McCallister v. Ross

• Decision Date: 14 March 1900
• Citation: 155 Mo. 87,55 S.W. 1027
• Parties: McCALLISTER v. ROSS et al.
• Court: Missouri Supreme Court

55 S.W. 1027

155 Mo. 87

McCALLISTER v. ROSS et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

RELIGIOUS SOCIETIES — EJECTMENT — EVIDENCE —TRUSTEES—SURVIVORSHIP — DEED — RECITATION—AUTHORITY — PRESUMPTION — ESTOPPEL.

1. Where church property was deeded to three trustees, two survivors may, on the death of one of the trustees, execute a valid conveyance of the property.

2. The burden of proving that a deed of church property executed by trustees was not executed by the authority and direction of the church members, as recited in the deed, rests on the party attacking the deed.

3. Where the members of a church knew a trust deed had been given by the trustees to secure a just debt, and acquiesced therein for nine years, they were estopped to deny that the trustees were authorized to execute the deed as stated therein.

4. Where the deed of an ancestor provided that his heirs "shall not hereafter claim any right to the premises, but shall be excluded and forever barred," they cannot be heard to object that a deed given by the ancestor's grantee was executed without authority.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Action by James McCallister against George H. Ross and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

James Booth and Jesse H. Schaper, for appellants. John W. Booth, for respondent.

MARSHALL, J.

Ejectment to recover lot 62 in block 14, as laid out on the original plat of the town of Washington, Mo. On the 27th of March, 1878, Albert Powell, for a consideration of one dollar, conveyed the premises in controversy to Masters Campbell, John A. Collins, and Andrew McCallister, in trust for the use and benefit of the First Presbyterian Church of the town of Washington. The deed recited that: "They, the said trustees and their successors, to have power of alienation in respect to the real estate herein conveyed only with the concurrence of two-thirds of the membership of said church for the time being." The deed also provided: "So that neither the said party of the first part nor his heirs, nor any other person or persons for him or in his name or behalf, shall or will hereafter claim or demand any right to the aforesaid premises, or any part thereof, but that they and every of them shall by these presents be excluded and forever barred." Thereafter a church was built on the lot, and the congregation became involved in debt to the extent of $300 for furnishing the church and providing benches therein. The plaintiff, at the request of the church congregation, paid this debt, and to secure him therefor Collins and McCallister, as surviving trustees (Campbell having died and no successor having been appointed), on the 4th of February, 1888, executed and delivered to plaintiff a note for three hundred dollars, and secured it by a deed of trust upon the lot and the church building, and they recited in the deed that it was given by direction and authority of the members of the First Presbyterian Church of the town of Washington. After the time the church was built the congregation worshiped therein until about 1881, when the pastor, Mr. Watson, left them. Thereafter the church which was known as the Southern Presbyterian Church joined the other Presbyterian Church known as the Northern Presbyterian Church, and secured the services of another pastor. The two congregations worshiped in the two churches alternately until some time in 1889, since which time no services were held in this church. Some of its members united with the other Presbyterian church, some joined other churches, some removed from Washington, and some dropped out. All the time, however, Mr. Collins, one of the trustees, kept the keys of the church, and, upon application to and leave from him, this church was used in 1895 for a small church entertainment. Albert Powell died, leaving as his heirs Mary Ross, Mattie B. Iman, Joseph C. Powell, and William B. Powell. In 1884, Joseph and William Powell conveyed an undivided half interest in the property to Mary Ross and George H. Ross. In 1897, the sheriff of Franklin county, acting as trustee, as authorized by the deed of trust to McCallister, foreclosed the deed of trust, and the plaintiff, the cestui que trust in the deed, became the purchaser of the property for the price of $100. The testimony shows that the property was worth from $150 to $250. The plaintiff then brought this action against George H. Ross, who was in possession. Mary Ross and Mattie B. Iman and her husband were, upon their motion, made parties defendant. The answer alleges the conveyance to trustees in 1878; that in 1884 the premises "ceased and have become impossible to be devoted to the particular object and purpose of said gift by said Powell on the part of the First Presbyterian Church of the Town of Washington"; the death of Powell; their heirship; the conveyance to Mr. and Mrs. Ross by Joseph and William Powell of their interest; the execution of the note and deed of trust to plaintiff; the sale under the deed of trust to the plaintiff; and then avers that the congregation...