State ex rel. Knox, Atty.-Gen. v. Sisters of Mercy

Decision Date23 January 1928
Docket Number26546
CourtMississippi Supreme Court
PartiesSTATE ex rel. KNOX, ATTY.-GEN., v. SISTERS OF MERCY et al. [*]

APPEAL from chancery court of Adams county. HON. R W. CUTRER, Chancellor.


1. RELIGIOUS SOCIETIES. Religious society's property holding in excess of statutory limit is not forfeited, statute not expressly requiring it (Hemingway's Code 1917, section 4110).

The property held by a religious society in excess of that allowed by Hemingway's Code 1917, section 4110 (Code 1906, section 934), is not forfeited to the state, there being no express provision therefor in the statute.

2. RELIGIOUS SOCIETIES. Statutes. Neither provision of Constitution as to special and general laws or other provision is violated by validation of title of real estate owned by religious society (Hemingway's Code 1927 section 4525; Constitution 1890, sections 87, 88).

Laws 1926, chapter 194 (Hemingway's Code 1927, section 4525) validating the title to all real estate at the time owned by any religious society, does not violate Constitution 1890 sections 87, 88, as to special and general laws or other provision of Constitution.


3. RELIGIOUS SOCIETIES. State can merely force a sale of property held by religious society in excess of statutory limit (Hemingway's Code 1917, section 4110).

Title of religious society to property held by it in excess of that allowed by Hemingway's Code 1917, section 4110 (Code 1906, section 934), is merely one defeasible at the instance of the state, which can force a sale of the property but cannot take it from the society.

4. RELIGIOUS SOCIETIES. Statute validating title to real estate held by religious society does not affect that of subsequently acquired property (Hemingway's Code 1927, section 4525).

Hemingway's Code 1927, section 4525 (Laws 1926, chapter 194), validating title to all real estate at time owned by any religious society, cannot affect title of any property acquired by society after the statute went into effect.

5. RELIGIOUS SOCIETIES. Only the state can take advantage of restrictions imposed by statute on amount of property that religious society can hold (Hemingway's Code 1917, section 4110).

Restrictions imposed by Hemingway's Code 1917, section 4110 (Code 1906, section 934), on the amount of property which a religious society can hold, cannot be taken advantage of by private persons, though next of kin of the person from whom the property came, but only by direct proceedings by the state.

6. EQUITY. Under facts, bill to forfeit excess real estate holding of religious society would not be retained as one to compel sale.

Bill of state to forfeit real estate held by religious society in excess of statutory limit, which cannot be maintained, cannot be retained as one to compel speedy sale; that not being one of its purposes, but it being filed within a month after the conveyance in trust for the society, and there being no intimation that the trust would not be speedily executed, but, on the contrary, it being alleged that the trustee was proceeding to carry out the trust and convert the real estate into money and turn the proceeds over to the society, and that, unless restrained, he would accomplish that purpose.

ETHRIDGE, J., dissenting.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Adams county. HON. R. W. CUTRER, Chancellor.

Suit by the state, on the relation of Rush H. Knox, attorney-general, against the Sisters of Mercy and others. From a decree dismissing the original bill and the cross-bill of defendants Julienne, complainant and said cross-complainants appeal. Affirmed.


Engle & Laub, for appellants.

Our Mortmain Statute against religious societies holding property other than lawfully permitted has been before this court a number of times, and this court has held clearly that such property was held in violation of the public policy and laws of the land. Central Methodist Church v. Meridian, 126 Miss. 780, 89 So. 650. In Gunter v. Jackson, 130 Miss. 637, 94 So. 842, this court clearly indicated that in the case of a religious society owning property in excess of the amount allowed by law, an escheat proceeding by the state would be proper. As to such property held in violation of law, and in contravention of our Mortmain Statutes, a religious society is in the same position as if our statute specifically declared that such property should be escheated to the state. Such is the universal law or penalty for the violation of an act prohibiting the holding of lands by religious organizations. Wisconsin Lumber Co. v. State ex rel. Gillespie, Land Comm., 97 Miss. 571, 54 So. 247. Such was the common law.

