Zion Church of Evangelical Ass'n of North America in Charles City v. Parker

• Decision Date: 14 May 1901
• Citation: 86 N.W. 60,114 Iowa 1
• Parties: ZION CHURCH OF THE EVANGELICAL ASSOCIATION OF NORTH AMERICA IN CHARLES CITY, IOWA, AND THE TRUSTEES THEREOF AND THE IOWA CONFERENCE OF THE SAID ASSOCIATION, Appellees, v. J. W. PARKER, Sheriff of Floyd County, Iowa; JOHN KUCK AND WILLIAM BRANDAU, Appellants
• Court: Iowa Supreme Court

86 N.W. 60

114 Iowa 1

ZION CHURCH OF THE EVANGELICAL ASSOCIATION OF NORTH AMERICA IN CHARLES CITY, IOWA, AND THE TRUSTEES THEREOF AND THE IOWA CONFERENCE OF THE SAID ASSOCIATION, Appellees, v. J. W. PARKER, Sheriff of Floyd County, Iowa; JOHN KUCK AND WILLIAM BRANDAU, Appellants

Supreme Court of Iowa, Des Moines

May 14, 1901

Appeal from Floyd District Court.--HON. J. F. CLYDE, Judge.

SUIT in equity to enjoin the sale of certain church property under an execution issued on a judgment in favor of S. F. Farnham and against the Zion Church, which judgment was assigned to defendants Kuck and Brandau. The trial court granted the relief prayed, and defendants appeal.--Affirmed.

Decree AFFIRMED.

Robert Eggert and A. F. Reichmann for appellants.

Read & Read and E. B. Esher for appellees.

DEEMER J. SHERWIN, J., taking no part.

OPINION

DEEMER, J.

The Zion Church of Charles City is a mission church of the Iowa conference of the Evangelical Association of America, annexed to the Dubuque district, deriving support from and dependent on the conference. It was established in the year 1888 by the members of the local society, with the consent and approval of the conference. Plans for a church building were laid before the trustees of the conference, and they agreed to pay the local society $ 500, on condition that the said local society place no mortgage on the property, or incur no debt in its construction. The local society immediately proceeded to incorporate and to purchase real estate, to solicit subscriptions, and to construct a church on plans approved by the conference. By the articles of incorporation, "all conveyances of property to this association shall be deeded in trust that said property shall be used, kept, and maintained and disposed of for the use and benefit of the ministry and membership of the Evangelical Association of North America. Any real estate of said association held in trust for said Evangelical Association shall be sold and conveyed to the said trustees in the corporate name thereof when authorized to do so by the annual conference in whose bounds the real estate is situated." The deed conveying the real estate was to "the trustees of the Zion Church of the Evangelical Association of North America in Charles City, Iowa" in trust, to be kept, used, and maintained as a place of Divine worship by the ministry and membership of the Evangelical Association of North America and as a place of residence of the preachers of the Evangelical Association of North America who may from time to time be stationed at said place, with the power to dispose of and convey the same, subject to the discipline and usages of the said association, as from time to time authorized and declared by the general conference of the said association and by the annual conference within whose bounds the said premises are situated. The articles of incorporation further provide that "the trustees shall have the sole management of the property, subject to the present and any future provisions of the discipline and the provisions of the annual conference in whose bounds such property is situated." At the time the church was dedicated the trustees of the local society, including defendants Kuck and Brandau, secured subscriptions nearly sufficient to cover the indebtedness of the church. These subscription lists have been at all times, and are now, in the possession of said defendants. At the time they purchased the real estate, however, they borrowed the sum of $ 728, executing their notes therefor; and as work on the church building progressed they borrowed the sum of $ 1,500, executing like notes for the amount thereof. In the year 1890 these notes matured, and the holders thereof demanded their money. Having no money with which to meet these demands, it was decided by the local trustees to borrow enough money to meet all their obligations, and to give a mortgage on the church property as security therefor. Pursuant to the resolution they borrowed the sum required from S. F. Farnham, and made a mortgage on the church property to secure the same. When the loan matured, the local society failed to pay; and Farnham brought suit to foreclose his mortgage, and for judgment on his notes, against the Zion Church, the Iowa conference, and the local trustees. The Zion Church and the Iowa Conference filed answers in which they pleaded that the property was held in trust for the association, that the trustees had no authority to mortgage the same, and that the mortgage was void and of no effect. The local trustees practically confessed judgment on the notes. On these issues the foreclosure suit was tried, resulting in a decree finding the mortgage void and canceling the same of record, but rendering judgment against the Zion Church for the amount of the loan. Thereafter Farnham assigned his judgment to the defendants Kuck and Brandau. After the assignment was made, the assignees caused an execution to issue on the judgment, which was returned, "No property found." Thereafter Kuck and Brandau filed their petition against a large number of the members of the local society, asking judgment against them for the amount of their claim, reciting the return nulla bona on the execution. This case was tried to the court, resulting in the dismissal of their petition. Thereafter an alias execution was issued, which was levied on the church property in question, and the same was advertised for sale. This suit is to enjoin the sale under that execution. It is claimed, among other things, that the decree in the Farnham case is res adjudicata of the question presented on this appeal; that neither the legal nor the equitable title to the church property is in the Zion corporation, and therefore cannot be subjected to the payment of the Farnham judgment; that, in any event, the Zion Church is but the trustee of a charity, and that it has no interest in the property which is subject to levy and sale; and that on the whole case there can be no execution sale of the property. On the other side it is insisted that the local trustees were and are agents of the Evangelical Association of North America, and as such had power to contract debts in the erection of the church property that should be paid out of the property itself; that plaintiffs are estopped from asserting that the property cannot be subjected to the payment of the judgment, because they have accepted the benefit of the acts of their trustees, and must assume the burdens incurred by them; that defendants Kuck and Brandau are subrogated to all Farnham's rights growing out of his judgment; that the decree in the Farnham case is not res adjudicata; that plaintiffs are not the real parties in interest; that there is misjoinder and nonjoinder of proper parties; and that in any event defendants are entitled to make an equitable levy, and, if the pleadings do not warrant the giving of such relief, that the case be reversed and remanded for the purpose of allowing them to bring suit to subject the property to the payment of their judgment. Appellant's counsel do not agree as between themselves on the question of the right to sell the property on execution. One of them confesses that it cannot be done, while the other insists that it may.

Before going to the merits, we will dispose of the practice points argued in the briefs, and first the question of proper parties. Defendants contend that neither of the plaintiffs has any interest, title, or right to the property; that either the trustees or the beneficiaries described in the deed should have been made parties to the suit. This question is first made in this court, and for that reason, if for no other, cannot be considered. Coe v. Anderson, 92 Iowa 515, 61 N.W. 177; Pipe v. Bateman, 1 Iowa...