Payne v. McClure Lodge

• Decision Date: 04 February 1909
• Citation: 115 S.W. 764
• Parties: PAYNE v. McCLURE LODGE NO. 539 et al.
• Court: Kentucky Court of Appeals

115 S.W. 764

PAYNE v. McCLURE LODGE NO. 539 et al.

Court of Appeals of Kentucky.

February 4, 1909

Appeal from Circuit Court, Edmonson County.

"Not to be officially reported."

Action by McClure Lodge No. 539 and others against H. A. Payne. Judgment for plaintiffs, and defendant appeals. Affirmed.

Baird &amp Richardson and John W. Jones, for appellant.

M. M Logan and Ora E. Hazelip, for appellees.

CARROLL J.

The appellee, a lodge of Free and Accepted Masons, brought this suit against the appellant, in which it averred, in substance, that the lodge, while appellant was its chief officer, desired to purchase a house and lot, but, not having sufficient funds on hand to pay for the property, appellant agreed to and with the lodge and its members to advance the money and let the title be conveyed to him as security, with the understanding and agreement that, when the amount he advanced was repaid to him by the lodge, he would execute to it a deed of conveyance. It further averred that the lodge had fully repaid the money advanced, but appellant refused to convey to it the property, and it asked that he be compelled to make it a deed. The answer was a general traverse of the petition. The case was prepared for trial, and a judgment entered directing the appellant to convey the property to the lodge, and also adjudging that the rents received by appellant offset the improvements made by him upon the property. This judgment we are asked to reverse.

We may say at this point, and before noticing other reasons urged by counsel for a reversal, that the decided weight of the evidence establishes that appellant while a member of the lodge, bought the property at the instance and request of the lodge and for its use and benefit, under an agreement with it that he should pay the purchase price, $250, take the title to himself, and so hold the property as security for the amount paid until such time as the lodge could raise the money. It also appears that the rents received by appellant are sufficient to compensate him for the amount expended in improvements.

The action was brought in the name and style "McClure Lodge No. 539, Free and Accepted Masons, by W. H. Ford, Floyd Sanders, and J. L. Sturgeon." The individual plaintiffs alleged that they were members of the lodge, which was unincorporated, and had been duly appointed by it to act for and in behalf of the other members, and that it would be impracticable to bring all the members before the court. Appellant insists that without an order of court the individual plaintiffs had no right to sue in their own name for the use and benefit of the lodge and the other members and that, as there was no order of court, the special demurrer interposed should have been sustained; and further argues that, as the fact was put in issue, the plaintiffs should have tendered with their petition an order or direction of the lodge authorizing them to bring suit for its use and benefit. An action in the name of and for the use and benefit of a church, lodge, society, or other unincorporated organization may be brought in the name of the church, lodge, society, or other unincorporated organization by one or more of the members who are acting with the consent or by the direction of the other members or a majority of them. Humphrey v. Burnside, 4 Bush, 215; Shannon v. Frost, 3 B. Mon. 253; Flint v. Spurr, 17 B. Mon. 500. And unless it is made to appear that the action is not prosecuted for the use and benefit of the persons in whose interest it is instituted, or that they are acting without their consent and authority, the right to maintain...