Osnes v. Morris, 15155

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY; MILLER; HARSHBARGER
• Citation: 298 S.E.2d 803,171 W.Va. 266
• Parties: Rose OSNES, et al., etc. v. Frank MORRIS, et al., etc., et al.
• Docket Number: No. 15155,15155
• Decision Date: 28 January 1982

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298 S.E.2d 803 171 W.Va. 266 Rose OSNES, et al., etc.
v.
Frank MORRIS, et al., etc., et al. No. 15155. Supreme Court of Appeals of
West Virginia. Jan. 28, 1982.
Concurring Opinion Sept. 7, 1982.
Dissenting Opinion Dec. 14, 1982.

[171 W.Va. 267] Syllabus by the Court

The grant of an interest in land in this State to an incorporated church in contravention of W.Va. Const., art. VI, § 47 is utterly void ab initio and subsequent conveyance by the corporation to trustees legally entitled to hold such an interest does not cure the initially void conveyance if there are other parties who affirmatively assert a bona fide interest in the land and who can either retain possession or enter into possession automatically by operation of law.

Timothy N. Barber, Charleston, for appellants.

Jackson, Kelly, Holt & O'Farrell, Thomas E. Potter and James R. Snyder, Charleston, for appellees.

NEELY, Justice:

This case concerns the same church controversy that was before the Court in Board of Church Extension v. Eads, 159 W.Va. 943, 230 S.E.2d 911 (1976). In that earlier case the Board of Church Extension and Home Missions of the Church of God, Anderson, Indiana, brought an action to obtain title to church property in Gilboa, Nicholas County,

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under a reverter clause in a deed. ¹ This Court found that [171 W.Va. 268] the conditions triggering the reverter clause had not been met and that the plaintiff, an incorporated church, lacked the capacity to sue in West Virginia.

In the original case the determination that the Gilboa Church in Nicholas County, West Virginia, was no longer in fellowship and doctrinal unity with the Church of God was made by the Executive Council of the Church of God, Inc., which was an organ of the General Ministerial Assembly. We found that the by-laws of the General Ministerial Assembly did not grant that corporation any power to act on behalf of the General Ministerial Assembly concerning the interpretation of church doctrine or the determination of defection from church doctrine. Consequently, we held that the condition in the reverter clause had not been met since there was no resolution by the General Ministerial Assembly itself that the Gilboa church was no longer in fellowship.

Furthermore, although it was not necessary for the resolution of the case, we found that W.Va. Const., art. VI, § 47 prohibits an incorporated church from holding property in West Virginia and that W.Va.Code, 31-1-79 [1965] provided that: (1) no church can do business in a corporate capacity as an out-of-state corporation; (2) no corporation can hold property or maintain any action, suit, or proceeding without qualifying to do business in West Virginia; (3) failure to qualify may be used as a plea in abatement against any corporation that attempts to sue in West Virginia; and (4) a cause of action arising out of the holding of property or transacting business is specifically included among those causes of action to which a plea in abatement would lie under the 1965 statute.

After we rendered our opinion, the Board of Church Extension set out to cure the defects which had caused the dismissal of their action in Eads, supra. On 16 June 1977 the General Assembly of the Church of God adopted a resolution declaring the Gilboa church to be out of fellowship and doctrinal unity with the Church of God. The appellees maintain that this resolution triggered the reverter clause which caused title to the Gilboa church property to vest in the Board of Church Extension and Home Missions, a Corporation.

The Board subsequently conveyed the property to the appellees, the Executive Committee of the General Assembly and Ministerial Association of the Church of God of West Virginia, an unincorporated organization, as trustees. Appellees then brought a new action in the Circuit Court of Nicholas County to obtain possession of the property in question. In the court below they successfully argued that the condition in the deed triggering the reverter clause had been met and that the objection that the property interest was held by an incorporated church contrary to W.Va. Const., art VI, § 47, had been eliminated because the property interest had been conveyed to individual trustees legally entitled to hold the property. The circuit court agreed with the appellees and awarded them the property. We disagree and reverse.

