255 Mo. 570 | Mo. | 1914
Plaintiffs (as heirs of a group of church trustees, as presently appears) sue in the Au-drain Circuit Court in two counts, one in ejectment and one under former section 650 to quiet title — the property in dispute being lot one of block eighteen in the town of Mexico in Audrain county. There were two defendants, one was dismissed and the answer of the other, S. Margaretha R. Clark, is first a general denial, then she pleads her own title and follows that by a plea of the thirty-year Statute of Limitation, and title by limitation under the “general laws” of Missouri, averring, among other things, that ‘ ‘ she and those under whom she claims have been in the open, notorious, exclusive, actual and adverse possession of said land for forty years.” The prayer of her answer was that the court “adjudge and decree that she has the title to said land and that the defendants (sic) have no interest in said land, and are not entitled to the possession thereof.” (N. B.: Evidently “defendants” is a misprint for plaintiffs.)
The reply put at issue new matter.
On a trial to the court without a jury “all the issues” were found in favor of defendants (the clerk failing to note that one of the defendants had been dismissed) and the following judgment was rendered on that finding:
“It is therefore considered, ordered and adjudged by the court t' ^ Uaintiffs take nothing by their writ, and that defendants go hence without day, and have and recover of ,and from the plaintiffs, as well as George Pearson, surety on cost bond, the costs herein laid out and expended, and that execution issue therefor.”
It will be obsprved that though such finding would have supported a decree of title as prayed in defendant’s answer and in the second count of plaintiffs’ petition, yet the court stopped at the bare general finding and entered no affirmative decree ascertaining
Defendant asked no instructions. Plaintiffs asked two which were refused. If the facts entitled plaintiffs to recover then these instructions should have been given. Otherwise, otherwise. In that view of it the instructions need no further attention and will not be reproduced.
Attending to the facts, the ease is this: Many years ago in the first half of the last century the members of that great denomination in the United States looking to Roger Williams as its mentor and founder were much agitated by theological dogmas relating to the doctrines of election and predestination, some taking such an ultra-conservative view of those questions as precluded the wisdom of Sunday schools, missions, etc. They were known as Primitive Baptists. In some way they got the name of “Hardshells” which (given at the outset facetiously to indicate lack of expansiveness) has become, as not infrequently happens, an allowable historical name. [Vide tit., “Baptist,” Web.
In 1873, preparatory to a sale, and the acquisition of a new situs and building another meeting house, the grantor in the foregoing deed made a quitclaim of the lot to the same trustees in which the above conditions were referred to and the grantor formally by apt narration released the grantees- as trustees from them for an expressed nominal money consideration. Whether trustee Poage died, was removed or what became of him we do not know, but on a certain day in March, 1873, trustees Pearson and Ward, on behalf of the church, and one Dudley (who also executes as a trustee -of the Davis Fork Baptist Church) made a deed with general clauses of warranty to one Evans of part of lot eight, in block sixteen, in the town of Mexico. It is not clear what form of deed was made to the other part of the lot, but evidently it was sold and conveyed by the same trustees (leaving out Poage and including Dudley) at about the same time. As we make out, the
“I remember the property was sold down there about the time they built the new church. My brother bought part of it and my father paid for it. It was sold on credit. My brother bought some of it and I think my father went his security. I don’t think my father bought any, I am not sure; he might. If he bought any of the first tract from the trustees I do not know it, I don’t remember it at all. John Y. Pearson bought some of it and John A., my father, if he bought any I don’t know.
‘ ‘ The old church split up over the missionary cause, when they were worshipping at Hopewell, and my father and several others withdrew from that church and browsed around the best they could until they got able to build another one.”
