Slade v. Gammill

• Decision Date: 16 April 1956
• Docket Number: No. 5-944,5-944
• Citation: 226 Ark. 244,289 S.W.2d 176
• Parties: Joe SLADE et al., Appellants, v. G. P. GAMMILL et al., Appellees.
• Court: Arkansas Supreme Court

Page 176

289 S.W.2d 176

226 Ark. 244

Joe SLADE et al., Appellants, v.G. P. GAMMILL et al., Appellees.

No. 5-944 Supreme Court of Arkansas.

April 16, 1956.

Crumpler & O'Connor, J. Hugh Wharton and Jabe Hoggard, El Dorado, for appellants.

Henry S. Yocum, J. R. Wilson, T. O. Abbott, Surrey E. Gilliam and Bolivar L. Allen, El Dorado, for appellees.

McFADDIN, Justice.

This suit involves a portion of an old cemetery in El Dorado.In effect, it is a three-cornered lawsuit between (a)Trustees of the First Methodist Church of El Dorado (hereinafter called 'Church'); (b)Trustees of Warner Brown Cemetery (hereinafter called 'Cemetery Trustees'); and (c) certain heirs of Warner Brown, hereinafter named.The Church brought the suit against the Cemetery Trustees and Warner Brown heirs as a class, and prayed that the title of the Church be quieted to a strip of land that had formerly been a portion of the Warner Brown Cemetery.From a decree awarding the Church the prayed relief, certain Warner Brown heirs have appealed.The appellants here are Joe Slade, Pattie Goodwin Wharton, Nell Goodwin Smith and Lena Goodwin Trimble.

In 1848Warner Brown, a citizen of the then recently incorporated Town of El Dorado, deeded certain property to the Methodist Church and deeded adjoining property to three trustees of the Warner Brown Cemetery.Two of these trustees were Peter D. Goodwin and John H. Askew.The name of the third trustee has been forgotten.Unfortunately the deed from Warner Brown to the three trustees was never placed of record and its contents are necessarily left to the recollection of the witnesses.Warner Brown died in 1853, and his grave is in the Cemetery.At all events, the parcel of land became a cemetery and burials in it continued to be made at irregular intervals until 1938.Whether it was originally intended as a public cemetery is not known: there is no record of any lots being sold, but over the years it was used by people of various religious affiliations, and by those in no wise related to Warner Brown; so it may be conceded that the public nature of the cemetery has been established.See10 Am.Jur. 489.

In 1892 the original Cemetery Trustees had died without naming any successors; and seven persons, representing themselves to be some of the lineal descendants of Warner Brown, executed and recorded an instrument naming William W. Brown, J. S. Frost and Hugo W. Goodwin to be the Trustees of the Warner Brown Cemetery, and providing that the survivors of the said three trustees should have power to select successor trustees.¹In 1930William W. Brown, as the sole survivor of the 1892trustees, appointed Thomas Goodwin and W. W. Brown, Jr., to act with him as trustees.In 1952, W. W. Brown, Jr., being the sole survivor of the 1930trustees, named Alta Goodwin and Dan Lee Staples to act with him as trustees; and these three are the presently acting Trustees of the Warner Brown Cemetery named in this suit.

In 1954 the said trustees realized (a) that burials had ceased in the cemetery since 1938; (b) that the cemetery was without any money for maintenance; (c) that the monuments over the graves were falling down; and (d) that some effort should be made to obtain perpetual care.Thereupon the Cemetery Trustees made a contract with the First Methodist Church of El Dorado, which needed land on which to erect an educational building.The contract was that the trustees of the Warner Brown Cemetery Conveyed to the Church the west 86 feet of the cemetery property and, in return, the Church agreed, inter alia, (a) to construct and maintain a steel fence at least six feet high on all sides of the cemetery not enclosed by a brick wall; (b) to move all bodies from the 86-foot strip into the other portion of the cemetery; (c) to erect a suitable monument in the cemetery to the memory of Warner Brown; (d) to erect a plaque designating the cemetery as the 'Warner Brown Cemetery'; (e) to have the cemetery suitably landscaped; and (f) to provide it with continuous care.²

After the contract was made and the deed delivered and all the graves moved from the 86-foot strip and, just as the Church was about to commence the erection of a $400,000 educational building on the 86-foot strip, some question arose as to the validity of the conveyance by the Cemetery Trustees to the Church.Thereupon, the Church brought this suit, which resulted in the decree previously mentioned.The appellants here are some of the named heirs of Warner Brown resisting the suit.They were sued as representatives of all of the other heirs of Warner Brown; and on appeal they make the three points now to be stated.

