Johnson v. Allispaugh

• Decision Date: 10 February 1915
• Docket Number: No. 8474.,8474.
• Citation: 58 Ind.App. 83,107 N.E. 686
• Parties: JOHNSON v. ALLISPAUGH et al.
• Court: Indiana Appellate Court

58 Ind.App. 83

107 N.E. 686

JOHNSON

v.ALLISPAUGH et al.

No. 8474.

Appellate Court of Indiana, Division No. 2.

Feb. 10, 1915.

Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.

Action by Henry Walters against George Keefer and others, trustees, in which Albert G. Johnson, as assignee, was substituted as plaintiff. After the death of the original party plaintiff, Edwin Allispaugh, as executor of his last will and testament, appeared in the action as defendant, together with certain other parties. Decree against plaintiff Johnson, and he appeals. Affirmed.

C. W. Watkins and T. G. Smith, both of Huntington, for appellant. Lon D. Fleming, of North Manchester, Alvah Taylor, of Wabash, and S. M. Sayler, of Huntington, for appellees.

IBACH, J.

This action was originally brought by Henry Walters against George Keefer and others, who were trustees of appellee Ætna Avenue Church of the United Brethren in Christ Church, to foreclose certain mortgages. Albert G. Johnson, appellant, as assignee, was substituted as plaintiff in place of Walters. As amended, said complaint, which was in two paragraphs, also declared that appellant had been compelled to pay the sum of $287.25 to redeem the mortgaged property from tax sale. A third paragraph of complaint was filed in which appellant declared against appellee church on an open account for labor, work, material, and money furnished. Appellee Edwin Allispaugh, executor of the last will of Henry Walters, after his motion to be substituted as a party plaintiff was denied, filed certain answers, and four paragraphs of cross-complaint. Daniel K. Flickinger, the city of Huntington, and appellee the White River Conference of the United Brethren in Christ Church later became parties. No questions are presented in regard to the pleadings of the various parties, which are multitudinous in number and voluminous in length, and it is sufficient for an understanding of the questions here presented to state that answers filed by appellee Ætna Avenue Church of the United Brethren of Christ Church brought into issue the ten-year statute of limitations, the six-year statute of limitations, and the relationship between the various church bodies hereinafter mentioned. This appellee will hereinafter be referred to as Ætna Avenue Church. The cause was tried by the court, who found the facts specially. His findings are here set out in condensed form.

1. On October 1, 1889, the United Brethren in Christ Church of Huntington, Ind., under the Constitution of 1841, as unrevised, was duly organized as a corporation under the rules and regulations of the General Conference of said church and according to the statutes of Indiana, and said organization was known as the Ætna Avenue United Brethren in Christ Church of Huntington, Ind.

2. At and since last-named date there was, and still is, in force a rule and law of said General Conference of said church which provided that the title to church houses and other church property shall vest in said General Church for the use of the local organization. Between October 1, 1889, and March 22, 1890, the trustees of said Ætna Avenue Church purchased, in accordance with said rules of the General Church, the real estate described in the mortgages set out in the complaint and cross-complaint, and afterwards erected a church house thereon.

3. On March 22, 1890, said Ætna Avenue Church, by its trustees, executed to Henry Walters a mortgage on said real estate to secure a note for $650 executed by said trustees on March 1, 1890. The indorsements on the note showed that interest had been paid on it up to November 12, 1892. No interest was paid on it after said date.

4. On November 25, 1892, said Ætna Avenue Church executed another mortgage on the same real estate to Henry Walters to secure the payment of a note for $206.52, dated November 24, 1892.

5. Said Henry Walters made an indorsement on the margin of the page of the mortgage record where the first above mentioned mortgage was recorded, in the following words:

“4th of April, 1894.

I hereby donate to the United Brethren Church and cancel this mortgage upon the following conditions, namely: That should said church house be sold or pass out of the hands of said church, and in that event, this mortgage shall revive and be a lien upon said property according to the conditions of said mortgage.

Henry Walters.

Attest: C. C. Nave, R. H. Co., by C. V. Nave, Deputy.”

6. Said Henry Walters made an indorsement in all essentials similar to the above on the margin of the page of the mortgage record where the second above mentioned mortgage was recorded on April 4, 1894.

7. On March 5, 1904, Henry Walters assigned and transferred in writing said mortgages above mentioned to Albert G. Johnson for collection, and said mortgages and the debts secured thereby did not become nor never were the property of said Johnson, but the ownership thereof always remained in said Walters.

8. In 1890 the city of Huntington made certain street and sewer improvements in front of said church property, and made assessments against the same in the sum of $273.50, which were not paid when due, and on February 9, 1904, the city of Huntington sold said real estate described in said mortgages, on account of said assessments, at a tax sale, to Daniel K. Flickinger, who, in pursuance of an agreement previously made between him and the trustees of the church, was acting for and on behalf of said church and its trustees, and bought in said real estate with his own money, to hold for said church until it could repay him.

9. On February 8, 1906, Albert G. Johnson paid to the city of Huntington $287.25 on behalf of Henry Walters as mortgagee for the purpose of redeeming said real estate from said sale to Flickinger. Flickinger refused to accept said redemption money, and began an action to mandate the city to execute to him a deed for said real estate. While said action was pending, on December 14, 1907, said Flickinger assigned and transferred the certificate of sale received from said city at said sale to the board of trustees of the White River Conference of the United Brethren in Christ Church under the Constitution of 1841, unrevised. Said Ætna Avenue Church was a member of, and within the jurisdiction of, said White River Conference, and said board of trustees accepted said assignment from said Flickinger for and on behalf of, and for the use of, said local church organization, to hold until the latter could repay said debt. Said board of trustees paid said Flickinger the money he had invested in said property, with the exception of $50 which he donated to the church. On July 16, 1908, said board of trustees surrendered said certificate to said city of Huntington, and the latter executed to said board of trustees a deed for said real estate, and said Ætna Avenue Church has paid to said board of trustees part of said debt, and since the date of said deed said board of trustees has and still holds said real estate in trust for the use and benefit of said Ætna Avenue Church.

10. During all the time since the organization of said Ætna Avenue Church and the purchase of said real estate until this time, the title to said property has been in the general United Brethren in Christ Church under the Constitution of 1841, unrevised. Said General Conference is the highest legislative and governing body in said church. While said property was in form sold by said city of Huntington for said assessments as aforesaid, it was, in fact, bought in by the agents and representatives of said Ætna Avenue United Brethren in Christ Church and for the benefit and use of the latter. Said property has...