So, too, we find that in August of that year, 1873, a report spread on the church record is made by a committee “appointed to sell the old meeting house and grounds and erect a new one,” which committee, on the coming in of that report, was discharged. That report shows the amount realized on the old house and lot (the whole lot) was $1,056.40. We will recur to this report again. Going back a little: Prior to that time, in March of that same year, one Barnett sold and conveyed to Pearson, Dudley and Ward, trustees for the Davis Pork Baptist Church, in consideration •of $300 paid, lot one in block eighteen of the town of Mexico (the land in dispute). This conveyance was in the form of a quitclaim deed. It had no condition precedent or subsequent, no clause of reverter, and its habendum ran to “said parties of the second part” (to-wit, Pearson, Dudley and Ward as trustees for the
As it is contended by appellants' that trustees Dudley, Ward and Pearson paid the consideration for the Barnett conveyance out of their own pockets and that it was never repaid to them, let us look to that. The testimony relied on to establish that ancient fact we will not reproduce for it is anything but certain, definite or cogent. Much of it is in the nature of hearsay, or inferences or conclusions. There is no attempt to show the whole transaction in its details. No records or books of account were introduced tending to show such fact. No witness who participated in the transaction as an actor testified to it as of his, personal' knowledge. The only bit of substantial evidence tending to show the payment fell from the lips of one of the sons of the original trustees named in the Barnett deed, Pearson, who saw his father count out $125 to pay for the lot and who testified that the lot was paid for sometime before the church had disposed of its old meeting house and grounds. He had seen, he says, an old contract in his father’s hands (which his father threw away as worthless) relating to such purchase, but we think the testimony conclusively shows that either at that time or shortly thereafter the Barnett lot was paid for out of the sale of the old grounds or subscriptions. We say so because in August, 1873-, at the time the sale and building committee was discharged, several significant things happened as shown by the church records, to-wit: Mr. Pearson, the very trustee whose son testified his father had paid $125 on the lot and who seems to have been chairman of the building committee and the chief manager, made a report to the congregation which purported to cover the whole matter of acquiring the new lot and building the new church and of disposing of the old church and
Coming to another phase of the case, the record shows that trustee Dudley died in 1875 while on the road to California to make a new home; that trustee Ward died in California in 1883, having become a resident of that State and that his estate was settled there. It shows furthermore that in 1880 he took a letter of “dismission” from the Davis Fork Baptist Church. Trustee Pearson died in 1880 while a member and trustee of the church.
Plaintiffs are the heirs and descendants of Dudley, Ward and Pearson, those trustees. They claim title by descent cast, as individuals and not as trustees.
As bearing further on Baptist church usages and customs, it is shown that in 1880 one McGee at a congregational meeting was dismissed as trustee and one Conger appointed; that in 1893 one Price was appointed at a like meeting to fill a vacancy in the trustees; that in 1898 by a like meeting one Palmer was elected trustee to fill a vacancy; that in 1899 one Huff was elected trustee in the same way to fill a vacancy; that in 1901 one McCully was elected in the same way to fill a vacancy caused by the resignation of Price, trustee; so in 1903 one Bradley was elected to fill a vacancy caused by the removal of Palmer and one Clark was chosen to fill a vacancy caused by the removal of Huff.
In 1905' the question of selling the property in dispute and buying another lot to build on was considered in a church meeting and a committee was appointed to investigate and report, but the matter seems to have ■fallen through and was not pursued at that time. In the course of time the church building, which was of brick and built in 1873, was out of repair and was, we infer, of little or no value. The lot, however, had become valuable for business purposes and the town was putting expenses upon the property for sidewalks, street pavements, etc. The membership of the church had dwindled by death, removals and dismissions, services were never abandoned but in- late years were sporadic and the society .as a factor in the moral amelioration of the town of Mexico had become a vanishing equation. So hard put to was the congregation that it became necessary in 1907 to borrow, by a deed of trust on the property, several hundred dollars to pay for paving the street in front of the lot. This trust deed was executed, as other church conveyances had been, by the then acting trustees on the vote of the members at a meeting of the society. Finally in March, 1909, at a meeting' of all the remaining members, resolutions were adopted, and spread of record, to the effect that the then trustees as successors of the original ones sell the property. Presently by a deed narrating those resolutions and pursuant thereto the
Over the objection of defendant, who had no part or parcel in the transaction, plaintiffs were allowed to show that the present members of the society known as the Davis Pork Regular Baptist Church divided the purchase price share and share alike among themselves. Defendant was. put in possession under her deed and on December 1,1909', the heirs of the trustees who originally took title instituted this suit with the result hitherto noted.
