Kelsey v. Jackson

• Decision Date: 15 May 1905
• Citation: 123 Ga. 113,50 S.E. 951
• Parties: KELSEY. v. JACKSON et al.
• Court: Georgia Supreme Court

123 Ga. 113

50 S.E. 951

KELSEY.

v.JACKSON et al.

Supreme Court of Georgia.

May 15, 1905.

RELIGIOUS CORPORATIONS — ACTIONS BY AND AGAINST—TRUST PROPERTY—SUBJECTION TO DEBTS.

1. In order for a church to sue or be sued as an entity, it must have been incorporated, or else certificates of the appointment of trustees must have been filed as provided by Civ. Code 1895, § 2355.

2. If trustees hold title to property for a church which has not been incorporated, and where no certificate has been filed as provided by the Code section just cited, nevertheless the trust property may be subjected by proper proceeding to a debt for which it is liable.

3. In such a proceeding the trustees are the only necessary parties defendant.

4. Trust property of an unincorporated church in the hands of trustees can be subjected for a debt duly incurred to the pastor for salary and rent of parsonage, and, in the absence of other property, the church edifice and site in the hands of trustees can be subjected for such a debt.

(Syllabus by the Court.)

Error from City Court of La Grange; F. M. Longley, Judge.

Action by J. Kelsey against John Jackson and others. Judgment for defendants, and plaintiff brings error. Reversed.

Kelsey brought suit in the city court of La Grange against Jackson and others as deacons and trustees of the First Baptist Church, Colored, of La Grange. He alleged that they were the trustees of the church, and that the title to the church property was in them, and they held and controlled it for the benefit of said church. Certain real estate was described, and it was alleged that there was no other trust property. He further alleged that the church was indebted to him for a stated amount for salary as pastor, and also a certain amount for the rent of a parsonage for him to occupy; that these debts were regularly created by the conference, the proper authority under the laws of the church to make such a contract, create the debt, and bind the property; that this was an indebtedness of the trust estate, and for which it was liable; and it was sought to obtain a judgment subjecting it to the payment of the claim. It was not alleged that the church was incorporated, or that any certificate or certificates had been filed as provided in section 2355 of the Civil Code of 1895. On demurrer the presiding judge dismissed the petition because it did not appear that the church had been incorporated, or the names of the trustees entered of record, or the name, style, and objects of the association recorded, as required by the statute; and also on the ground that the plaintiff is seeking a special judgment against the trust estate for services rendered the cestuis que trust.

Harwell & Lovejoy, for plaintiff in error.

D. J. Gaffney and F. P. Longley, for defendants in error.

LUMPKIN, J. (after stating the facts). 1-3. An action cannot be brought by or...