Vaughn v. Pansey Friendship Primitive Baptist Church

• Decision Date: 23 June 1949
• Docket Number: 4 Div. 503.
• Citation: 41 So.2d 403,252 Ala. 439
• Parties: VAUGHN et ux. v. PANSEY FRIENDSHIP PRIMITIVE BAPTIST CHURCH et al.
• Court: Alabama Supreme Court

41 So.2d 403

252 Ala. 439

VAUGHN et ux. v. PANSEY FRIENDSHIP PRIMITIVE BAPTIST CHURCH et al.

4 Div. 503.

Supreme Court of Alabama

June 23, 1949

Oscar L. Tompkins, of Dothan, for appellants.

J Hubert Farmer, of Dothan, for appellee.

LIVINGSTON Justice.

This appeal is from separate decrees overruling appellants' separate demurrers to appellees' bill of complaint as amended.

The bill in substance avers that the Pansey Friendship Primitive Baptist Church has existed as a church of the Primitive Baptist faith and order continuously from the year 1894 to the present time; that a church building or house of worship was constructed by and for said church on a lot of land about one acre in area, describing it; that thereafter, on or about the month of April, 1905, said church acquired by deed from one Tom Howard one acre, more or less, adjoining the land on which the church was erected; that respondents, J. W. Vaughn and Maggie Vaughn, are husband and wife; that Maggie Vaughn is said to own lands adjoining the church property; that said church has been in possession of and used the Howard land as a part of its church grounds since the date of its acquisition until sometime in the year 1946, at which time the respondent J. W. Vaughn constructed or caused to be constructed a fence across said church ground fencing off from the church building and the other church property the one acre acquired from Howard,--the same being done without the knowledge or consent of said church; and that respondents have been in the possession of said Howard acre since it was fenced off, and although requested to do so have refused to remove said fence or restore possession of said land to said church.

Appellees pray for a mandatory injunction requiring respondents to remove the fence, a permanent injunction restraining respondents from further trespassing on said church property and damages for the alleged cutting of certain trees by respondents.

The bill of complaint as amended consists of paragraphs 1, 2, A B and C. Each respondent addressed demurrers to the bill as a whole; and further they treat paragraphs A, B and C as separate aspects of the bill and direct their separate demurrer to each aspect, separately and severally.

Whether or not a bill is single in scope and purpose or presents a case in more than one aspect must be determined from its allegations of fact. And when complainant's bill presents a state of facts entitling him to equitable relief, relating to the same subject-matter and dealings between the same parties, single in its scope and purpose, it cannot be divided up into separate aspects by the manner in which respondents address their demurrers thereto. Smith-Howard Gin Co. v. Ogletree, 251 Ala. 366, 37 So.2d 507.

This bill is single in its scope and purpose and, therefore, the demurrers filed go to the sufficiency of the bill as a whole. Smith-Howard Gin Co. v. Ogletree, supra.

The only serious question raised by demurrer is whether or not appellees have an adequate remedy at law.

An unincorporated association has the power to sue and be sued at law. Section 142, Title 7, Code. Such an association, however, is without capacity to acquire and hold legal title to real property. Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211; Street v. Pitts, 238 Ala. 531, 192 So. 258; Darby et al. v. Jones, 249 Ala. 104, 29 So.2d 879. This disability alone would prevent the association from maintaining an action of ejectment.

As we construe the bill its purpose and theory is to involve a well recognized phase of equity jurisdiction--the prevention of the diversion of property from devotion to a lawful trust. This Court has consistently held that equity courts will lend aid to protect and preserve charitable and religious trust properties. Carter v. Balfour's Adm'r, 19 Ala. 814; Williams v. Pearson, 38 Ala....