The whole trend of the testimony is to the effect that the trustees, as reorganized from time to time by filling vacancies by the vote of the meetings of the society, had continuous control of the church building and grounds, claimed title and held possession openly and adversely as of right for church purposes at all times since the original trustees severed their connection with the society by death or removal. It further tends to show that the plaintiffs or none of 'them at any time after the death or removal of their respective ancestors claimed any right of possession or title or exercised any acts of ownership' over the property until they brought this suit nearly thirty years after the last of the original trustees died. Plaintiffs made no attempt to show that anything in the usages, customs, constitution or by-laws of the Davis Pork Regular Baptist Church or any other Baptist congregation militated against appointing successors to trustees in case of death or removal, or against such acting trustees conveying on the vote authority and demand of the congregation interested. In this case, so far as the history of the title to any real estate of the Davis Pork Regular Baptist Church is
In view of such record we are of opinion that the judgment below must be affirmed. Because,:
I. Of adverse possession and limitations.
(a) It is contended for respondent that adverse possession and limitations are a complete defense-; contra for appellants that respondent having pleaded the thirty-year and not the ten-year statute, the facts do not bring the case within that of thirty years, hence that of ten years can not be invoked. Is there substance in that view? We think not, because:
Granted that respondent pleads the thirty-year statute of limitations and granted that the facts do not bring the case strictly within the purview of that statute, but looking further we find the answer also pleads title by limitations under the “general laws.” In that view of it if a plea were necessary the plea, scant as it is, is present. However, no- plea of the general (or any special) statute of limitations was necessary to invoke its aid in ejectment. Defendant may raise such defense under a general denial when such denial is present in the answer, as here. [Nelson v. Brodhack, 44 Mo. l. c. 600 et seq.; Coleman v. Drane, 116 Mo. 387; Stevenson v. Smith, 189 Mo. l. c. 466; Bird v. Sellers, 113 Mo. l. c. 587 et seq.; Collins v. Pease, 146 Mo. l. c. 139.]
If it were to be conceded to counsel that there was a plea of the thirty-year statute and none of any other, yet such concession would not avail them as a waiver of the ten-year statute in the face of the general denial, which raises the issue of itself in ejectment.
(b) There is a statute, section 1886, Revised Statutes 1909 (apparently borrowed from Vermont), which took effect August 1, 1866, reading:
*584 “Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State.”
It is argued for appellants that a proper construction of that statute precludes the defense of adverse possession. Is there substance in that view of it? We think not, because:
In ejectment a plaintiff must recover, if at all, on the strength of his own title, hence plaintiffs- must show a legal title in them or be east. Hence the question at this- stage is narrow, to-wit, whether appellants, if they ever had legal title, lost it by adverse possession and by the Statute of Limitations? Respondent’s counsel say if appellants ever had the bare legal title by descent cast from their ancestors, the original trustees (which they deny), they lost it to respondent’s grantors by adverse possession. Appellants in reply point to the foregoing statute and say it shuts out the contention. As to that we say: If actual trustees were suing to preserve a pious- or charitable use another question would be here. If appellants were suing and contending that as mere heirs of the original trustees a legal title was east upon them so that they stood charged in equity with a pious or charitable use for the members of the Davis- Fork Baptist Church as beneficiaries, then that feature would have to be considered in connection with the question of the form of the action and the other question whether they or the trustees appointed by the Davis Fork Baptist Church congregation were the “successors” of the original trustees and entitled to possession. But these appellants are not in court on any such theory or capacity. They sue in their own individual right on a bare legal title which they claim was cast upon them in their own individual right by descent as heirs of their ancestors. They ask no possession on behalf of the members of Davis Fork Baptist Church as bene
That the spirit of the law is the main tiling in good exposition, that the intent of the law is the life of the law, its soul, and that if courts do not seek that intent out.and enforce it they miss their prime and most august function are good doctrines. [Keeney v. McVoy, 206 Mo. l. c. 65 et seq.; Perry v. Strawbridge, 209 Mo. 621; State ex rel. Waller v. Trustees of William Jewell Colege, 234 Mo. l. c. 313 et seq.]
