Thomas Hinds Lodge No. 58 F. & A. M. v. Presbyterian Church At Fayette

• Decision Date: 09 December 1912
• Citation: 103 Miss. 130,60 So. 66
• Parties: THOMAS HINDS LODGE NO. 58 F. & A. M. v. PRESBYTERIAN CHURCH AT FAYETTE
• Court: Mississippi Supreme Court

60 So. 66

103 Miss. 130

THOMAS HINDS LODGE NO. 58 F. & A. M. v. PRESBYTERIAN CHURCH AT FAYETTE

Supreme Court of Mississippi

December 9, 1912

October 1912

APPEAL from the chancery court of Jefferson county, HON. J. S HICKS, Chancellor.

Suit by the Presbyterial Church of Fayette against the Thomas Hinds Lodge No. 58 F. & A. M. in which defendant filed a cross-bill. From a decree granting relief to both parties both parties appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded. Overruled.

Ernest E. Brown, for appellant.

Truly, Ratcliff & Truly, R. H. Thompson and W. R. Harper, for appellee.

No brief of counsel on either side found in record.

Argued orally by Marcellus Green, for appellant and Jeff T. Truly, R. H. Thompson and W. R. Harper, for appellee.

SMITH C. J. REED, J.

OPINION

SMITH, C. J.

In the town of Fayette, Miss., there is situated a two-story brick building which has been used jointly by appellant, Thomas Hinds Lodge No. 58, F. & A. M., and appellee, the Presbyterian Church of Fayette, Miss., since its erection in 1854, the upper story as a lodge room by appellant, and the lower story as a place of worship by appellee. In 1909 a controversy over the ownership and the right to the use of the lower story of this building having arisen, this litigation was inaugurated by appellant instituting in the circuit court an action of ejectment against the church, which suit was afterwards dismissed and an unlawful entry and detainer proceeding begun instead. Afterwards appellee filed its bill in the court below enjoining the further prosecution of this unlawful entry and detainer proceeding, and praying for one of several reliefs more particularly referred to hereafter. Appellant by answer and cross-bill denied appellee's right to the relief prayed for, and prayed that appellee's claim to the use of the lower story be canceled and possession thereof be awarded to appellant, and that it recover from appellee a reasonable rental for the use of the property since the date of the termination of appellee's lease. The The decree of the court below adjudged the title to the property to be in appellant, and denied appellee the right to the use of the building or to demand a renewal of the lease; but adjudged that it was entitled to the money expended by it in making certain repairs on the property, which will be hereinafter more fully set forth, and denied to appellant the right to recover rent for the use of the property since the termination of the lease. Both parties being dissatisfied with this decree appeal to this court, appellant by direct and appellee by cross-appeal.

