Tunstall v. Wormley

• Decision Date: 14 March 1881
• Docket Number: Case No. 606.
• Parties: CHARLES TUNSTALL v. WALTON WORMLEY ET AL.
• Court: Texas Supreme Court

54 Tex. 476

CHARLES TUNSTALL

v.WALTON WORMLEY ET AL.

Case No. 606.

Supreme Court of Texas.

Mar. 14, 1881.

APPEAL from Brazoria. Tried below before the Hon. A. P. McCormick.

Suit by Wormley, for himself and numerous other parties, alleged to have formed themselves into an association for religious and charitable purposes under the name of the “Missionary Baptist Church,” for the recovery of a lot of ground and improvements in Brazoria, against the appellant Tunstall and others.

The petition charged that plaintiff, and those for whom he sued, formed themselves into such association in 1866, and became the owners of the lot; that the deed for it was made to Tunstall in trust to hold for the benefit of that association; that in 1875 they desired to remove Tunstall and demanded possession of the premises from him, which he refused to deliver, and withheld the same from them; that in September, 1875, he made a lease of the property to his co-defendants, and he and they were in possession.

An amended petition averred that since the institution of the suit, the association for whose use the suit was brought had organized themselves under the statutes as a church congregation, and appointed as trustees for such church organization Monday, James and John Evans; that a certificate of their appointment had been filed and recorded in the county clerk's office; that the organization was composed of the same persons for whose use the suit was originally brought, and they prayed that the suit might be prosecuted to judgment in the name of the Missionary Baptist Church; that the property was conveyed to Tunstall for their use and occupation as a place of worship, but he now prevented them from using it and denied their right.

It is alleged that no particular or formal mode of organization has ever been adopted by the Baptists, or members of the congregation following that faith in the county; that the president of the meeting at which the church was organized was pastor of the church and signed the certificate of the appointment of trustees.

The defendants pleaded a general demurrer, and excepted specially--

1. That the petition did not show that the alleged association was incorporated.

2. That the issuance of a certificate signed by the president and secretary of the meeting was insufficient.

They also pleaded the general denial.

The general and special exceptions (after amendment filed) were overruled. The case was submitted to a jury, which found a general verdict for the Missionary Baptist Association in the town of Brazoria, and there was judgment thereon “that the Missionary Baptist Church of Brazoria” recover of the defendants the premises.

Defendants moved for a new trial on the ground--

1. That the court erred in overruling defendant's demurrers.

2. That the verdict did not support the judgment and was contrary to law and evidence.

The motion for a new trial was overruled and defendant Tunstall appealed.

Upon the trial it was proved that on the 18th of September, 1874, the pastor and trustees of the Methodist Episcopal Church conveyed to Tunstall, one of the trustees of the Missionary Baptist Church, the lot in controversy, to hold as trustee. This conveyance was duly authorized by resolution of the quarterly conference. Plaintiff read in evidence a certificate of a meeting held after notice to the members of the Missionary Baptist Church of Brazoria for organization and the election of trustees for that denomination. This certificate was signed Walter Wormley, president, Edward Hamilton, secretary, by whom it was acknowledged on the 28th of September, 1875, before the clerk of the county court, and it was recorded October 1, 1875.

Wormley testified that Tunstall bought the lot and invited witness and members of the Baptist Church to join him in obtaining subscriptions to build a church for their congregation on it. The church was built and used as a place of worship by the Baptist congregation of which Wormley and Tunstall were members. It was called the Missionary Baptist Church, but never legally organized until October, 1875. No form was adopted by the Baptist Church to organize under the law. Tunstall kept the key of the church. In 1877 the Methodists claimed the lot. Tunstall paid them twenty-five dollars, and took and accepted from them the deed to him as trustee. Witness was pastor of the Baptist Church and signed the certificate.

Kelsey testified that a short time before this suit was brought Tunstall locked the church against the congregation, and refused to allow them to worship as before. Tunstall declared, after receiving the deed from the Methodists, “that the difficulty was settled and the church belongs to us, ‘the Missionary Baptist Church.’ 'DD'

The defendant produced in evidence a deed to himself, Davis and Dickson, as trustees for the Methodist Episcopal Church (colored), from McMaster, dated in April, 1867, and for himself testified that he bought the lot in his own name; always claimed it as his own; never claimed it for any church, paid for it with his own money; paid Breese (the Methodist minister) the twenty-five dollars, but afterwards rented out the house and got his...