65 Mo. App. 435 | Mo. Ct. App. | 1896
The defendant Oliver had the contract for the erection of a church building in the city of
Touching the ownership of the lot it is affimatively stated in the petition that it belonged to the members of the church organization. Under this averment it is contended by the defendants that all of the members should have been made parties to the action. This is the important question presented by the demurrers. The objection that there is a misjoinder of parties defendants is only open to a defendant who has been improperly joined. Alnutt v. Leper, 48 Mo. 319; Ashby v. Winston, 26 Mo. 210. As it was alleged in the petition that all of the defendants were members of the congregation, and as the demurrers proceed, as they must, upon the theory that the members are the only necessary or proper parties, it is obvious that there is nothing in the first ground stated in the demurrers. The argument in support of the second ground of the first demurrer is equally untenable. The substance of it is that, as the members of the building committee were charged as having acted in a purely representative capacity, their principals and not they should have been sued. The argument would have merit, were it not also averred that they were members of the congregation. They were thus acting for themselves as well as others. It is also averred that they were in the possession of the premises, claiming to be the equitable owners thereof. The third objection, that is, that the petition shows on its face a want of necessary parties defendants, is properly taken, and in fact can only be
As to the demurrer of W. A. McCanse,' it is sufficient to add that he was a proper party, as it was alleged that he was a member of the organization. Besides, it was shown at the trial that he held the legal or record title to the lot, which rendered it the more important that he should be made a party. It seems that many years ago he attempted to convey the lot to the congregation of the Cumberland Presbyterian Church at Mt. Yernon. As the congregation was unincorporated, it was incapable of becoming the grantee of land in a corporate name, and hence the deed was a nullity and passed no title to anyone. Douthitt v. Stinson, 63 Mo. 268.
The judgment as to the trustees or building committee and W. A. McCanse is supported by the evidence and is correct, but, in so far as it authorized the sale of the interest of the Mount Yernon congregation in the lot, it was unauthorized. It will therefore be reversed, and the cause remanded with directions to enter a new judgment, omitting therefrom the name of the congregation.