The facts necessary for an understanding of the points involved herein are about as follows: In 1854 appellant was the owner of a certain lot in the town of Fayette, and was contemplating the erection of a two-story building thereon, the upper story to be used as a lodge room, and the lower to be rented for business purposes. At this time there was no Presbyterian Church in Fayette, but there was such a church at Ebenezer, in Jefferson county, several miles from Fayette. Before this building was erected, the pastor of this church, with the approval of its session, wrote a letter to appellant suggesting that the lower story "be made into a church," and bound himself, if this should be done, "to raise all funds necessary to furnish it in a handsome style, and also to pay a fair portion of the expense of building and the foundation and walls of the first story." His letter then continued as follows: "The lodge, I presume, also needs a church for their own use. Heretofore, I believe, they have procured the use of the Methodist Church on public occasions. But on the plan which I now propose, an arrangement could easily be made by which the lodge can always have a church of their own on these occasions. It would not be necessary for the lodge to alienate the title of any part of the property. The title, I presume, is vested in the trustees of the lodge, and they could still hold the title and have an understanding with the religious body who may occupy the basement story as to their right of worshiping in it. If your honorable body will consent to enter into this arrangement, I will procure the appointment of a committee on the part of the church to meet any committee who may be appointed by the lodge, and the two committees can agree on the amount which I shall raise for the church, the method by which the right of worshiping in the basement story shall be held, and everything else necessary to the arrangement. For further particulars I refer your honorable body to Brother William Johnson, who will explain everything which may be necessary to a correct understanding of the subject." Appellant's reply to this letter was embodied in the following resolution: "Whereas a letter has been addressed to Thomas Hinds Lodge No. 58 of F. & A. M., proposing to them to convert the basement story of the masonic hall, now in contemplation of being built in the town of Fayette and on the lot where the old hall now stands, into a church for the use and benefit of the society of Christians called Presbyterians: Therefore, be it resolved, that Thomas Hinds Lodge No. 58 accede to the said proposition upon the following terms: That the said society of Christians called Presbyterians shall be at the whole and sole expense of building the basement story of said hall and fitting it up as a church in such style as the committees appointed by the church and lodge may approve. The ground work being brick thick and the walls being thick. The term of the lease to be as agreed upon by the committee, John Duncan, Johnson, and Shakleford, who were vested with plenary powers to act with church committee." It does not appear from the evidence, except as contained in the recital of the lease hereinafter mentioned, executed in 1876, whether or not these committees ever met and consummated the arrangements contemplated by this letter and resolution; but on September 30, 1854, appellant's minutes show that: "On motion of Brother Duncan it was resolved that the lodge furnish in common with the whole amount of brick that is now in the kiln, known as that belonging to this lodge, for the purpose of erecting a new masonic hall. The basement story to be built by and known as the Presbyterian Church. But should the said amount of brick be insufficient for the completion of the entire building, the said Presbyterian Church is to furnish and pay for the insufficient amount of brick." Nothing further appears in the testimony relative to the erection of this building, and it is absolutely silent as to the right by which appellee occupied the lower story thereof until December 27, 1875. It seems to be assumed, however, by counsel on both sides, that, whether occupying as tenant or owner, appellee was chargeable with one-third of all necessary repairs made on the building.

In December, 1875, a discussion seems to have arisen between the lodge and the church relative to the payment of the amount which the church seemed to be in arrears with the lodge for repairs made by the lodge upon the building. Thereupon a committee appointed by the church to confer with a similar committee from the lodge executed the following instrument: "Whereas, the Presbyterian Church congregation now occupying the church in Fayette has been for a long time disorganized and is in no condition to pay their pro rata of expense on the building, therefore be it resolved, that we, a committee of the Presbyterian congregation agree to pay to the trustee of the Masonic Lodge in Fayette the sum of two hundred ($ 200) dollars now in partial liquidation of the claim of the masons against the church, and the balance of one hundred and twenty-six ($ 126) dollars on the first of November, 1876. With the understanding that in future we have possession of the church so long as we pay one-third of the necessary expenses for repairs, we to be consulted upon repairs." The authority of this committee to act in this matter is now disputed by the church, but the only evidence relative thereto was the testimony of one of the members of the committee, who said that it was duly appointed by, and given authority to act for, the church. This matter seems to have been amicably adjusted, and thereafter, on the 1st day of January, 1876, the lodge executed to the church the following lease to the lower story for a period of thirty years:

"This indenture made and entered into this first day of January, A. D. 1876, by and between Thomas Hinds Lodge No. 58 of Free and Accepted Masons, duly incorporated by the legislature of the state of Mississippi of the first part, and J. P. Tunstall R. H. Forman and William Harper as trustees of the Presbyterian Church of Fayette, county of Jefferson, and state aforesaid of the second part, witnesseth: That whereas the said parties of the first part were aided in building the lower story of their Masonic Hall Building by the Presbyterian congregation and the friends of said church; and whereas, it was agreed at the time said hall was built in 1854, that said lodge would execute a lease to said church of said lower story for thirty-three years from the time, upon the condition that said church would pay their one-third part of all moneys expended by said lodge in repairs to said building; and whereas, the said church hath hitherto failed to pay their pro rata share for such repairs, but are now willing and ready to do so; and whereas said lodge hath never executed said lease in accordance with said agreement; now therefore, the said party of the first part doth by these presents let, grant, give, lease and convey for a term of thirty-three years from this date, to the said ...