U.S. Nat. Bank of Portland v. Guiss

• Decision Date: 13 November 1958
• Citation: 214 Or. 563,331 P.2d 865
• Parties: UNITED STATES NATIONAL BANK OF PORTLAND, Oregon, as executor of the will of Frank W. Settlemier, deceased, * Respondent, v. Dell GUISS et al. (Heirs of J. H. Settlemier, deceased), Appellants, Woodburn Lodge 106 et al., Respondents.
• Court: Oregon Supreme Court

Page 865

331 P.2d 865

214 Or. 563

UNITED STATES NATIONAL BANK OF PORTLAND, Oregon, as executor of the will of Frank W. Settlemier, deceased, ^* Respondent, v. Dell GUISS et al. (Heirs of J. H. Settlemier, deceased), Appellants, Woodburn Lodge 106 et al., Respondents.

Supreme Court of Oregon, Department 1.

Argued and submitted March 12, 1958.

Decided Nov. 13, 1958.

D. A. Norton, Portland, and Cecil H. Quesseth, Salem, argued the cause and filed a brief for appellants.

Irving D. Brown, Woodburn, argued the cause and filed a brief for respondent United States National Bank of Portland, Oregon, and Harold A. Eichsteadt, Woodburn, and Walter C. Winslow, Salem, argued the cause and filed a brief for respondent Woodburn Lodge 106 et al.

Before PERRY, C. J., and WARNER, McALLISTER and SLOAN, JJ.

WARNER, Justice.

This is a suit for a declaratory judgment. It seeks a construction of three instruments relating to the title of property described as Lot 4, in Block 3, of Woodburn, Oregon. These consist of a deed dated 1912, a deed dated 1921, and a provision in the will of F. W. Settlemier, deceased.

The defendants appellant, Dell Guiss and fourteen other persons named, are the only heirs of J. H. Settlemier, deceased, and together are hereinafter called the 'Heirs.'

J. H. Settlemier died on February 20, 1913. His son, F. W. Settlemier, died testate on September 16, 1951. The plaintiff respondent U. S. National Bank appears as the executor of the will of F. W. Settlemier, deceased.

The defendants respondent Woodburn Lodge 106 AF&AM, Evergreen Chapter No. 41, Order of Eastern Star, Woodburn Chapter No. 29 Royal Arch Masons, and St. Elmo Commandery No. 20, Knights Templar are various Masonic unincorporated bodies or associations which use and occupy the subject premises. They are here impleaded by making certain named individuals as representatives or officers of the respective fraternal bodies parties defendant.

Woodburn Lodge No. 106 is the body having the greatest interest in this matter. It is the organization through which the business relations concerning the subject property were in the main conducted. We will hereinafter refer to this fraternal group as the 'Lodge,' and when speaking of the four fraternal organizations, collectively, as the 'Lodges.'

It is the contention of the Lodge that it acquired fee simple title to the property under the 1912 deed by payment of the indebtedness therein stipulated.

The Heirs assert that the Lodge defaulted in the conditions of the 1912 deed and by reason thereof, the property reverted to them as the heirs of the grantor, J. H. Settlemier.

The Heirs appeal from the decree which confirms title to said premises and the whole of the building located thereon in Woodburn Lodge 106, AF&AM, subject to such interests as the three other defendant Lodges may have acquired therein by virtue of the 1921 deed.

As a logical incident to the holding made with respect to the title, the bank, as executor of F. W. Settlemier's will, was directed to render an accounting to the Lodge of all income received by it as rentals or otherwise from occupants from the date of its appointment, and after deducting charges made against the property, to surrender the balance to the Lodge. The executor does not appeal from the decree or any part thereof.

Our conclusion makes it unnecessary to give any attention to the will of F. W. Settlemier.

Before entering upon an examination of the arguments advanced by the Heirs, it is well that we first glimpse some of the history which preceded the execution of the 1912 deed, as well as after that date. All counsel engaged in this litigation have labored industriously to bring to the court's attention what is apparently every bit of evidence available to complete the complex story concerning this property from 1902 up to and including 1921. All of it is essential to an understanding sufficient to warrant the findings and conclusions which follow.

Long prior to 1912, indeed, as far back as October, 1902, the Lodge became interested in acquiring a meeting hall of its own. It appointed a committee to find a location and ascertain the cost of such project. On December 18, 1905, the Lodge minutes recite that after the committee had made its verbal report: '* * * Bro. J. H. Settlemier tendered a deed for Lot 4 in Block 3 amid much enthusiasm. Same was accepted and it was ordered that a vote of thanks be sent Bro. J. H. Settlemier * * *.'

