Miller v. Milwaukee Odd Fellows Temple, Inc.

• Decision Date: 12 January 1932
• Parties: MILLER v. MILWAUKEE ODD FELLOWS TEMPLE, INC., ET AL.
• Court: Wisconsin Supreme Court

206 Wis. 547

240 N.W. 193

MILLER

v.MILWAUKEE ODD FELLOWS TEMPLE, INC., ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1932.

Appeal from a judgment of the Circuit Court of Milwaukee County; Gustav G. Gehrz, Circuit Judge.

Action by Philip Miller against the Milwaukee Odd Fellows Temple, Inc., and others. From the judgment, the plaintiff, the Trustees of Excelsior Lodge No. 20, the Trustees of Rebekah Lodge No. 1, and the Wisconsin Encampment No. 1, of the Independent Order of Odd Fellows, appeal.--[By Editorial Staff.]

Affirmed.

Action begun in April, 1929; judgment entered December 12, 1930. Declaratory relief. The plaintiff is a purchaser of the premises in question under a contract entered into with the defendant, the Milwaukee Odd Fellows Temple, a Wisconsin corporation, hereinafter called the Temple corporation. The purposes of the corporation as stated in its articles are to own, hold, and convey real property, particularly the acquiring of a suitable building site and the construction of a building suitable for a meeting place of fraternal orders. It had a nominal capital stock of $25,000, divided into 250 shares of the par value of $100 each.

The complaint then describes the property in question, sets out the contract between the plaintiff and defendant for the purchase thereof, the delivery of an abstract pursuant to the terms of the contract, and the objections to the title made by the plaintiff as purchaser; alleges that the defendant Temple corporation has not perfected its title, that some of the subordinate lodges use the premises in question for a meeting place and are occupying the same; that by section 188.03 the title to all of the property of the subordinate lodges is vested in the trustees; that the Temple corporation claims and contends that the subordinate lodges can legally hold its stock, which can be voted by the trustees; that a majority of outstanding stock constitutes a quorum, and that the subordinate lodges may legally be represented at stockholders' meetings by the trustees of the respective lodges; that the chairman of the trustees is entitled to cast all votes for the lodge he represents; and that the election of one of the trustees as a director of the Milwaukee Odd Fellows Temple is legal and proper.

It is further alleged that the Temple corporation claims that it has been duly authorized to make conveyance of the premises in question.

It is further alleged that the plaintiff contends that the subordinate lodges cannot legally hold stock in a corporation; that the trustees of the several lodges cannot be made stockholders for any purpose; that there has been no conveyance of the premises from the subordinate lodges to the Temple corporation, and the plaintiff will not receive a marketable title as stipulated in the contract of purchase.

The prayer for relief is as follows: “This plaintiff prays for the judgment of the court in the premises, adjudging and declaring the rights, status and legal relations of all parties in the subject matters above set forth, and determine all questions presented and particularly as to whether the defendant corporation, The Milwaukee Odd Fellows Temple, can convey marketable title to said premises, and by what method and in what manner, and that such relief herein be granted as may be necessary or proper,” etc.

Milwaukee Lodge No. 2 of the Independent Order of Odd Fellows, Badger State Lodge No. 11 of the Independent Order of Odd Fellows, and Gem Rebekah Lodge No. 2 of the Independent Order of Odd Fellows by their respective trustees answered and prayed that the relief asked for by the plaintiff might be granted. The trustees of Excelsior Lodge No. 20, the trustees of Rebekah Lodge No. 1, and Wisconsin Encampment No. 1 of the Independent Order of Odd Fellows, filed a joint answer, in which they alleged that the defendant Milwaukee Odd Fellows Temple has never completed its organization; that the Milwaukee Odd Fellows Temple never took any action authorizing any corporation to be a stockholder; that none of the board of trustees of the several lodges and the encampment mentioned have ever given consent to hold stock in the Milwaukee Odd Fellows Temple, and that none of them have ever held stock therein; that the Milwaukee Odd Fellows Temple has never had any duly elected or duly qualified or legally acting board of directors or officers; that the articles of organization of the Milwaukee Odd Fellows Temple provide that its board of directors shall consist of nine stockholders; that no one or more of the persons elected and pretending to serve as directors of said corporation has ever been a stockholder or member in said corporation or qualified to be a director therein.

