Franke v. Mann

106 Wis. 118 | Wis. | 1900

Maeshall, J.

Thirty-six exceptions were filed to the findings of fact, but counsel for appellants made no specific assignment of error in regard to such findings in accordance with the rules and settled practice of the court. We find in counsels’ brief a statement of their claim in a general way, and a statement that the court erred in so far as the findings and conclusions of law are inconsistent with such view, and on that we are referred to the pages of the printed case where the findings and conclusions of law may be found, and in like manner to the exceptions thereto, particularly to twelve of such exceptions by their numbers. No attempt was made by counsel in their brief to point out evidence that is contrary to the findings or want of evidence to support them, but it is suggested that we carefully study the printed case of 143 pages, with a view of discovering whether any of the exceptions were well taken or not. With such a presentation of the appeal, judicial duty requires only a sufficient examination of the case to determine whether the findings and pleadings support the judgment. Error is presumed against on appeal, and unless, as to the facts at least, that is met by some distinct assignment of error or errors, and some attempt to discuss such assignments and to point out evidence or want of evidence to warrant them or some of them, it will prevail. The general rule is that a judgment on appeal will be affirmed, unless prejudicial error not only exist, but be made to affirmatively appear. Eaton v. Patchin, 20 Wis. 485; Milwaukee H. Co. v. Teasdale, 91 Wis. 59; Menz v. Beebe, 102 Wis. 342; Alexander v. Irwin, 20 Neb. 204; Pottawattamie Co. v. Marshall Co. 56 Iowa, 410; McVey v. Johnson, 75 Iowa, 165; Papke v. Papke, 30 Minn. 260. That rule means more than that error may be discovered in the record. It requires that the person alleging error must point it out and make it affirmatively appear in accordance with the rules and practice of the court. That requires error to be definitely assigned and a good-faith attempt made to present it to the court for consideration; and where the claim is that a finding of fact is contrary to the evidence, that the evidence, or want of evidence, bearing on the question, be brought to the attention of the court.

From the foregoing it is plain that this court would be justified in disregarding all contentions of the appellants’ counsel that the findings of fact are contrary to the evidence. However, the labor put upon the case indicates so clearly that the appeal was taken in good faith, and that the omission to comply with the rules and practice governing the matter was not intentional, that the neglect may be easily excused in the interest of justice, particularly to the parties whose rights are involved. That has been done, and the record examined carefully, and with more labor than would have been necessary had the evidence or want of evidence relied upon been definitely pointed out.

We are unable to discover any substantial conflict in the evidence on many of the material points, and no clear preponderance of evidence against any of the facts found. The evidence appears to be all one way that the church corporation was formed for the purposes of a religious sect known as the “ German Evangelical Church,” under the jurisdiction and subject to the government of the established body of that church in this country, and in the Wisconsin district thereof, known as the Gentian Evangelical Synod of North America; that such sect has distinguishing characteristics of a material character, wherein it differs from all other churches, particularly from the German Lutheran Church, both as regards religious belief and church organization and government; that the land upon which the church edifice was constructed was deeded to the corporation in trust for its use in harmony with the purposes of the organization and none other; that the edifice was erected and paid for with the same view, and that it was dedicated to religious uses according to the religious belief, customs, and government of the German Evangelical Church, particularly of the synod of such church of North America; that the church society was conducted and its property used in strict harmony with the purposes of its organization till a short time before the commencement of this action; that the defendants perverted the property of the society to purposes foreign to the legitimate use thereof, and that there was no peaceable way of redressing the wrong to the corporation and the minority of its members, except by invoking the power of the court.

It is said that when the deed of the land on which the church edifice stands was delivered to the society j the grantor promised that it should be free, except to Roman Catholics, and that subscriptions were made to aid in the construction of the edifice with the same view. Further, that the persons who organized the church society were not members of the German Evangelical Church, but were members of the German Lutheran Church. We fail to find evidence in the record to sustain such claims. True, as the court .found, there was some talk by members of the church society respecting the church edifice being free to all sects except Roman Catholics, but the deed was in fact made and delivered to the society for the purposes of its organization, indi-catecl in. its articles of organization, and the society accepted it for that use. That fixed the status of the property irrevocably, as regards the power of the corporation over it, acting by defendants, whether by the will of a part or all of its members. Fadness v. Braunborg, 73 Wis. 257; McBride v. Porter, 17 Iowa, 203; Sutter v. Trustees, 42 Pa. St. 503; Lawson v. Kolbenson, 61 Ill. 405. The rule in that regard, as it prevails generally, was stated in McBride v. Porter, supra, in the following language: “The grantees take the title thereof subject to this limitation, and it is not in the rightful power of the minority, or of the majority, or even of the whole congregation, to divert the property from the use and trust for and with which it was conveyed. The parties receiving the title take the same for control, and it is peculiarly within the province of a- court of equity to enforce the trust, and, in its enforcement, the court will look to the trust specified and intended, and must disregard all questions as to majority or as to religious creed and belief except so far as shall be necessary to ascertain the trust intended and the application of the property accordingly.”