There is no record that such a deed was then or after delivered, or, if delivered, that it was ever recorded. No claim, however, is made by any of the parties concerning that deed, or promise of a deed, as the case may be. We here point to the Lodge minutes of December 18, 1905, for two reasons only: First, to establish a beginning date of the Lodge's interest in constructing a building of its own, and secondly, to record Mr. J. H. Settlemier's early association with, and deep interest in, the success of the Lodge's ambition and his own intentions in aiding in its realization.

For reasons unknown, the matter of a Lodge building was not crowded. It apparently lay dormant for four years. At least we do not hear of it again until December 20, 1909, when the Lodge appointed another committee consisting of F. W. Settlemier, J. H. Settlemier, and J. M. Poorman, cashier of the local bank. Porman acted as the committee's secretary-treasurer. This committee was directed 'to investigate the cost of a suitable Masonic Hall building and to find out if the same could be rented for store rooms or otherwise on the first floor and also to see if the money could be obtained should be Lodge decide to build such a building * * *.'

On April 18, 1910, this building committee, as shown by the Lodge minutes of that date, reported that 'plans and specifications had been obtained and perfected and that further action by the Lodge was now necessary in order to take advantage of the offer of lot for building purposes * * *.' (Emphasis ours.)

The committee, therefore temporary, was, on the same date, 'made a permanent committee with full power to act * * *.' (Emphasis ours.) It embarked upon its duties with alacrity, and, so far as the record reveals, without interference or direction from the Lodge. This committee was never discharged and continued up to the Fall of 1912 to collect and apply rents in the Lodge's behalf.

The new building, a two-story brick structure with rental units for business purposes on the first floor, was completed late in 1910 and the Lodge moved into its quarters on the second floor in December of that year. The building, it was reported, had cost over $20,000. At that time (December 19, 1910), the Lodge had reason to believe that the title to the lot had been transferred to the Lodge in accordance with J. H. Settlemier's tender of deed reported in the minutes of December 19, 1905. Some support for this belief is disclosed by the fact that during the years 1910 and 1911, for the purpose of local assessments for street improvements, the property was carried on the official town rolls as owned by the Lodge, and during those years the Lodge paid street assessments aggregating $659.12.

On April 17, 1911, about four months after the Lodge moved into its new quarters, its building committee made a written report, signed by F. W. Settlemier and J. M. Poorman. This disclosed that the total cost of the new building was $23,276.49, derived from moneys which the committee had borrowed from the Bank of Woodburn on their own credit. The report commended to the Lodge's attention consideration of some plan for its orderly liquidation, adding: '* * * We think this can be done if the Lodge will be economical * * *.' We have little doubt that the committee had in mind the use of building rentals for that purpose. Such is to be inferred from the nature of the committee's report filed in 1913.

The last report of the building committee available in the record in this matter, and probably the last report of its kind, was filed May 5, 1913, showing rentals collected during the year 1912, and as to one renter, the payments it made to April 1, 1913. This reveals a total income of $4,005 with disbursements for insurance, interest on the building indebtedness, taxes, and items for maintenance in the same amount. Attached to it is a financial statement showing assets valued at $29,010. This includes a value of $26,970 for the lot and building.

The next event of importance is reported in the Lodge minutes of February 19, 1912, where it is recorded that on motion a committee was appointed to draw a resolution 'thanking Bro. J. H. Settlemier for his most liberal donation to this Lodge of the ground upon which this Temple now stands.' The committee presented a resolution which was a glowing tribute to the senior Settlemier for his generosity, and it was unanimously adopted by the membership.

We also observe at this point that F. W. Settlemier, in 1905, when his father tendered the deed, reported in the minutes of December, 1905, was the secretary of the Lodge and continued to occupy that office in 1906 and 1907. Presumptively, he authored the Lodge minutes for those years and as part of the established duties of the secretary of Lodge 106 received and was custodian of all the Lodge records and documents. In the years 1909 to 1912, inclusive, he occupied the highest office in the Lodge, that of Worshipful Master, and was necessarily cognizant of what transpired in the Lodge Halls during those four years. That would include, among other things, the report of the building committee made in 1911, and the resolution adopted in February of 1912, lauding his father for 'his most liberal donation to this Lodge of the ground upon which this Temple now stands.' We think it is a fair inference that a presiding officer of the Lodge F. W. Settlemier appointed the committee which framed that resolution. It is a circumstances not without significance....