I

The appellants assert that the entire issue is res judicata. We find, however, that the doctrine of res judicata does not apply to this case. At the time the appellees' predecessor in title, the Board of Church Extension, brought its original action, it had no right to enter the property

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whatsoever because the event triggering the reverter clause had not occurred. Consequently, the action should have been dismissed for failure to state a claim upon which relief could be granted. While we discussed in Eads, supra, the limitations on a corporation's holding land in West Virginia, and referred to the corporation law in effect at the time the action was brought, which permitted pleas in abatement to actions brought by corporations not authorized to do business, that discussion was essentially dicta. Furthermore, since the original action was brought, W.Va.Code, 31-1-79 [1965] has been repealed and civil penalties have now replaced the earlier sanction of a plea in abatement. W.Va.Code, 31-1-66 [1974].

171 W.Va. 269] II

The question before us now, therefore, is not one of res judicata but rather whether the incorporated church could ever have received an interest in the real estate in the face of W.Va. Const., art. VI, § 47. W.Va. Const., art VI, § 47 says:

No charter of incorporation shall be granted to any church or religious denomination. Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church, or religious denomination.

This constitutional provision descended to us from the State of Virginia. Powell v. Dawson, 45 W.Va. 780, 32 S.E. 214 (1899). Furthermore, this constitutional provision is the legitimate progeny of the English statutes of mortmain which played a central role in the law of property in England. In Goetz v. Old National Bank of Martinsburg, 140 W.Va. 422, 434, 84 S.E.2d 759, 768 (1954) we noted:

In our opinion, the decisions of this Court relative to religious trusts do not grow out of hostility to any church or religious organization, but they probably have their origin in the statutes of mortmain, as well as the undeviating purpose of the founders of our government to separate church from state. See Black's Law Dictionary, 4th Edition, page 1163.

and, as the Court said in Lathrop v. Commercial Bank, 38 Ky. (8 Dana) 114, 33-34 American Decisions 481 (Ky., 1839) at 489:

The prime object of the mortmain acts was to repress the alarming influence of ecclesiastical corporations, which had, even as early as the Norman conquest, monopolized so much of the land in England, that the abbot of St. Albans told the conqueror that the reason why he had subjugated the country by the single victory at Hastings was, "because the land, which was the maintenance of martial men, was given and converted to pious employments, and for the maintenance of holy votaries." The thirty-sixth chapter of Magna Charta, which was the first statutory enactment on this subject, declares that "it shall not be lawful, from henceforth, to any to give his lands to any religious house, and to take the same lands again to hold of the same house, etc., upon pain that the gift shall be void, and that the land shall accrue to the lord of the fee."

The precedent that any conveyance to an ecclesiastical corporation in contravention of the statutes of mortmain is absolutely void, and not voidable, is overwhelming. In fact, in all of the statutes of mortmain except 7 Edward I stat. 2 up until the American Revolution, the word "void" is used expressly. For example the statute of 9 Hen. III, c. 36 provides:

If any from henceforth give his Lands to any Religious house, and thereupon be convict, the Gift shall be utterly void, and the Land shall accrue to the Lord of the Fee.

While the act of 7 Edw. I stat. 2 on the subject of mortmain does not use the word "void" explicitly, it uses the word "forfeit" which, in the context of the statute, has the same meaning.

The appellees maintain that an improper conveyance to an incorporated church is not utterly void, but voidable only, and that any action to void the conveyance must be brought by the sovereign. Yet 7 Edward I

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stat. 2 is most persuasive against appellees on this point since it expressly provides for private enforcement of the policy against ecclesiastical accumulation. Under the scheme of that statute, each mesne lord in succession (under the English scheme of military tenure) could enter any estate illegally conveyed for church purposes. Thus if the immediate lord of the person who made the improper conveyance did not enter, then the next higher lord could do so after a year, and so forth until finally the king was entitled to enter. It is in this sense that the word "forfeit" is used in this statute, since the improperly conveyed estate is forfeited to interested, yet private persons. This, possibly, was the first recognition of the impossibility of public enforcement of the policy of mortmain

The statute of 23 Hen. VIII, c. 10 provides as follows:

[171 W.Va. 270] Be it therefore enacted by the King ... That all and every such uses, intents, and purposes, of what name, nature or quality they shall be called, that shall be devised, covenanted, made, declared, or in any wise ordained after the first day of March, in the three and twentieth year of the reign of our sovereign lord King Henry the eighth, by any feoffee, recoverer, or conisee, or by any other person or persons to whose use any such...