Walrath v. Campbell

28 Mich. 111 | Mich. | 1873

Christiancy, Ch. J.

It is hardly necessary to say, that as the defendant could not in any event be entitled to recover beyond the value of the property, and there was no evidence of its value except that furnished by the appraisal made under and returned with the writ of replevin, which was only $107 10, the allowance of the amount of $208 (because that was the amount of defendant’s lien) was clearly erroneous. Upon the hypothesis that the defendant was entitled to recover at all, his recovery should have been limited to the value as shown by the appraisal.

But, there being no other evidence upon the point, we think this appraisal was prima facie evidence of the value, and if the defendant was entitled to recover at all, he was entitled to recover to the amount of the appraisal; upon this point the case comes within the principle of our decision in Worthington v. Hanna, 28 Mich., 580.

Should this be the only error, this being a case made, we might correct this error by merely reducing the judgment to its proper amount.

But there are several other questions raised which we proceed to consider.

We see no error in. the admission of parol evidence to prove the official character of the persons mentioned as trustees at the time the mortgage was executed. It was sufficient prima facie proof to show that the persons named were acting trustees or such officers de facto of the society, which would furnish the presumption that they were so de jure; and for this purpose parol evidence was clearly admissible. — Cahill v. Kalamazoo Mutual Ins. Co., 2 Doug. (Mich.), 124; Druse v. Wheeler, 22 Mich., 439. The testimony was, that they were such trustees at the time, and the evidence further shows that they acted as such, and this evidence was uncontroverted. And if the defendant was allowed to go further, and to show by parol their actual election and qualification as such (which, when necessary to be shown at all, might be required to be shown by the record), parol proof of such facts could in no way prejudice the plaintiff, since those facts were unnecessary to be proved by the defense, the official character of the trustees named being sufficiently shown without the objectionable evidence.

The next objection is to the parol proof of the contents of the written notice of a meeting of the society for the first of August, which the defendant testified he read to his congregation on three successive Sabbaths in the month of July, and showing the object for which such meeting was called. And in' connection with this, may also be considered the question arising upon the objection to the proof by parol evidence of “what directions the meeting gave to the trustees, as to giving mortgages upon the property of the society.”

The object of introducing the evidence upon both these points, so far as we can judge from the case, seems to have been to show the power of the trustees to execute the mortgage under which the defendant claimed, for which purpose it seems' to have been thought necessary to show that the trustees gave the mortgage in pursuance, and with the vote or directions, of a meeting of the society, duly notified for the purpose.

To authorize the trustees to execute a mortgage of real estate (and there were such mortgages executed by them 'on the same occasion), it would have been necessary under section 3062, Compiled Laws, as amended in 1869 (Sess. L. 1869, p. 67), that they should have “ the assent of two-thirds of the voters present at a meeting of the society, duly and specially called for the purpose;” and in such case, and so far as such meeting and such vote, or the consent of the society was necessary to the giving of the present mortgage, the notice of such meeting, as well as its action, or any vote or direction it may have given, must have been proved by the best evidence, the written notice itself, and the record of the meeting, or the loss or inability to procure the written notice or record, must have been shown before secondary evidence could have been given of its contents. This certainly would be clearly so of the contents of the record, and I think equally of the contents of the notice; as the written notice was not one delivered over to the parties receiving it, but merely read by, and therefore (in the absence of evidence to the contrary) to be presumed to have remained in the possession of, the defendant, who is seeking to prove the notice to establish a claim of right in himself. Its non-production, therefore,' and a resort to secondary evidence, are open to the same suspicion as parol evidence in ordinary cases where the fact sought to be proved is the contents of a written instrument.

But the provision of the statute requiring a vote of the society at a special meeting called for the purpose, does not apply to a mortgage or sale of personal property. The statute, it is true, grants express power to sell or mortgage real estate, in pursuance of a vote at a meeting thus called, and is silent as to the power to sell or mortgage personal property; and for this reason, and because the amendment of the same section in 1861 (Sess. L. 1861, p. 228), which first gave to religious societies express power to execute mortgages, authorized the trustees to execute mortgages upon any of their property, extended the power only to the securing of liabilities incurred in the erection or repair of their churches, meeting houses and other buildings, and the act of 1867 (Sess. L. 1867, p. 100) amending the same section, only added to this the right to execute such mortgages upon the property of the society to secure the payment of liabilities for the purchase of sites for such buildings, and the section, as amended in 1869 (first above cited), only extends the power to real estate, — the plaintiff’s counsel therefore infers and insists that the trustees, under this statute, had no power to execute a mortgage upon the personal property of the society.

But we think there is no sufficient ground for such an inference. The power to mortgage or sell real estate of such religious societies, for many peculiar reasons, might have been a doubtful one without some enabling statute; but that the trustees, who in fact constitute the corporation, would, without an enabling statute, have the right to sell an organ, a chair, stove, or carpet, which they might happen to own and wish to dispose of, can hardly admit of a doubt; and generally the power to sell includes the more limited power to mortgage. And we think the power to execute a mortgage upon their personal property, to secure their debts, is one which is incident to the existence of a corporation, and that it requires some express or clearly implied prohibition by the legislature to take it away. — Angell & Ames on Corp., §§ 187, 191, and authorities cited; 2 Kent's Com., 280.

It was usual in England to restrain both the power of acquisition, and the power of sale of ecclesiastical corporations, and a similar policy has been adopted in some of the American states in reference to the real estate of such corporations; and certain restrictions of this kind will be found in our own statutes.

