Old Nat. Life Ins. Co. v. Jerusalem Lodge No. 67

• Decision Date: 23 November 1945
• Docket Number: No. 2648.,2648.
• Citation: 192 S.W.2d 921
• Parties: OLD NAT. LIFE INS. CO. v. JERUSALEM LODGE NO. 67, FREE & ACCEPTED MASONS et al.
• Court: Texas Court of Appeals

192 S.W.2d 921

OLD NAT. LIFE INS. CO. v. JERUSALEM LODGE NO. 67, FREE & ACCEPTED MASONS et al.

No. 2648.

Court of Civil Appeals of Texas. Waco.

November 23, 1945.

Rehearing Denied March 7, 1946.

Appeal from District Court, Navarro County; A. P. Mays, Judge.

Suit of trespass to try title by the Old National Life Insurance Company against Jerusalem Lodge No. 67, Free & Accepted Masons and others, wherein the defendant filed cross-action. Judgment for defendants and plaintiff appeals.

Judgment reversed, and judgment rendered for plaintiff.

Barney A. Garrett, of Waco, for appellant.

Tyson, Dawson & Dawson and Ed Roy Simmons, all of Corsicana, for appellees.

TIREY, Justice.

This is a formal suit of trespass to try title, Rule 783, Texas Rules of Civil Procedure, to lot 1 in Block 105 of the Houston & Texas Central Railroad Addition to the City of Corsicana, Navarro County, Tex. Plaintiff brought the suit against Jerusalem Lodge No. 67 (Negro), Free & Accepted Masons (unincorporated), Ben Morgan, Worshipful Master, and F. M. Nelson, L. E. Lister, W. M. Buchanan, Robert Jewell, James Edwards, R. H. Durham and W. M. Rogers, as former members of the Lilly of the Valley Lodge No. 1933 (Negro), Grand United Order of Odd Fellows of Texas, as a class representing all former members similarly situated. Plaintiff specially pleaded that it had title to all of the property in controversy by virtue of the three, five and ten year statutes of limitations. Arts. 5507, 5509 and 5510, Rev.Civ.Stats. Jerusalem Lodge and Lilly of the Valley Lodge each entered a plea of not guilty, and in addition thereto specially pleaded that each had title to one-half of the property in controversy by virtue of said statutes of limitations, supra. By cross-action each defendant asked for relief in formal suit of trespass to try title. At the conclusion of the evidence all parties filed motions for instructed verdict. The court denied plaintiff's motions and granted defendants' motions, and plaintiff excepted.

A comprehensive statement is necessary. Prior to September 10, 1880, all of the Negro Odd Fellow lodges in Texas organized themselves into a district grand lodge and secured from the Sub-Committee of Management a charter which recognized said organization as District Grand Lodge No. 25, Grand United Order of Odd Fellows of Texas. Said Grand Lodge was an unincorporated fraternal benefit society and it adopted a constitution and by-laws in the year 1898 for its government. The certificate to the constitution and by-laws tendered in evidence certified in effect that such constitution and by-laws, with amendments thereto, were revised and duly adopted by District Grand Lodge No. 25 at the annual session held during the month of August, 1917, and further certified in effect that the same had been in full force and effect since the adoption in 1917, and that there were no amendments from August, 1917, up until the date of the certificate, which was the 12th of September, 1939. The constitution and by-laws of the Grand Lodge tendered in evidence contain Article 10, which article and provisions pertinent here are set out in the opinion of the Supreme Court in the case of District Grand Lodge v. Jones, 138 Tex. 537, 160 S.W.2d 915, and said constitution and by-laws in evidence here are also the same as the ones discussed in Modern Mutual Health & Accident Ins. Co. v. Freeman, Tex.Civ. App., 151 S.W.2d 240, writ dismissed correct judgment. See also Simpson v. Charity Benev. Ass'n, Tex.Civ.App., 160 S.W.2d 109, writ dismissed W.O.M.; Old National Life Ins. Co. v. Guest, Tex.Civ.App., 163 S.W.2d 241, writ dismissed W.O.M.; Frierson v. Modern Mutual Health & Accident Ins.Co., Tex.Civ.App., 172 S.W.2d 389, writ dismissed W.O.M. Evidence was tendered by appellant to the effect that Article 10 was in force and effect as a provision of the constitution and by-laws of said Grand Lodge in 1898, and that such provision had remained in force since its adoption. This testimony was not denied. It is true that the Grand Secretary of the parent body at Philadelphia testified by deposition to the effect that Article 10 of the Constitution and By-Laws of District Grand Lodge No. 25 was never approved by the Committee of Management or Sub-Committee of Management of the "Grand United Order of Odd Fellows in America and Jurisdiction." The booklet containing the general laws now in force for the governing of the "Grand United Order of Odd Fellows in America and Jurisdiction," the parent organization, was tendered in evidence, and sections 5 and 7 of Article 2 thereof are as follows:

"Sec. 5. In the District Grand Lodge is vested the power of government and superintendence of the subordinate lodges within its jurisdiction, in accordance with the General Laws and Regulations of the Grand United Order of Odd Fellows and subject to the supervision and control of the Committee of Management."

