Murphy v. Traylor

• Decision Date: 31 January 1974
• Citation: 289 So.2d 584,292 Ala. 78
• Parties: Mary Jo MURPHY v. Herbert TRAYLOR et al. SC 451.
• Court: Alabama Supreme Court

Page 584

289 So.2d 584

292 Ala. 78

Mary Jo MURPHY v. Herbert TRAYLOR et al.

SC 451.

Supreme Court of Alabama.

Jan. 31, 1974.

Dillon, Kelley & Barnes, Alexander City, for appellant.

Howard & Dunn, Wetumpka, for appellees.

MERRILL, Justice.

This appeal is from a decree vesting title in Equality United Methodist Church, a corporation, to 2 1/2 acres of land near the church.

The trustees of Equality Methodist Church and Equality United Methodist Church, a corporation, filed a declaratory judgment proceeding to establish the owner of the land in question.

Fred Raht Whitaker died testate on August 1, 1953. Under Paragraph 2 of his will, Whitaker provided that:

'All of the real estate which I shall own at my death, I give and devise to my beloved wife, Dorma Jewell Whitaker, if she shall survive me, for her natural life time; and if she shall not survive me, then I give and devise the same to Josie L. Yates, my wife's aunt and step-mother, for the term of her natural life time. And if both my wife and the said Josie L. Yates shall survive me, and if then my said wife shall die, leaving the said Josie L. Yates surviving, then in that event I give and devise the same to the said Josie L. Yates for her life time. If neither of them shall survive me, or on the death of the survivor of them, I give and devise the same to the Equality Methodist Church, in fee simple, the same to be used by said church for such purposes as it shall see fit.'

At the time of the death of Whitaker, the church was an unincorporated association. It was incorporated more than ten months prior to the trial.

The question presented to the trial court and here, on appeal, is whether the devise to the church is valid, inasmuch as the church was not incorporated when the testator died but was incorporated before the trial.

The pertinent part of the trial court's decree follows:

'That the Equality Methodist Church was at the time of the termination of the life estate an unincorporated religious body with a board of trustees consisting of Herbert Traylor, Charles Selman, R. W. Granger, Thomas W. Barkely, Bobby Granger, William C. Wilson and Morris Wilbanks.

'The Court having understood and considered the evidence in this cause, it is the opinion of the Court that the Equality Methodist Church was without legal capacity to receive and hold real property at the time of the termination of the life estate created by Fred Raht Whitaker. The Court is also of the opinion that such incapacity could be abrogated by a subsequent legal incorporation of the church under appropriate provisions of law, and that this incorporation was in fact accomplished by the church prior to the Court hearing this cause.

'It is the further opinion of the Court that when the life estate was terminated by the death of Dorma J. Whitaker the fee simple title to this real property vested in the hereinabove named trustees of the Equality Methodist Church in trust until such time as the church acquired legal capacity to receive and hold real property in its own name as an incorporated body.'

The appellant argues that an unincorporated religious society is without capacity to acquire or hold title to realty and cites McLean v. Church of God, 254 Ala. 134, 47 So.2d 257, and other cases which so hold. In McLean, this court stated in part:

'We have no statute nor have we recognized charitable or religious societies as having a quasi corporate existence with power to hold land, as has been done in some jurisdictions. 10 Am.Jur. section 33, page 609. On the contrary, our cases have reiterated that such societies are incapable of acquiring and holding title to land. Authorities supra.'

But this rule is not absolute. While this court has held that an unincorporated religious society cannot maintain an action in the nature of ejectment in the name of the society, Enterprise Lodge No. 352 v. First Baptist Church (Col.) of Evergreen, 288 Ala. 592, 264 So.2d 153, it has also held that an unincorporated religious society can maintain a bill for injunction to require respondents to remove a fence on its property and from further trespassing on church property, Vaughn v. Pansey Friendship Primitive Baptist Church, 252 Ala. 439, 41 So.2d 403; and that an incorporated church, by and through its trustees and deacons, can maintain a bill to quiet title to their church property, Hamner v. Carroll's Creek Baptist Church, 255 Ala. 277, 51 So.2d 164, Ford v. Washington, 288 Ala. 194, 259 So.2d 226. This court has also held that equity has power to compel specific performance of an agreement to convey land made to trsutees of a religious society before it was incorporated, upon application of the church after it became incorporated. Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947.

