Andrews v. Sercombe

162 P. 836 | Or. | 1917

Opinion by

Mr. Chief Justice McBride.

1. There was no defect in the title to the 5-acre tract. The title, so far as it pertains to this case, is as follows: In 1872 Jeremiah True and wife conveyed the 5-acre tract to James Thornton, A. H. Boothby, S. L. Powell, J. W. Dollarhide and David Doty, as trustees of the Church of the United Brethren in Christ of Bogue Biver Mission, and to their successors in interest. It does not appear what was done with the property, but on July 4,1908, it was reported to the annual conference as abandoned church property; and thereupon the “trustees of abandoned church property” were directed to sell the same, and in pursuance of such direction conveyed it to the plaintiff in this action by deed executed July 8, 1908. It was contended that the trustees had no authority to make this conveyance by reason of the fact that they had not become incorporated, under the provisions of Sections 7177, 7178, L. O. L. We think this position is not well taken. Said sections are not mandatory, but permissive; and, in the absence of any statute to the contrary, the discipline and laws of the church will control as to the manner of acquiring and alienating property. Referring to the discipline of the church, we find the following :

“No board of trustees shall begin the building of a churchhouse or parsonage without first submitting their plans and estimates of lot, or lots, and building, to the official board or quarterly conference for consideration, approval, and directions. Nor shall they proceed to buy or build without first procuring an incorporation of their board, such as the state requires, nor without securing and recording a warranty deed, the blank form prepared by the Church-Erection Society, to themselves and their successors in office for the real estate which they purchase, nor until they have the necessary means either in hand or sufficiently assured, thus securing harmony of action and avoiding the incumbering of our houses of worship and parsonages with embarrassing debts.”

As to the conveyance of property, among others, we find these provisions:

“When a house of worship outside of the jurisdiction of any quarterly conference ceases to be used by our own people for preaching or other religious purposes, it shall be the duty of the presiding elder of the district in which such house is located to report to the annual conference, which body shall have power to appoint a board of trustees, who shall rent, lease, or sell such house of worship, as they deem advisable, and report their proceedings to the annual conference, which body shall have power to use the proceeds to pay debts on other houses of worship, build new houses, or turn the money into the funds of the Church-Erection Society, as may seem proper, at its own discretion; provided, that in no ease shall a churchhouse and its premises be sold without the consent of the annual conference within whose bounds it is located. Should any parsonage be permanently abandoned as such, the presiding elder of the district in which such parsonage is located shall report the same to the annual conference, which body shall have power to appoint a board of trustees, who shall rent or sell such parsonage, and pay over the proceeds to the annual conference, which body shall expend the same in paying debts on other parsonages, or in building new ones within its borders. * * Beal estate held for church or parsonage purposes shall be subject to the same regulations as houses of worship and parsonages.”

The evidence indicates that the conveyance was made strictly in accord with the rules and discipline of the church, and the title to this 5 acres is perfect: Nelson v. Monitor Cong. Church, 74 Or. 162 (145 Pac. 37).

2. The testimony does not show clearly any material shortage in the land or any fraudulent misrepresentation as to the acreage, although it is possible that there is a trifle less than 32 acres. The land is described in the contract:

“Commencing at a point on the south line of D. L. C. No. 47, in township 38 south, range 2 west of the W. M., said point being five (5) chains west of the southeast corner of said D. L. C. and from said point running thence west 8.43 chains to the east line of lot five (5); thence south 8.24 chains; thence east 24.92 chains to the county road; thence along said county road as follows: North 31 degrees 29' west 4.325 chains; thence north 8 degrees 12' west 10.395 chains; thence north 61 degrees 27' west 2.01 chains; thence north 69 degrees west 6 chains; thence north 70 links to a point on the north side of said road; thence west 5 chains; thence south 10 chains to the point of beginning, containing 32 acres, more or less.”

Beyond this estimate in the contract there is nothing to indicate that plaintiff was guilty of any misrepresentation as to the acreage, and, indeed, no fraud or misrepresentation is claimed. It will be noted that in the contract the description of the land is by metes and bounds followed by the statement, “containing 32 acres more or less.” “The plain and most obvious meaning of the expression ‘more or less’ is that the parties were to run the risk of gain or loss as there might happen to be an excess or deficiency in the estimated quantity”: 5 Words and Phrases, 4583, citing Harrison v. Talbot, 32 Ky. (2 Dana) 258; Jones v. Plater, 2 Gill (Md.), 125 (41 Am. Dec. 408).

The decree of the Circuit Court is affirmed.

Affirmed.