It is further suggested that no notice was given of the purpose to organize a church corporation May 13,1888, when the articles of organization were signed, as required by •sec. 1990, R. S. 1878; hence that such articles are void, and the findings of fact inconsistent with that view contrary to the evidence. To that there are at least two conclusive answers. Where incorporators are not members of a religious organization, but desire to organize a corporation in •connection with a church of their own peculiar tenets to be associated therewith, no notice of an intent to so organize, or the time or place of forming the organization, is necessary. Such were the circumstances under which the society in question was organized, according to findings supported by evidence. But waiving that, there was a statute permitting the formation of such a corporation, an attempt in .good faith to comply therewith, and articles were drawn, ■and signed in form as the statute required, except as to the acknowledgment. They were recorded, the corporation was ■organized, and the right to exercise the franchise of being a corporation asserted, and such, franchise in good faith, used, all the persons who are parties to this action concurring, except defendant Schlicting, for several years. Such circura-.stances created a corporation de facto at least, which is .sufficient for the purposes of this case. Bergeron v. Hobbs, 96 Wis. 644; Slocum v. Head, 105 Wis. 131.

It is further contended, as a reason why the finding of "fact, to the effect that a corporation of the German Evan.gelical Church of the Synod of North America was organized by and pursuant to the articles signed May 13, 1888, is contrary to the evidence, that such was not the intention of those who participated in what occurred at the time. There .seems to be but very little room, if any, for controversy on that point. The person who drew the articles of organization, and under whose direction they were signed, was a minister of the denomination of Christians known as the ■German Evangelical Church, and a minister of the synod of .such church for North America. He framed such articles for the purpose of forming a corporation of his church, and in harmony with the wishes of those who signed them. 'There is ample evidence as to that. The articles were signed .at a meeting at which substantially all who had been accustomed to meet in Wayne to listen to religious teaching •of the German Evangelical Church were present. The minister read the articles and explained them, and did likewise with the rules of the church. There is no sufficient ■evidence to rebut the presumption that all the signers of the •articles knew what they contained. In them is the following language: “ The undersigned, . . . and those who •are or may become associated with them for the purposes herein specified, have organized themselves into a religious society of the German Evangelical Synod of North America,, located in the town of Wayne, county of La Eayette, state of Wisconsin.” There is no mistaking the meaning of such language.

The contention that the deed of the land on which the church stands was made for the use of a free church, barring only Homan Catholics, and that the finding is contrary to the evidence on that point, is quite as infirm in its supports as the claim in regard to the intent of the incorporators to form a society of the German Evangelical Synod of North America. As before indicated, the language of the deed vests the title to the property in the grantees for church purposes, meaning, obviously, such church purposes as the society was organized for. That read into the instrument, in effect, the words “ as a religious society of the German Evangelical Synod of North America.” If we look to the circumstances under which the deed was executed, the fair preponderance of the evidence is that the grantor and the grantees intended that the property should be devoted exclusively to the purposes for which the church corporation was organized; that is, the purposes of a society of the German Evangelical Synod of North America. Before the deed was drawn the grantor, with several members of the church, took advice as to how it should be worded, particularly as to the grantees, having present at the time the articles of organization of the society. The grantor testified that he made no promise before the deed was delivered, except to give the land to the society. When the deed was delivered it was read carefully, a large number of the members of the society being present, and there was evidence that it was afterwards read publicly in church and was fully approved.

We will not further discuss the evidence, but close this branch of the case by saying that a careful reading of the record leads to a satisfactory conclusion that all of the findings, to the effect that the property in question is held by the church society for its use as au organization of Christians of the belief of the German Evangelical Synod of North America, and as a church society of such synod, are in the main supported by the uncontradicted evidence or the preponderance of the evidence, and that no material question, at least, was determined contrary to the clear preponderance of the evidence.

