40 Kan. 271 | Kan. | 1888
Lead Opinion
Opinion by
Plaintiffs in error now insist that there was error in the proceedings below: First, that the plaintiffs had no right to bring this action; second, that this property was held by the plaintiff in error, the bishop of the diocese of Leavenworth; that, under the rules and regulations of the Catholic church, all property is held by the bishop for the benefit of the Catholic church at large; that he had the right to sell and control the same at his pleasure, and that, having disposed of the property as he saw fit, the plaintiffs had no right to complain of his action in this sale; and third, that the evidence failed to show that the defendant took the title to the land as a trust for the Kock Creek congregation, and that no trust can be created as claimed unless some contract creating the same be in writing.
Section 38 of the code of civil procedure provides that —
“When the question is one of common or general interest to many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”
The question whether or not this land was conveyed with the express understanding that it was to be held in trust for the Rock Creek congregation, was a question of fact which was submitted to the court, and upon that issue testimony was given to the court by the parties who conveyed the land in the first instance to the bishop; the testimony of the bishop as to his information about the same; and the testimony of a number of the congregation in respect to what purposes the land was intended to be used for; and upon-these questions of fact the court found in favor of the plaintiffs and against the defendants. This finding is conclusive. The evidence clearly shows that at the time this land was purchased the priest in charge visited a great number of his parishioners and conversed with them in relation to buying the property. He held out the inducement to them that it would enable them to maintain a church and a priest, and aid them in school purposes, and by this farm thus acquired they would be better able to maintain their church; and with this understanding the property was bought. It was conveyed to the bishop, as all property owned by a congregation not incorporated is, in accordance with the usage of the Catholic church. The evidence was clear that this was the understanding of the people who contributed to its purchase and to its improvement, and the claim that it was conveyed to the bishop to do with and dispose of as he saw fit, was an afterthought, and not a part of the original agreement.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
Concurrence Opinion
Upon the view that the land in question
If, however, it had been established upon the trial that the title to the property was conveyed with the understanding between the parties that, by the usages and customs of the Catholic church, it was vested in the bishop in trust to be used for church purposes generally, as his own judgment might determine, the judgment of the trial court could not be sustained.