Keith & Perry Coal Co. v. Bingham

• Decision Date: 26 November 1888
• Citation: 10 S.W. 32,97 Mo. 196
• Court: Missouri Supreme Court
• Parties: KEITH & PERRY COAL CO. v. BINGHAM.

10 S.W. 32

97 Mo. 196

KEITH & PERRY COAL CO. v. BINGHAM.

Supreme Court of Missouri.

November 26, 1888.

1. RELIGIOUS SOCIETIES — INCORPORATION — POWER TO HOLD REAL ESTATE — CONSTITUTIONAL LAW.

Gen. St. Mo. 1865, c. 70, § 5, as amended by act Leg. 1871, p. 16, provides that "any number of persons, not less than three in number, may become an incorporated church, religious society, or congregation, by complying with the provisions of this chapter;" and section 2: "Any association of persons desirous of becoming incorporated under the provisions of this chapter shall present to the circuit court * * * a copy of their constitution or articles of association, and a list of all their members," etc. Held, that this act did not contravene Const. Mo. 1865, art. 1, § 12, providing that "any church or religious society or congregation may become a body corporate for the sole purpose of acquiring, holding, using, and disposing of so much land as may be required for a house of public worship," etc.

2. SAME — ADOPTION OF CONSTITUTION — REPEAL OF FORMER STATUTES.

Const. Mo. 1875, art. 2, § 8, providing that "no religious corporation can be established in this state, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages, and cemeteries," does not abrogate the act of 1865, so as to render illegal an incorporation thereunder, effected in 1876; it being provided by section 1 of the schedule to such constitution that all laws consistent therewith should remain in force until altered or repealed, and all laws inconsistent therewith should remain in force until July 1, 1877.

3. SAME — POWER TO MORTGAGE REAL ESTATE.

A religious corporation organized under Gen. St. Mo. 1865, c. 70, has power to mortgage its real estate, under Gen. St. Mo. 1865, c. 62, § 1, and Rev. St. Mo. 1879, § 706, providing that "every corporation, as such, has power * * * to hold, purchase, mortgage, or otherwise convey such real and personal estate as the purposes of the corporation may require," etc.

4. SAME — DECREE OF INCORPORATION — TITLE TO REAL ESTATE.

A decree of court incorporating a religious body passes to the corporation the title to land conveyed to such body before its incorporation, where such court has jurisdiction of the subject-matter and parties, and cannot be collaterally attacked.

5. CORPORATIONS — DEED TO TRUSTEES — VESTING OF TITLE.

Where a conveyance is made to the trustees of a corporate body, without naming them or any of them, the title vests in the corporation named in the deed.

6. COURTS — UNITED STATES CIRCUIT COURT — JURISDICTION — FORECLOSURE OF MORTGAGE.

The United States circuit court has chancery jurisdiction of a proceeding to foreclose a mortgage in Missouri, the statute of that state providing for foreclosing a mortgage in a court of law not doing away with the right to proceed in equity.

7. MORTGAGES — RIGHTS OF MORTGAGEE — PRIOR CONVEYANCE — NOTICE.

A mortgagee who has neither actual nor constructive notice of a prior conveyance of the mortgaged land cannot be prejudiced thereby.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Ejectment by the Keith & Perry Coal Company against Mattie A. Bingham. There was a verdict and judgment for plaintiff. Defendant appeals.

Adams & Field and Rollins Bingham, for appellant. Daniel B. Holmes and Botsford & Williams, for respondent.

NORTON, C. J.