In Hundley v. Collins, 131 Ala. 234, 32 So. 575, this court said:

'* * * A church or religious society may exist for all the purposes for which it was organized independently of any incorporation of the body under the statutes of the state; and, it is a matter of common knowledge that many do exist and are never incorporated. For the promotion of religion and charity, they may subserve all the purposes of their organization, and, generally, need no incorporation except incidentally to further these objects. They do not place themselves beyond the pale of the protection of the law as to properties, for the lack of incorporation. It is the province of a court of equity to protect such organizations in what they hold, in order to sustain trusts, because of their charitable uses, which would otherwise be held void. * * *'

This court has dealt with deeds to unincorporated religious societies several times. The author of McLean, 254 Ala. 134, 47 So.2d 257 (1950), also authored Johnson v. Sweeney's Lane Church of God, 270 Ala. 260, 116 So.2d 899 (1959). In the latter case, Delia V. Bowen deeded property to an unincorporated religious society, but which, as here, subsequently became incorporated, and this court quoted from Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947:

"The unincorporated society was without capacity to acquire or hold title. Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211. Nor did the conveyance to trustees--or, rather, the agreement to convey--for the unincorporated society in strictness create a charitable use. Nevertheless, the jurisdiction of the chancery court over such voluntary associations and their property is maintained in this state, independently of the English statute of charitable uses and of any prerogative power of the court, on the ground of the trust nature of the property, the charitable uses for which it is designed, and the inadequacy of legal remedies.--Burke v. Roper, 79 Ala. 138; Williams v. Pearson, 38 Ala. 299; Carter v. Balfour('s Adm'r), 19 Ala. 814. Equity must therefore have power to compel a conveyance to the incorporated church. This will not involve the court in the impossible function of making a contract for the parties, nor require the performance of a contract differently from its agreed terms. An organization, under the statute, by the majority of a society, operates ipso facto as a transfer of the rights and interests of individual members to the corporation hereby created.--Happy v. Morton, 33 Ill. 398. The incorporated church has succeeded to all the rights of the unincorporated church. * * *"

This court also quoted from Hope of Alabama Lodge of Odd Fellows v. Chambless, 212 Ala. 444, 103 So. 54:

"A court of equity treats the active members of a voluntary nonbusiness association as the owners of its properties in trust for the community interest of the unincorporated society or association. This was in effect, the result of First Nat. Bank (of Gadsden) v. Winchester, 119 Ala. 168, 172, 24 So. 351, 72 Am.St.Rep. 904, as dealing with corporate property and the stockholders' interest therein, where the corporation was in abeyance. When there is an incorporation of such society or association, participated in and authorized by a majority of its membership, the legal title passes to the corporation. (Robertson v. Business Boosters' Country Club, 210 Ala. 460, 98 So. 272); such is the result as to the legal title to the community property, if incorporated by a majority of the association's members. If incorporation is participated in and authorized by less than a majority of the lodge membership, the title to said properties would not vest in the corporation, but remain in trust for the majority membership, or in abeyance for the association unincorporated. This is the theory of our unincorporated church cases. Gewin v. Mt (Pilgrim Baptist) Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Walker v. McPherson, 199 Ala. 486, 74 So. 449; Blount v. Sixteenth Street Baptist Church, 206 Ala. 423, 90 So. 602. * * *"

Then this court wrote:

'* * * Nevertheless, equity has jurisdiction over voluntary unincorporated associations and their property in this state. If the legal title never passed out of Delia V. Bowen, in equity she held such title as trustee for The Church of God of Prichard, and when that church was incorporated, the legal title passed to the incorporated church regardless of whether it was in Delia V. Bowen or the individual members of the unincorporated church. * * *'

All the justices concurred in the opinion in Johnson, and three of them had participated in the McLean decision. So, it appears that in equity this court does allow a conveyance to an unincorporated religious society to stand where the society is later incorporated in order to secure title to the property.

We fail to see any material distinction in a grant by deed and a devise by will in an attempt to convey property to an unincorporated religious society that is later incorporated. A deed is efective upon delivery and a will speaks as of the death of the testator. But if the grantor in a deed has named an improper grantee, he can redraft his deed,...