It was once the fashion in court and out to refer to statutes of limitations much the same way that polite folks now refer to their bowels, to-wit, only by way of derogation and complaint, but that day is long since over and gone and those statutes are now justly esteemed as highly salutary. [Wetmore v. Crouch, 188 Mo. l. c. 652 et seq.] To deny their aid in the acquisition of title by church organizations unless inexorably driven to .that conclusion by a statute di
(c) To defeat the force of the Statute of Limitations, appellants also invoke the doctrine that the statute, as between cestui que trust and trustee, does not run in favor of either (as against the other) in an express trust. But before that doctrine could be applied in their aid we would have to hold the relation existed and that appellants in the eye of the law were trustees of an express trust. That we are not willing to do on this record — nay more (as we have held) they do not sue in that capacity or right. Ever since the old case of Esau v. Jacob it has been allowed as just that the asking voice should really belong to the getting hand. Are we to hold they may ask possession as heirs in their individual right, and get possession as trustees¶ If so are they trustees by inheritance, trustees de facto, or de jure, trustees by Baptist usage or custom, trustees by contract, by implication, or by election (or predestination) or how? It would be to reject substance and deal with shadows to reason out a trusteeship for appellants on the facts before us. So, scattered to the four winds, they never met as trustees, or for one moment acted as such or in one instance claimed the right to do so. For nigh thirty years they, without lifting a finger of protest, saw others chosen to that function and filling it acceptably to the beneficiaries of the trust. In the face of such implied repudiation of the duties of trustees it is idle for them to masquerade in that name in suing for real estate they claim in their own right by inheritance as heirs. No respectable authority can be found for that position and I think none ever will be found so long as the law lays stress on reason, or runs on all-fours
So that if the facts show that appellants, by limitation lost their naked legal title, if any they had, to the actual trustees of the Davis Fork Regular Baptist Church (which question we take next) there is nothing in the pleadings, nothing in the foregoing statute or in the relation of trustee to cestui que trust in the way of the affirmance of the judgment.
(d) The record conclusively shows that the trustees selected from time to time by the members of the Davis Fork Regular Baptist Church were in possession of the real estate since 1880 when Pearson, the last resident original trustee, died. That the members of that church society shared permissively in the possession, as contemplated by the trust, in no way milir tates against the possession of the trustees or operates in favor of appellants. It was res inter alios acta as to them. That the possession of sudh trustees was continuous, open and adverse as to these appellants and the whole world save the church members, can not be gainsaid under the proof. They did not take or hold by appellants’ permission or in subordination to their rights. That it was peaceable and under a claim of right is plain enough.
Under the Constitution of 1865, art. 1, sec. 13, trustees for a religious society or congregation, though unincorporated, could hold title to church property. [Boyce v. Christian, 69 Mo. 492.] The case is a typical one for the application of the Statute of Limitations as against appellants and in favor of respondent’s grantors and we so rule. If,' then, appellants ever held a legal title it was lost to them.
It is not clear how the regularity of the several appointments of the successors to the original trustees is any concern of appellants who are nonmembers of the church or has anything to do with this phase of the case as suggested by them. But, if open to in
There are cases cited by respondent’s counsel from this court dealing with Baptist usages and the right of trustees to possession, holding reasoning and announcing conclusions supporting those reached in this paragraph. [Fulbright v. Higginbotham, 133 Mo. 668; Turpin v. Bagby, 138 Mo. 7.] And the curious may consult other cases cited by counsel buttressing the conclusions announced. [Christian Church of Sand Creek v. Church of Christ of Sand Creek, 219 Ill. 503; First Baptist Church of Sharon v. Harper, 191 Mass. 196.]
II. Of other questions raised.
There are nice questions discussed in briefs that will not be reached or ruled by us. For instance, it is suggested on one side and denied on the other:
(1) That the original trustees were trustees of a mere dry trust which was automatically executed by the statute of uses in favor of the church members, the beneficiaries, and that the legal and equitable title united in such beneficiaries in 1873' at the date of the Barnett deed.
(2) That the trustees paid their own funds to Barnett for the lot and were never reimbursed, hence the case of Draper v. Minor, 36 Mo. 290, controls the title and the right of succession. (Note: That phase of the matter has been considered in the opinion. The Draper case has never been cited as an authority from that day to this and we must not be considered as approving or disapproving it.)
(4) That the original trustees took a life estate only.
(5) That trustees as such can have no heirs.
The case having broken on the Statute of Limitations, and appellants having lost any legal title they ever had, it is not necessary for us to say whether they really had any by descent cast as heirs, or pass on the strength of respondent’s title or on any other question outlined above. They are reserved for decision in some case riding off on them; for, as put in the opera, like “The flowers that bloom in the spring,” they “have nothing to do with the case,” as presented in this record and disclosed by the form of the judgment.
Let the judgment be affirmed. It is so ordered.