This is an action of ejectment to recover possession of lot 26, in block 6, of Hubbard's addition to the city of Kansas, in which plaintiff recovered judgment, from which defendant has appealed. It was admitted on the trial that Chester Hubbard was the original owner of the lot in question and plaintiff, in support of his title, put in evidence a deed from said Hubbard, dated June 10, 1856, to J. B. Moore, to the lot in controversy; also an order of the circuit court of Jackson county, dated May 30, 1873, incorporating the members of "The First Baptist Church of Kansas City" by that name, together with the petition to the circuit court, accompanied with the articles of association signed by the members of the church organization proposed to be incorporated; also certificate of the clerk of said court, dated May 30, 1873, under its seal, that said members had become a body politic and corporate under the name and style of "The First Baptist Church of Kansas City, Missouri;" also certificate of the secretary of state, dated February 29, 1876, of the corporate existence of "The First Baptist Church of Kansas City, Missouri." Plaintiff also put in evidence a deed of mortgage from "The First Baptist Church of Kansas City, Missouri," to "The American Baptist Home Mission Society of New York," dated September 30, 1876, conveying the lot in question to secure a debt therein named; also transcript of the record of the United States circuit court for the Western district of Missouri in a suit brought by the "American Baptist Home Mission Society of New York, against "The First Baptist Church of Kansas City, Missouri," to foreclose the aforesaid mortgage, resulting on the 25th May, 1881, in a decree of foreclosure, which, together with the proceedings thereunder, report of sale of the premises made by the United States marshal to William H. Harris, the approval of said report by the court, and an order for the deed, were also put in evidence. Plaintiff further put in evidence a deed dated October 17, 1881, from said United States marshal, conveying the premises to said William H. Harris; and also various mesne conveyances putting the title acquired by said Harris, if any, in the plaintiffs in this suit. It was then stipulated that on April 1, 1880, the said lot and buildings ceased to be used for the purpose of religious worship, and were never thereafter used for that purpose. Plaintiff also put in evidence a tax deed dated March 19, 1884, and recorded March 21, 1884, conveying said lot to John C. Gage, and a deed from said Gage, dated March 19, 1884, conveying the lot to plaintiff. Evidence was offered tending to show that plaintiff paid $13,000 for the lot, and that a short time before the purchase the streets adjoining the lot had been cut down so as to leave the surface of the lot 28 or 30 feet above the surface of the street; that plaintiff had no key to any door of the church building thereon, but went upon said lot after its purchase, tore down the building, and graded the lot down to a level with the streets, at a cost of about $2,000, with a view of putting a building upon it; that after said grading had been completed, the defendant, the day before this suit was brought, entered on said lot, and built a wire fence around the same, and notified plaintiff in writing of the fact.

Defendant, in support of her claim, offered in evidence a deed from John S. Hough, dated April 29, 1857, conveying said lot to "The Trustees of the First Baptist Church of Kansas City, viz., R. S. Thomas, J. M. Ashburn, A. J. Martin, and T M. James," "to have and to hold unto them, the said trustees, parties of the second part, and to their successors, to and for the only proper use and behalf of the said church, forever." In connection with this deed, and before it was offered, the court received, over plaintiff's objection, the evidence of said John S. Hough to the effect that previous to his making said deed he had purchased the lot described therein from J. B. Moore, and received a deed from him conveying said lot; that said deed was never recorded, for the reason that he had lost or mislaid it. It was then stipulated that in 1857, after the delivery of said deed from Hough, a church was erected on said lot out of the funds subscribed for that purpose by the members of said First Baptist Church of Kansas City, Mo., which was then an unincorporated society, and that said lot and church were occupied and used exclusively by the said First Baptist Church for the sole purpose of religious worship continually thereafter until April 1, 1880, when said congregation moved into a new church building on a different lot, and that said first lot and church building thereon were never thereafter used as a place of religious worship. Defendant next offered, over plaintiff's objection, the evidence of J. M. Ashburn and A. J Martin, two of the trustees in said deed, and others, tending to show that the lot in controversy was a gift from Dr. Johnston Lykins, since deceased, and the former husband of appellant; that said Lykins purchased said lot from John S. Hough, the grantor in said deed, and paid him therefor $500, and gave the same to said trustees to hold in trust for the church, as specified in said deed, with the further understanding in parol that if the congregation of said church failed to erect a church building thereon, or if, after erecting a church building on said lot, it ceased to be used for church purposes, or as a place of worship by said congregation or denomination, that then said lot was to become the property of said Lykins, his heirs or assigns; that this parol understanding, as well as the gift, was known and assented to by the trustees in said deed and the members of said denomination, and the gift made and accepted with such understanding. It being stipulated that Johnston Lykins was duly adjudged a bankrupt in 1873, and that he died in 1876, defendant offered in evidence a deed from Edward H. Webster, assignee in bankruptcy of Johnston Lykins, dated September 2, 1884, conveying said lot as such assignee to defendant, and also a quitclaim deed from John S. Hough to defendant, dated November 11, 1884, conveying the lot in dispute. Defendant also offered in evidence the following: (8) City collector's notice of tax sales, published in the Kansas City Mail newspaper once in each week for three successive weeks, as follows, to-wit, on October 22, 1881; on October 29, 1881; and on November 5, 1881. (9)...