591, 76 So. 949; Hampton v. Counts, 202 Ala. 331, 80 So. 413.

A court of equity treats the active members of a voluntary nonbusiness association as the owners of its properties in trust for the community interest of the unincorporated society or association. This was in effect, the result of First Nat. Bank v. Winchester, 119 Ala. 168, 172, 24 So. 351, 72 Am.St.Rep. 904, as dealing with corporate property and the stockholders' interest therein, where the corporation was in abeyance. When there is an incorporation of such society or association, participated in and authorized by a majority of its membership, the legal title passes to the corporation (Robertson v. Business Boosters' Country Club, 210 Ala. 460, 98 So. 272); such is the result as to the legal title to the community property, if incorporated by a majority of the association's members. If incorporation is participated in and authorized by less than a majority of the lodge membership, the title to said properties would not vest in the corporation, but remain in trust for the majority membership, or in abeyance for the association unincorporated. This is the theory of our unincorporated church cases. Gewin v. Mt. Pilgrims Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Walker v. McPherson, 199 Ala. 486, 74 So. 449; Blount v. Sixteenth Street Baptist Church, 206 Ala. 423, 90 So. 602. Complainant's witness Mark Ligon makes clear the fact that the incorporation had was by less than a majority of the membership of said lodge having held for it the real properties in question. He fixed the membership of the number of members incorporating at 27 of the 75 original members; yet he fails to give the names of such members when tested on his cross-examination, and admitted that only seven or eight of the members were in good standing when the trust in Griffith was created or established by the deed to him for lodge purposes, to save the property from the old mortgage.

Under the respective facts averred by the bill and the cross-bill, both parties claimed title from Pinckard to Mason et al., as trustees for the unincorporated association or lodge, and that trusteeship was for and in behalf of its members as such in the community interest. In equity the membership of the lodge were the real parties in interest--the cestuis que trustent; as such they were the owners of the lodge property and its use, had the duty of its discharge from the old mortgage and debts, and in that effort had the right of its alienation as was done to Griffith and his grantee. The decisions of this court abound in illustrations of how the equitable owners, in proper cases, have been required to be brought before the chancery court as the real parties in interest and necessary to the decree; and how such parties have been protected or held responsible for that interest, according to the justice and equity of the premises. Taylor v. A. & M. Assoc., 68 Ala. 229; First Nat. Bank v. Winchester, 119 Ala. 168, 24 So. 351, 72 Am.St.Rep. 904; Lebeck v. Ft. Payne Bank, 115 Ala. 447, 22 So. 75, 67 Am.St.Rep. 51; Town of Carbon Hill v. Marks, 204 Ala. 622, 86 So. 903; Hines v. Seibels, 204 Ala. 383, 86 So. 43; Chattanooga Savings Bank of Crawford, 206 Ala. 530, 91 So. 316; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Robertson v. Business Boosters' Country Club, 210 Ala. 460, 98 So. 272; Id. (Ala.) 103 So. 576.

If there was evidence of an alleged changed affiliation of the lodge in question, still, it was shown that thereafter the lodge continued to function as the same fraternal, nonbusiness association, that its real properties were encumbered as before by the same mortgage, which was past due, and being pressed for payment and threatened of foreclosure; it is further shown that it was to meet this pressing situation that the lodge authorized the execution of the deed to Griffith in order that he might prevent foreclosure, as was averred in the cross-bill; it is further shown that those who executed said deed were elected by the lodge as and were its acting trustees, and that they were instructed and authorized, at a due session of the lodge, and a majority of its members, after due notice for that purpose, to make or procure a payment of the old mortgage by its renewal or by the new mortgage. That is the effect of the action of the lodge itself and a majority of its members. Whatever the legal status of those acting as its trustees may be if challenged by direct action of the lodge, in this action, if they were not de jure trustees, Griffith was a de facto trustee, constituted and elected by the majority of the members of the lodge, acting for the lodge and its membership, with express instruction of the cestuis que trustent as to the property in question. Under the circumstances averred and proved, the conveyance to Griffith and his action will be recognized in a court of equity as by the trustees for the parties beneficially interested. Cicotte v. Anciaux, 53 Mich. 227, 234, 18 N.W. 793; Parish of Bellport v. Tooker, 29 Barb. (N.Y.) 256; Id., 21 N.Y. 267; First Presbyterian Church of Gallipolis v. Smithers, 12 Ohio St. 248; Nolde's Appeal, 2 Monag. (Pa.) 169, 15 A. 777; St. Luke's Church v. Mathews, 4 Desaus. (S.C.) 578, 6 Am.Dec. 619, 626. This is an application of the rule of the common law in this respect. Turner v. Baynes, 2 H.Bk.Rep. 559; Ganville v. Utting, 9 The Jurist (1845) 1081. This was the theory upon which was justified the expenditures by Robertson along the line of the purpose and by acquiescence of the members of the Business Boosters' Country Club, 210 Ala. 460, 98 So. 272; Id. (Ala.) 103 So. 576.

It is shown without dispute that the moneys so procured by Griffith, under and pursuant to the object and trust created by his deed, were used in the discharge of the former valid and unquestioned mortgage of the lodge; and the rights of the mortgagee under the old mortgage, in equity, inured to the benefit of the mortgagee furnishing the moneys for its discharge, and to the extent of the moneys so procured and used by the lodge. Woodruff v. Satterfield, 199 Ala. 477, 74 So. 948.

This is aside from the changed circumstances and laches of the respective parties that is evidenced by the lapse of time and nonaction as follows: The Griffith deed was of date May 15, 1911; the Levystein mortgage, dated February 22, 1912, due on February 22, 1914, and its foreclosure May 12, 1914; the incorporation, of date March 14, 1921, the petition therefor only signed by Lyons, Ligon, and Fortson. The present bill was filed April 6, 1921. It would appear that the time of the incorporation bears a close relation to that of the filing of the bill, rather than to a prompt, seasonable, and bona fide disaffirmance of the acts now challenged...