Wade v. Hancock

Decision Date13 September 1882
Citation76 Va. 620
CourtVirginia Supreme Court

Error to judgment of circuit court of Floyd county in a proceeding by Peter L. Hancock and John T. Agee agains Isaac Wade, John Wade, and Josiah Bryant. Opinion states the case. Argued at Wytheville, but decided at Staunton.

John E. Penn, for the appellants.

1. Appellees had no right to proceed under Code 1873, ch. 76, § 9, as they were not " the proper authorities of the congregation," but only volunteers.

2. That section was not intended to apply to cases like this; but, if so intended, it violates bill of rights, § 18.

3. That portion of the orders complained of, which directs how the trustees shall administer their trust, was coram non judice, and null.

A A. Phlegar, for the appellees.

1. Appellants accepted the trust under the order of November 1881, with its conditions, and were bound by it.

2. Refusal to obey that order was a contempt of court, which might be brought to its notice by anybody.

3. The order appealed from only explains the prior order.

4. Appellees and their associates acted " in conformity with the discipline of the church," and consequently were the proper authorities to proceed under Code 1873, ch 76, § 9.

5. The case presents no question of violation of religious liberty asserted by bill of rights. It is simply, Can a majority of the members of a church, who have violated no rule of discipline, be debarred from worshiping in the church by the mandate of a minority?



I am of opinion that the judgment of the circuit court, rendered on the 6th day of May, 1882, and brought here for review by writ of error, is erroneous. It is erroneous because void, and void because the court had no jurisdiction to render it. And for the same reason (the want of jurisdiction) the previous order, made at the November term, 1881, the validity of which is collaterally drawn in question, is also erroneous and void in part.

On the 14th day of September, 1848, several persons, by deed of that date, conveyed two and one-fourth acres of land in Floyd county to David N. Howell and Samuel Agnew, describing them as " trustees of the Primitive Church of West Fork, in the county of Floyd," " upon trust (as declared) that the said David N. Howell and Samuel Agnew shall permit the church aforesaid to enter thereon, build and construct a house upon the same, and such house use and occupy at will and pleasure for divine service and public worship until said church wholly neglect and refuse to occupy the same."

The use of the church building, erected under the provisions of this deed, is the subject of controversy in this cause. It appears that there is a division of the Primitive Church of West Fork, an independent local ecclesiastical organization, into two parties, the division growing out of the severance, or attempted severance, of the church from the Smith's River Association, with which it had connection--a connection which it had the right to make and dissolve at will--one party, with Elder Tuggle at its head, claiming to be the true church, or " the church in order," as it is expressed; and the other party, headed by Elder Dodd, making a similar pretension, and each claiming the exclusive use of the building. The original trustees being dead, the Tuggle party, represented by the plaintiffs in error, made a motion in the circuit court of Floyd for the appointment of new trustees, and the motion was resisted by Hancock and Agee (the defendants in error), acting in the interest of the other party, as it would seem.

Upon the hearing of the motion, the court made the order before mentioned, November, 1881, which is as follows:

" This day came the parties by their attorneys, and the court, having heard the testimony, is of opinion and doth appoint Isaac Wade, John Wade, Sr., and Joseph Bryant trustees of West Fork Primitive Church, in this county, in place of Samuel Agnew and David N. Howell deceased; but the court being of opinion from the evidence that there is a division among the church members of said church, some of whom have or wished to withdraw from Smith's River Association, and some of whom desire to adhere to said association, it is ordered that said trustees hold the said church property for all the members of said church, including both factions, until the church authority decides the question at issue between them."

No exception was taken to this order by either party, and the evidence on the hearing of the motion is not in the record.

Subsequently, at the May term, 1882, of the court, Hancock and Agee (the defendants in the former motion), upon notice in writing previously given, made a motion to " attach, fine and imprison" Wade and others, who had been appointed trustees by the former order, for alleged disobedience of that order in excluding from the church building those members of the church desiring to remain with the Smith River Association, and also to remove said trustees and appoint others.

It was on the hearing of this motion that the order complained of was entered. The order, after reciting that no contempt of court was designed, proceeds as follows: " It is considered by the court that no fine will be imposed on the trustees at this time, but they are directed to hold the church property equally for the use of that division of the church composed of persons who were members of the church on the Saturday before the third Sunday in September, 1881, and now desire to remain with Smith River Association; and that division of the church composed of persons who were members of the church on the Saturday before the third Sunday in September, 1881, and now desire to separate from said association, until such time as a vote shall be taken, certified to, and acted on by the court, as is provided for in § 9, ch. 76, Code of 1873. And it appearing from the evidence that the faction desiring to separate from said association have selected the Saturday before the third Sunday in each month as the first day of their regular meetings, and that the other faction have selected the Saturday before the second Sunday in each month for the first day of their regular meetings, it is ordered that the trustees respect such an arrangement, and that they allow to either faction the use of the building at such other times as it may be desired for divine service, and does not conflict with previous appointments by the others."

It ts admitted on all sides that the sole authority for this order, as well as that of the November term, 1881, is to be found in § 9, ch. 76, Code of 1873. The previous section (8) allows a conveyance of land for the use or benefit of any religious congregation as a place for public worship, &amp c., & c. Section 9, so far as it relates to the question of jurisdiction...

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    ...non judice. Freeman on Judgment (5th Ed.) § 354; Black on Judgments (2d Ed.) § 242, also § 171 and § 215; 33 C. J. p. 1076; Wade v. Hancock, 76 Va. 620, 624-626; Anthony v. Kasey, 83 Va. 338, 5 S. E. 176, 5 Am. St. Rep. 277; Barnes v. American Fert. Co., 144 Va. 692, 707, 130 S. E. 902; Big......
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