We come now to the broad question of whether a majority of the members of a church corporation, organized as a body of Christian believers of a particular sect, can devote its property to a use inconsistent with the purposes of the corporation. That question, it would seem, on the most familiar principies, requires a negative answer. It is the law of such corporations, the same as of all others, that they cannot lawfully divert their property to uses in disregard of the limitations contained in the acts creating them. There is no difference between church and other corporations in that regard. Church corporations are creatures of the law the same as business or municipal corporations, and when it comes to property rights a court of equity has the same power to protect the minority in the one as in the other. If every taxpayer in a city but one were to favor the use of public property for a purely private use, the one, bached by the power of the court, would prevail. If all of the stockholders of a business corporation but one were to favor the use of the corporate property for something entirely foreign to the purposes of the corporation, the one stockholder, with right on his side, and the power of the court to enforce it, would control and pi’event the mischief. The power of a religious corporation as to the use of its property is limited by its organic act the same as any other. When it exceeds such limitations its acts are ultra vires, and the court, at the suit of a member of it, will apply the proper preventive or restorative remedy where there are no superior equities in the way.

The law as above indicated was definitely declared by this court in Fadness v. Braunborg, 73 Wis. 251. Attention was there called to the wording of the various provisions of cb. 91, R S. 1878, under which church corporations are created. Sec. 1990 authorizes the creation of such corporations, each limited, however, in its purposes, to those of a part'cular sect and a particular society of such sect, or to persons of a particular religious belief and a single society thereof. Other sections place such corporations, in all essential particulars, under the same restrictions as to their business affairs as those of other corporations existing under the statutes. It was said in the Fadness Case, in effect, that if officers temporarily in charge of the corporate affairs divert its property from the legitimate uses of the corporation, as limited by'the grant of such property to it, or' the purposes of its organization as regards the particular religious faith it was organized to promote, a court of equity has ample-power to interfere to protect the minority; for as to such matters the right of each member of the church society is the equal of every other, and the rights of all are referable to the terms of the trust upon which the corporation property is held, which trust, as indicated, may be declared in the conveyance of the property to the corporation so far as not inconsistent with its corporate powers, or by the articles of organization limiting and defining its rights and those of its members. B.y submitting to the law of the state in forming a corporation under the statutes, and vesting the title to the property of a church society in it, the members thereof become irrevocably bound by the limitations upon corporate power incident to such artificial bodies.

Evenson v. Ellingson, 67 Wis. 634, is to the same effect. It was there suggested that the policy of the state was to limit the purposes of a church corporation under the statute to those of a single society, particular sect, or body of persons of like religious belief, to avoid just such dangers as threatened, the minority of the society under consideration,— the danger of schismatic differences causing contentions among factions for the control and use of the property •of the society. The law wisely precludes the hope of factional, exclusive enjoyment of property, furnishing stimulus ■to church differences. Experience has taught that the cohesive power of mutual material interests, even those that •are aids to spiritual enjoyment and welfare, present and future, is generally as powerful to promote, in church affairs, the dwelling together of brothers in harmony, as matters of doctrine. The benefit of that influence is secured where persons are incorporated as members of a particular •sect and church, and vest the title to their church property in such corporation. So fenced about, a faction of a church community, however large, can neither withdraw and claim ■a part or any of the church property, nor remain and divert •its use to purposes foreign to the purposes of the corporation.

Cases exist, involving corporate control over property not impressed with a trust for a particular use by the instrument of conveyance or by the act of incorporation, some of which have.been brought to our attention, and many more might have been cited; but they do not apply. Sec. 3, ch. 60, •p. 212,2 Eev. Laws N. Y. 1813, that forms the basis for some of such decisions, which are referred to in other adjudications as authority, was said in Petty v. Tooker, 21 N. Y. 267, to expressly confer upon trustees of a church corporation organized under it absolute power of control as regards ■the religious use to which the property may be devoted. Here the statutes give to trustees of a religious corporation formed under them the same control over its property as is given to other corporations. The power is limited to the particular purposes expressly or impliedly named in the act of incorporation.

