25 Kan. 177 | Kan. | 1881
The opinion of the court was delivered by
This action was begun on Sunday;, but the defendants, without ever raising any question or making any objection concerning the irregular commencement of the action, voluntarily appeared in the case, filed answers setting forth various defenses, went to trial upon the' merits of the case, introduced evidence, made a motion for a new trial, and then brought the case to this court on petition in error, and then, for the first time and in this court, raised such question and made such objection. We think they are-too late. They should have raised the question and made the objection in the district court, and before answering to-the merits.
II. The controversy in this case is concerning the ownership of certain church property. Both parties claim to own it, or at least to have the right to hold and control it, to possess and enjoy it. The plaintiffs in error, who were defendant's below, claim to own the property as the trustees of the First Colored Baptist church of Atchison, Kansas. The defendant in error, which was the plaintiff below, the Ebenezer Baptist church of Atchison, Kansas, claims to own the property as the successor of the First Colored Baptist church of Atchison, Kansas, also as the successor of the Colored Baptist church of that place, and also as the successor of the Calvary Baptist church of that place, provided the Calvary Baptist church ever had any interest in the property.
The second point made by the plaintiffs in error is, that the defendant in error, the Ebenezer Baptist church, has never been duly incorporated. Now while we think that it has been sufficiently incorporated to become at least a corpo
The property in controversy was conveyed to five persons, their names being given, as trustees of the Colored Baptist church, and to their successors. Two of these persons (less than a majority) are now plaintiffs in error, and the other three (a majority) are probably and presumably members of the Ebenezer Baptist church, and therefore on the side of the defendant in error. It will also be noticed that the property in controversy was conveyed in trust for the use of the Colored Baptist church, and not in trust for the use of the First Colored Baptist church. Afterward, however, the name of the Colored Baptist church was changed to the First Colored Baptist church, and the First Colored Baptist church was of course the legitimate successor of the Colored Baptist church. Indeed, the two churches were the same church. At one time, (but when, the record does not show,) the church was also known by the name of the Calvary Baptist church. Afterward the First Colored Baptist church elected its trustees and other officers — reelecting two of the trustees to whom the property had previously been conveyed, and failing to reelect the other three. Three new men were elected in their places. These five trustees elected at this election by the First Colored Baptist Church are now the plaintiffs in error, and are now claiming the property in controversy solely by virtue of such election and solely as trustees of the First Colored Baptist church. At the time of this election there was another church in Atchison composed of colored people, called
III. The plaintiffs in error claim, as a third point, that the court below substituted the rules and regulations of the Baptist church for the statutes of Kansas relating to trusts and conveyances. Now the court below did not do any such thing. It is true that the court below held that the acts of the First and Second Colored Baptist churches and the Eben-ezer Baptist church had, in accordance with the rules and regulations of the Baptist denomination, determined where the property should go and who should have the control thereof; but this action of these churches was not in violation or contravention of any statute or law of Kansas. Besides, the plaintiffs in error do not claim to control the property as the trustees of the Colored Baptist church, to which the property was originally conveyed, and they could not if they would, for such church no longer has any existence, and those trustees have long ago been superseded by others. But even if those original trustees were still in existence as trustees, it would not help the plaintiffs in error, for only a minority of such trustees is with the plaintiffs in error. The plaintiffs in error really claim to control the property as the trustees of the First Colored Baptist church. But that church has also ceased to exist, and its trustees have been superseded, by others. That church has been merged in the Ebenezer Baptist church, and all the property that belonged to the former church now belongs to the latter; and all this follows in exact accordance with the rules and regulations of the Baptist denomination, to which a]l the parties belong. The rules and regulations of
It is not necessary for us to decide precisely what title the defendant in error has to the property in controversy; but whatever title it may have, we think its title is better than that of the plaintiffs in error, and hence it follows that the judgment of the court below is correct, and it will be affirmed.