North St. Louis Christian Church v. McGowan
| Decision Date | 31 January 1876 |
| Citation | 62 Mo. 279 |
| Parties | NORTH ST. LOUIS CHRISTIAN CHURCH, Respondent, v. ROBERT MCGOWAN, et al., Interpleaders, Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Ellis & Sullivan, for Appellants.
I. By legislative interpretation, Wagn. Stat., 340, § 5, art. VIII, is the only provision under which churches may be incorporated. (Const. Mo., 1820, art. 13, § 5; Const. Mo. 1865, art. 1, § 12; Wagn. Stat., 339-40, ch. 37.)
II. Under this section it is necessary first (1) for all the persons, making application for incorporation, to sign a petition asking for incorporation; and, second (2), to present the same, together with a copy of their constitution or articles of association, to the circuit court of the proper county. (Wagn. Stat., 340, § 5.)
1. It is necessary that all making the application for incorporation should sign the petition.
III. The record shows that the respondent must fail in this action, first (1), because it does not appear that it ever became entitled to the property of the old church, and second (2), because it is incompetent to the institution of this action.
( a.) The old church did not become incorporated at all (cases cited supra), and therefore, the incorporators of respondent lost their interest in the money in question, by virtue of their incorporation into a distinct church. (Stebbins vs. Jennings, 10 Pick., 172; Happy vs. Morton, 33 Ill., 398; Hadden vs. Chorn, 8 B. M., 77; Baker vs. Fales, 16 Mass., 487; Gibson vs. Armstrong, 7 B. M., 481-489.) “The withdrawal of one part of a congregation, and uniting with another church, is a relinquishment of all rights in the church abandoned.” (Bouldin vs. Alexander, 15 Wall., 131; Watson vs. Jones, 13 Wall., 679.)
But if the old church was incorporated, then because,
( b.) The money in question was vested in trustees for the benefit of the non-incorporated association, and has never been conveyed to respondent. (Methodist Society of Georgetown vs. Bennett, 39 Conn., 293; Perry Trusts, § 328; Shannon vs. Frost, 3 B. M., 253; Gibson vs. Armstrong, 7 B. M., 481; Godfrey vs. Walker, 42 Ga., 562; Presbyterian Church vs. Picket, Wright, 57; Happy vs. Morton, 33 Ill., supra, p. 413; Watson vs. Garvin, 54 Mo., 354, 355, 356.)
( c.) Because the respondent is incapacitated from receiving or holding personal property at all. But even if capacitated to hold personal property for certain purposes, there is neither allegation nor proof to bring the money in question within the exception.
If authority is given to respondent by the act to sue and be sued, it is subject to the qualification that it is in relation to the sole and only legitimate purpose of its organization. (
John P. Hudgens, for Respondent.
I. It being the admitted rule of government that the will of the majority present and voting, at any regular meeting, governed and controlled the society, the incorporation of the society in accordance with this rule operated as a transfer of the rights and interests of the individual members in the property of the corporation. (Happy vs. Morton, 33 Ill., 398; Baptist Church vs. Witherell, 3 Paige Ch., 296; 42 Penn. St., 503, 506; 33 Conn., 396.)
II. The incorporation act requires only three members to sign the petition for incorporation, and present their constitution with a list of all the members to the circuit court, and then the incorporation embraces the whole list of members filed as associates with the petitioners in the corporation. (Wagn. Stat., 339, §§ 2, 3, 5.)
III. The objection to the want of capacity in plaintiff to sue under the State or church constitution, if an objection at all, cannot be made in this court. Unless raised by demurrer or answer in the court below, it is waived under the statute. (Wagn. Stat., 1014-15, §§ 6, 10; Kerr vs. Bell, 44 Mo., 120; Beal, Adm'r vs. Morgner, 46 Mo., 48; Reugger vs. Lindenberger, 53 Mo., 364.)
This was originally a suit by the plaintiff, as an incorporated church, against the Boatmen's Saving Institution, to recover the sum of $3,742.70, deposited by Robert McGowan on the 14th of January, 1873, while he was treasurer of the church, prior to its incorporation on the 29th day of January, 1873.
A brief summary of the pleadings will show the grounds on which the parties place their respective claims.
In the petition it is stated, that the plaintiff was organized as a church in 1863, and was known as the “North St. Louis Christian Church;” that it had met regularly every Sunday for worship, at its building, corner of Eighth and Mound streets, in the city of St. Louis, ever since its organization, and was governed in all matters by the majority of those present and voting at any regular meeting; that on the 26th day of January, 1873, at a regular meeting previously called to consider the subject of incorporation, a majority voted to become incorporated under the general laws of the State, and authorized the necessary steps to be taken to procure the incorporation of the church; that, in pursuance of such authority, a petition for incorporation, with a constitution and list of members, was filed in the circuit court of St. Louis county, on the 29th day of January, 1873, and a certificate of incorporation was duly issued by the court to the plaintiff, incorporating it as the “North St. Louis Christian Church;” that, prior to the incorporation, Robert McGowan was treasurer of the church, and the money deposited by him in the bank, amounting to the sum of $3,742.70, was the money of the church, which he held as its treasurer at the time of the deposit, and was deposited for safe keeping with defendant, until demanded by plaintiff; that since the incorporation, plaintiff, in its corporate capacity, by its proper officer, demanded the sum for the use and benefit of the church, and prayed judgment therefor.
The answer of the Boatmen's Saving Institution stated that McGowan deposited the money in his own name and as his own money; that on the 14th day of January, 1873, he had the same in the bank to his credit, and that on that day he took a certificate of deposit payable to himself, six months from that day, with interest, and indorsed the same payable to himself, “Robert McGowan, John Burns and Wm. D. Henry, as trustees.” It was then alleged, that it was informed that McGowan, Burns and Henry claimed the money as trustees for some church other than the plaintiff, and asked that the parties claiming the same should be ordered to interplead, and that it might be allowed to pay the money into court.
The amended answer in the shape of an interplea, on which the cause was tried, was filed in the names of McGowan, Henry and others, constituting a minority of the members of the church. It denies the allegations in the petition, but, in reality, it admits nearly all the material ones. It admits the organization of the church in 1863; admits that prior to, and at the time of the incorporation, all the interpleaders belonged to the same church with the plaintiff; that the will of the majority of its members, present and voting at any regular meeting of the church, governs and rules in all secular matters; that McGowan was treasurer of the church prior to the incorporation, and the money deposited by him was the funds of the church; that McGowan delivered the certificate of deposit for the money in question to plaintiff's treasurer, as the assets when he resigned the office of treasurer, and that plaintiff was incorporated at the time stated.
As new matter constituting a defense, it is averred that, as defendants did not sign the petition for incorporation, the incorporation did not include them, and that only such as signed the petition were incorporated, leaving those not incorporated the original church, and as such entitled to all the assets.
There was a replication denying that part only were incorporated, and alleging that, by virtue of the admitted fact that the vote of the majority governed the whole congregation, the incorporation, in pursuance of the vote of the majority, was the incorporation of the whole church, which included plaintiffs as the majority, and the defendants as the...
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