"Sec. 7. The jurisdiction of the District Grand Lodge shall be coextensive with the State, Territory, Province, or Island in which the same is created or formed. It shall have no right to interfere with any Lodge not within its jurisdiction, and it shall be the duty of the District Grand Lodge to see that the General Laws of the Order are enforced and are in no way transgressed or disobeyed, either by its own body or any member thereof or by any Lodge under its jurisdiction, and to protect every Lodge and all members in their just rights."

Lilly of the Valley Lodge, acting through its trustees, acquired the property in question from the agreed common source of title by general warranty deed dated February, 1904, and all of the consideration was paid by the local lodge. This deed recites in effect that the consideration was paid by the Trustees of Lilly of the Valley Lodge, acting for said Lodge, but was conveyed to said Lilly of the Valley Lodge No. 1933, Grand United Order of Odd Fellows of the County of Navarro, State of Texas, its successors and assigns forever. It is without dispute that said Grand Lodge was operating under Chapter 8 of Title 78 of Rev.Civ.Stats. of 1925, Vernon's Ann. Civ.St. art. 4820 et seq.; and the various annual licenses obtained by said lodge from the Insurance Commissioner were tendered in evidence, the first one being for the year ending March 31, 1915, and the last one being for the year ending March 31, 1938. In August, 1935, Lilly of the Valley Lodge (without permission of the Grand Master), pursuant to resolution passed at a meeting of the local lodge, and for a consideration of $727.45, executed a deed to a one-half interest in the property in question to Jerusalem Lodge. This deed, among other things, provided that the one-half interest covered a one-half interest in the hall and fixtures. Jerusalem Lodge has had joint use and possession of said property with Lilly of the Valley Lodge from the date it acquired its one-half interest therein.

Appellant contends substantially that the court erred in its failure to grant its motions for instructed verdict against each defendant and in granting each of defendant's motions for instructed verdict against it, because the evidence shows without dispute that Lilly of the Valley Lodge was a subordinate lodge of the Grand Lodge, and that by virtue of the provisions of Article 10 of the Constitution and By-Laws of the Grand Lodge and by reason of the doctrine announced in the Jones case, supra, an unrecorded express trust was created and impressed upon the land in favor of said Grand Lodge as against Lilly of the Valley Lodge and its members, and that Jerusalem Lodge had notice that neither Lilly of the Valley Lodge nor its officers had the power to convey said property, and that Jerusalem Lodge was not an innocent purchaser of the property for value without notice; and since Lilly of the Valley Lodge was the common source of title and said property could be conveyed only by the written consent of the District Grand Master (which was not obtained), and since appellant had acquired title to said property through mesne conveyances from the Grand Lodge, the trial court erred in refusing appellant's motions for verdict, and likewise erred in granting each of defendant's motions for instructed verdict against appellant. We sustain these contentions.

After a most careful consideration of the opinion in the Jones case, supra, it is our opinion that the rule announced in the Jones case is applicable to the factual situation in the case at bar.

Sections 1 and 2 of Article 10 of the Constitution and By-Laws provide:

"Sec. 1. The title to all property, real, personal or mixed acquired by any subordinate lodge or Household of Ruth, by purchase, gift, devise or otherwise, shall be acquired by such subordinate Lodge or Household of Ruth as trustee for the District Grand Lodge No. 25, Grand United Order of Oddfellows; and, the same shall be held in trust by such subordinate lodge or Household of Ruth for the benefit of the District Grand Lodge, so long as such subordinate lodge or Household of Ruth is alive and has complied with the rules, regulations and laws of the District Grand Lodge."

"Sec. 2. No property held by any subordinate lodge or Household of Ruth of the District Grand Lodge No. 25, Grand United Order of Oddfellows shall ever be mortgaged, sold, or encumbered in any manner, by the officers or members of such subordinate lodge, or Household of Ruth, without the written permission and consent of the Grand Master of the District Grand Lodge."

It is clear that under the provisions of Section 1 that Lilly of the Valley Lodge held the legal title to the property in trust for District Grand Lodge No. 25, and it had the right to so hold it as long as it was alive and complied with the rules, regulations and laws of the District Grand Lodge. Did it violate such rules, regulations and laws of the District Grand Lodge and thereby breach the duty it owed as trustee to said Grand Lodge? We think it did....