In Louisville Insurance Co. v. Comm., 143 S.W. 1044, the court sustained an escheat proceeding with respect to real estate which a corporation had held in violation of law more than five years. This case held that after a proceeding by the state to escheat the property, all interest by the corporation in the land is terminated. The statute invoked provided that the penalty for a corporation holding property not necessary for its legitimate business for more than five years was that the property and the proceeds thereof should escheat to the state.

As the state has a right to apply the corrective and as the facts show this to be a proper case for a corrective, the demurrer should have been overruled. On the proposition that the state alone can question, the authorities are numerous. 3 Thompson on Corporations (2 Ed.), sec. 2391. The corporation holds subject to the state's right of escheat. Thompson on Corporations, sec. 2391. In 23 A. L. R. 1233, the New York Court of Appeals held that under the facts in that case neither an entry upon the lands nor the judgment of a court was necessary to consummate the title of the state under an escheat. There is an annotation to that decision, which shows the necessity of a judicial proceeding in order to divest the corporation of the property, and shows that until the state does take action, no one else has a right to complain, and that after the state takes action all interest of the corporation in the lands is terminated. 14A C. J., p. 563, sec. 2502.

The appellee vigorously urges that under Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468, the Sisters of Mercy acquired a resulting trust in this property upon the date of the death of Mrs. Mary Botto and by virtue of section 2, chapter 194, Laws of 1926, the title to this property became validated in the Sisters of Mercy. This Act was approved March 15, 1926. The record in this case shows that the vows taken by Miss Wood, in religion Sister Imelda, were the "simple perpetual vows." Cathecism Religious Profession, p. 59, sec. 163: "A religion of simple vows may be abdicate gratuitously the dominion over his property by a voluntary deed of conveyance." This being true, the status of Miss Wood as a member of this order is that she can take title but cannot dispose of the title or the other property without the permission of her legitimate superiors. Under the findings in the Maas case and under the rules, vows and obligations set forth in the exhibits to the bill of complaint, all of these acts from the filing of the proceeding in the chancery court of Adams county, Mississippi, to be declared the owner of the property down to the final conveyance to the diocesan Bishop and his successors in office must all be presumed as acts dictated by her legitimate superiors. On March 15, 1926, sec. 2, chap. 194, Acts of 1926, was approved. This section validates "Title to all real property now owned by any religious society." Could the Sisters of Mercy at any time between October 31, 1925 and March 15, 1926, have gone into a court of equity and forced a conveyance of this property to the order? We answer both of these questions in the negative. In People v. Logan Square Presbyterian Church, 94 N.E. 155, 249 Ill. 9, the court held that an act providing that Church property "owned" by the congregation shall be exempt from taxation did not exempt land held by the congregation under a contract for a deed. State v. Lowry, 77 N.E. 728, 4 L. R. A. (N. S.), 528, 9 Ann. Cas. 350.

L. T. Kennedy, also filed a brief for appellants and argued the case orally.

F. H. & F. J. Lotterhos and Chambers & Trenholm, for appellants, Frank J. Julienne et al.

Miss Wood had disposed of and divested herself of the expectancy in Mrs. Botto's estate in favor of the religious society as well as her expectancy in any other property that might thereafter come to her; and according to the laws and public policy of the state, the religious society cannot take or enjoy the property coming to it by way of a resulting trust through its acquisition of such expectancy. The effect of this is obvious, that at the death of Mrs. Botto the title to her property would have been left in the clouds since Miss Wood had no title for herself, and the one who would have had the title through her, under the law, could not take it. It is a well-known principle that title must always be vested somewhere, in some one, and it is impossible under our jurisprudence for it to be in abeyance. Equity is never without power, means and inclination to declare the lawful devolution of the title.

The court's attention is respectfully invited to the cases upon the points, as follows: That Miss Wood could not inherit for her own benefit. Maas v. Sisters of Mercy of Vicksburg, et al., 135 Miss. 505, 99 So. 468; Order of St. Benedict v. Steinhauser, 234 U.S. 640, 58 Law Ed 1512. The public policy of Mississippi as respects the acquiring and ownership of land by religious...

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