I.The appellants say: 'This is not the character of action contemplated by Section 27-809 Ark.Stats., and therefore plaintiffs were not entitled to maintain the same as a class action'.Section 27-809 Ark.Stats. reads:

'Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.'

Our Statute is a recognition of the equity idea of class representation and we have a number of cases bearing on the matter of class representation.A few of them are: Connor v. Thornton, 207 Ark. 1113, 184 S.W.2d 589;andHolthoff v. State Bank, 208 Ark. 307, 186 S.W.2d 162.Appellants rely on the case of Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865, rather than the cases on class representation.We hold that the case at bar affords a classic example of the application of our Statute on class representation.Here the evidence showed that no one was able to name all of the heirs of Warner Brown.One of his descendants, who was a witness in this case, was Walter W. Brown, Jr.He testified that Warner Brown died intestate on December 3, 1853, having been married three times and having been the father of twenty-six children; that descendants of Warner Brown had been located in nearly every State in the Union; and that it was impossible to determine the names and addresses of the many heirs of Warner Brown.

Mr. Joe K. Mahoney testified that he had lived in Union County for more than seventy years and had practiced law in El Dorado for many years; that some of his ancestors were buried in the Warner Brown Cemetery; and that he had occasion in his practice to attempt to determine the heirs of Warner Brown.Mr. Mahoney said that he did not know any person who could make an affidavit as to who were all the heirs of Warner Brown; and that they were literally scattered to the four corners of the world.

Under these facts, we think that a sufficient showing was made for the application of our Statute on class representation.The appellants, Slade et al., defended the action in good faith and, as far as we can envision, made all possible defenses that anyone could have made: thus, they fulfilled the spirit of the class representation Statute.In 39 Am.Jur. 919, cases from this and other jurisdictions are cited to sustain this statement:

'The doctrine of class representation applies to defendants as well as plaintiffs.In cases where the persons who have a common interest or a common right and who properly should be made partiesdefendant to an action are too numerous to be conveniently brought into court, equity allows the suit to be brought against one or a few individuals who are in fact the representatives of the larger class.'

II.The appellants say: 'The surviving trustee was without authority to make the appointment of the successor trustees and therefore the successor trustees were not the duly qualified and acting trustees on the date the quitclaim deed was delivered.'In the argument on this point, appellants point out that no record has ever been found of the terms of the original deed made by Warner Brown to the Trustees of the Cemetery and, therefore, there is no showing that the surviving heirs of Warner Brown had the authority to appoint any trustees, as was done by the November, 1892 instrument.Appellants continue their argument by saying that the alleged trustees in 1954 had not been duly appointed as trustees and therefore had no power to make the contract with the Church and convey the 86-foot strip that had been a portion of the Cemetery.It is unfortunate that the original conveyance by Warner Brown to the three trustees was never placed of record, but that is the condition that confronts us in this record.If the three original trustees had no right to appoint successor trustees, then ever since 1892people have been acting as trustees without authority.But the point is that persons have acted as trustees and that the court of equity in this case has sanctioned such actions.

It is elementary law that a court of equity will appoint trustees in any proper case in order to prevent a failure of the trust.This was recognized by our Court in the early case of Ex parte Conway, 4 Ark. 302, loc. cit. 361:

'But even suppose that the ten trustees, who signed the deed, were incompetent to take, still, the other five being competent, a court of equity would not permit the trust to fail; for it is a rule in equity which admits of no exception, that a court of equity never wants a trustee.Whenever a trust is created, either by deed or will, or by operation of law, and no person is appointed trustee, equity will follow the estate, and cause the trust to be executed.If no trustee is named, or he dies, or the trust devolves upon an incompetent person, the trust shall prevail, and the Chancellor will appoint trustees.White v. White, Bro.C.C. 12, Atty. Gen'l. v. Rupin, 2 Peere Wms. 425, Ellison v. Ellison, 6 Ves. 663, 2Story's Equity 241, Co.Lit. 113 a.n.1.McCarty v. Orphan Asylum Society, 6 Cowen, 337.'

Again, in Vaughan v. Shirey, 212 Ark. 935, 208 S.W.2d 441, 444, we said:

'It is familiar law that equity will not permit a trust to fail through the failure...