There are other allegations respecting failure to give notice of stockholders' meetings, and it is further alleged that the answering defendants are the owners of an undivided interest in the premises.

These defendants further admit certain allegations in the plaintiff's complaint, and ask that it be adjudged that the Temple corporation has not legally perfected its organization, that it has never had any lawful directors or officers, and that its pretended issue of stock is void; and further pray that the contract of sale described in the plaintiff's complaint be declared null and void, and that the title to the premises be charged with a trust in favor of the trustees of the five several subordinate lodges and the Rebekah Lodge and the encampment in the proportion that each such lodge has invested in such premises.

At the close of the trial, the trial court filed carefully prepared findings of fact and conclusions of law, upon which judgment was entered adjudging that the Temple corporation was legally organized and had authority to acquire, hold, maintain, sell, and convey the premises in question; that each and all of the defendants are estopped from questioning the legality of the incorporation of the Temple corporation or the election of its board of directors and officers and its title to or ownership of said premises and its right to sell and convey the same to the plaintiff; that each of the six subordinate lodges mentioned is a subordinate fraternal society subject to chapter 188 of the Wisconsin statutes, with full power and authority to acquire and hold stock in the Temple corporation, and that the trustees from time to time elected by said lodges held a sufficient title to the stock issued in form to said lodges to qualify said trustees to act as directors and officers of the Temple corporation; that the trustees elected by the said subordinate lodges pursuant to chapter 188 are a body corporate only for the purposes for which they are authorized to act and in the matter stated in said chapter; that the provisions of chapter 188 must be deemed a part of the by-laws of the Temple corporation and of the said subordinate lodges, and that the stock issued by the Temple organization must be deemed at all times to have been held in trust by said trustees for their respective societies or lodges; that all meetings of the Temple corporation were lawfully called; that all corporate action taken was regular and legal in all things and was participated in by the dissenting lodges and their authorized representatives; that the officers of the Temple corporation have been lawfully authorized and empowered to contract for and to consummate the sale of the premises in question; that the plaintiff entered into the contract with the Temple corporation with full knowledge of the nature and extent of the zoning restrictions in the city of Milwaukee, and waived any right to claim that the same constituted an incumbrance upon the title to the premises; that the Temple corporation had a marketable title to the premises and building thereon; and that the plaintiff would not be justified in rejecting the title tendered, provided only that plaintiff is entitled to the adjustments of unpaid purchase money as contemplated by his contract.

Judgment was entered accordingly, from which the plaintiff and Excelsior Lodge No. 20, Rebekah Lodge No. 1, and Wisconsin Encampment No. 1 of the Independent Order of Odd Fellows appeal.

Other material facts will be stated in the opinion.

Lenicheck & Boesel and H. A. Kovenock, all of Milwaukee, for plaintiff and appellant.

Wheeler & Witte, of Milwaukee, for respondents and appellants.

Seher & Seher, of Milwaukee, for respondents.

ROSENBERRY, C. J.

The outline of the pleadings and conclusions of law merely sketch the nature of the controversy. It is not deemed necessary to set out in full either the findings of the trial court or the objections to the title made by plaintiff's attorneys. While the action is one in form for declaratory relief, it has all of the essential characteristics of an action for specific performance, for, if it is adjudged that plaintiff secures a marketable title by reason of the conveyance contracted for between him and the Temple corporation, neither party to the controversy could properly refuse further performance.

The principal controversy in the case turns upon the question of whether or not the defendant Milwaukee Odd Fellows Temple is a valid, subsisting corporation. It appears in 1916 Milwaukee Lodge No. 2 owned an equity in the real property in question; that between June and September other subordinate organizations and lodges joined with the Milwaukee Lodge No. 2 in a project to erect a building on the premises to provide suitable lodge halls and other rooms. The respective lodges agreed upon the amount of their respective contributions to the project. The equity was valued at $8,100, and to carry out the plan the seven subordinate lodges organized the Milwaukee Odd Fellows Temple for the purpose of holding title to the real estate in question. Articles were filed, and on January 2, 1917, the trustees of Milwaukee Lodge No. 2 conveyed the title to the property in question to the Temple corporation. On ...