"What has been said is in harmony with the law regarding trusts for religious uses, whether the trustees be officers of a. religious corporation, or of an unincorporated ecclesiastical body, as indicated by the numerous authorities cited in the brief of counsel for respondents, among which are the following : Ferraria v. Vasconcellos, 31 Ill. 25; Mt. Zion Baptist Church v. Whitmore, 83 Iowa, 138; White Lick Q. M. F. by Hadley v. White Lick Q. M. F. by Mendenhall, 89 Ind. 136; Lamb v. Cain, 129 Ind. 486; Miller v. Gable, 2 Denio, 492; Schnorr's Appeal, 67 Pa. St. 138; Stebbins v. Jennings, 10 Pick. 172; Baker v. Fales, 16 Mass. 503; Smith v. Pedigo, 145 Ind. 361; Hale v. Everett, 53 N. H. 9.

The governing idea in all such cases is that property held by the trustees of a church society has impressed upon it a character in harmony with the creation of the trust,- and that any change of such character is a violation of such trust. If property be conveyed to trustees for use of the corporation, and its organic act proclaims the religious belief of its members and sect to which it belongs, so as to indicate clearly the particular use intended by the grantor, or the conveyance expressly indicates the particular use intended by the grantor, or the conveyance expressly indicates the limitations upon such use, or if a corporate organization be formed as a society of a particular church and it becomes possessed of property in any way in trust to that end, in either case the property is held in trust for the use so indicated, and such use cannot be perverted without consent of all the parties to the trust.

Our attention is called to Watson v. Jones, 13 Wall. 679, as supporting the view of appellants, but it is in strict harmony with the foregoing. Justice Milleb there classified controversies that had been before the courts, concerning rights of property held by ecclesiastical bodies, as follows:

(1) Oases where property forming the subject of controversy was, by the terms of the deed or will of the donor, or other instrument by which the property is held, devoted to the teaching, support, or spread of some specific form of religious doctrine or belief. '

(2) Where property is held by a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and, so far as church government is concerned, owes no fealty or obligation to any higher authority.

(3) Cases where the religious corporation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control, more or less complete, in some supreme judicatory, over the whole membership of that general organization.

In the first class of cases it was said the property cannot legally be diverted from the purposes of the trust, whether the donee be an independent church or the member of a larger church organization to which it owes obedience. In the second class it was said, where the character of the organization is such that its members, in such manner as may be prescribed by the plan of organization, may freely deal with its property,'and such property is not impressed with ■any trust other than .that of the general use for the purposes of the organization as a .religious society, its trustees, for the time being, in power, according to the rules of the ■society, can control the use of the property within the general purposes of its ownership. In the third class of cases it was said, where the control of property is dependent upon the question of doctrine, discipline, ecclesiastical law, rule ■or custom, or church government, and that has been decided by the highest church tribunal within the organization, the civil court will accept and follow the ecclesiastical determination.

It will be seen that the idea which prevails at every point is that a trust impressed upon property, if there be one, cannot be legally violated. As was said, in effect, in Miller v. Gable, 2 Denio, 492, a single member of a church, will prevail against a dozen to prevent a violation of a trust for a particular religious use of the church. And in Mt. Zion Baptist Church v. Whitmore, 83 Iowa, 188, a minority of the members of the church, however small, may prevent the diversion of the property held by it in trust to promulgate a particular religious faith.

The instant controversy cannot properly be located in the second class mentioned in Watson v. Jones, 13 Wall. 679. The Wayne society is not strictly an independent church society. It was made, by its articles of organization, a society of the German Evangelical Synod of North America. Again, the property was conveyed to the church, as has. been stated, for a particular use, within the first class of cases mentioned. This is not a case where there is no specific trust impressed on the corporate property in the hand» of the church; neither is it a cause dependent upon a determination of some ecclesiastical question.

Again, we are not dealing with a controversy regarding which of two factions, claiming to belong to the same sect, is entitled to control its property, the decision involving some-question of doctrine, or other ecclesiastical question, as in. Wehmer v. Fokenga, 51 Neb. 510; nor is it a case where a corporation, organized without reference to synodical relations,, afterwards gave allegiance to a particular synod, and later a faction attempted to sever such allegiance, as in Fadness v. Braunborg, 73 Wis. 257, and Lawson v. Kolbenson, 61 Ill. 405. The controversy is whether members of a corporation,, created as a synodical church society, and expressly limited by its organic act as to its association with other churches, and the trust character of its property, and by the conveyance of such property to it, merely because they are in the majority, can violate that trust and be free from the power of a court of equity to remedy the wrong at the suit of the minority. The answer to that has been indicated. The decision of the circuit court was right. The judgment must be affirmed. '

By the Gourt. — .So ordered.