But these restrictions are confined to real estate; and our statute furnishes no clear intimation of any intention to limit the power of such corporations to sell or mortgage their personal property. As a common-law incident, therefore, of their corporate existence, we must hold that they have the power.

No meeting or directions of the society, therefore, being necessary to give the trustees power to execute this mortgage, if in other respects valid, the error upon this particular point, in admitting the evidence, could not in any way prejudice the plaintiff; though, if admitted for the purpose of having the further effect to show an employment or hiring, or a ratification of the hiring of the defendant, as pastor, by the congregation, it would have been erroneous, and the action of the meeting cannot therefore be considered as in proof for this purpose.

As to plaintiff’s objection that it was not proved that the parties who executed tbe mortgage ever bad any title to the property, or right to mortgage the same, and that if a mortgage, it was only that of the parties whose names, were signed to it, we infer from the argument that this is intended to be based upon, and claimed to follow as a consequence from, the misnomer of the corporation insisted upon under the next point, and that it was not intended to refer to the mere form of execution. The property was shown by the plaintiff’s evidence to be the property of “The First Orthodox' Congregational Society of Middle-ville.” But the mortgage purports on its face to be given by “ The trustees of the Orthodox Congregational Ohu-rch of Middleville,” and it is insisted that this is an entire misnomer, and we are naturally to infer that there are two ■ corporations, one of each name, at Middleville.

It is not necessary to say what might have been the result upon this point, had there been no ’proof of identity. No great exactness, it is true, was observed by the trustees in describing the corporation by the exact corporate name given in the certificate. In the body of the instrument they describe themselves as “The trustees of the Orthodox Congregational Church of Middleville,” but, in signing, they leave out the word “ Orthodox.” But all understand these religious societies authorized by the statute are what are usually and properly enough known as churches.

The plaintiff’s counsel himself makes quite as great a mistake, and quite as essential a misnomer, when he assumes, as he'does in his brief, that it is the “society” which constitutes the corporation; whereas, the statute makes the trustees constitute the corporation — Comp. L. 1871, §§ 3059, 3060, 3061. The fact that the name, as given by the certificate, would, when applied to the statute, make the true corporate name “ The trustees of the First Orthodox Congregational Society,” etc., might, under evidence that there were two Congregational churches at Middle-ville, render the name given in the mortgage (which omits the term “"First”) doubtful, and perhaps, without evidence showing that there were two Congregational churches there, evidence might be required to show the identity. But the great object of a corporate name, like that of an individual, is to identify the corporation, and it may be known by several names, as well as a natural person; and when the variance from the exact designation given by the statute is no greater than it is here, I can see no good reason to doubt the propriety of parol evidence tending to identify the corporation whose organization was shown by the certificate, with that which executed the mortgage. — Angell & Ames on Corp., §§ 99, 284, and cases cited.

Here such evidence was given, wholly uncontradicted, as placed the identity beyond question. It was proved by the parol evidence, to which, as we have seen, there was no good legal objection, that the three persons who, as trustees, executed the mortgage, with two others named, “ were ” (I quote from the record) “the trustees of said First Orthodox Congregational Society of Middleville,” etc. It was that corporation against which the plaintiff had obtained his judgment; and it is for the attempt which his counsel claims the evidence shows, to evade the payment of this judgment, that the chattel mortgage was void. In short, the whole case shows, beyond all reasonable question, the identity of the corporation. The court must so have found, to give the judgment he did. He was asked for no special finding, and no exception was consequently taken to that conclusion, except what was taken on other grounds, to some of the evidence tending to prove it, and this, as we have seen, was not well taken.

The mortgage was therefore properly admitted in evidence.

It was talked over (as the defendant testifies) among the trustees, in his presence, that the plaintiff “had just recovered a judgment against the society for nearly a thousand dollars” (evidently alluding to the judgment upon which plaintiff’s execution issued), “and that an execution would probably soon be taken out upon such judgment;” [the evidence shows it was issued on the 16th of September following] ; “ and all of the property of the society seized and levied upon by the sheriff, unless they took steps to forestall such action by giving mortgages upon all of such property.” And it was further shown that in pursuance of this expressed purpose, this mortgage, and two mortgages amounting to two thousand eight hundred dollars upon the real estate of the society, were executed on the 5th of August. And the plaintiff contends that this, per se, rendered the mortgage void. Doubtless it was very strong evidence tending to show fraud; and this point might well have been urged before the circuit judge on the trial. But this was, after all, only evidence of fraud; and we cannot, upon a case made, weigh evidence, or determine the facts.

But we may, nevertheless, upon this case made, be compelled to arrive at the same result as if the mortgage had been expressly found by the circuit judge to be fraudulent; for, if we can see from the case as made, that there was no evidence tending to support any particular point essential to sustain a judgment for the defendant, it is our duty to reverse the judgment..

The point was taken against the admission of the mortgage, that it was not proven that there was any indebtedness of said society to the defendant; because it was not shown that the society had ever employed him as its pastor, or agreed to pay him any salary.

This objection was not good against the introduction of the mortgage, because that might have been followed. up by the proof of the employment, and agreement of the society to pay the salary. But the question arises here, whether there was any such proof, either before or after the introduction of the mortgage. If not, there was no proof of the consideration for the mortgage, and the question then arises, whether the mortgage, or (which is the same thing) any judgment for the defendant, could be sustained. The defendant’s evidence tended to show that the mortgage was given to secure him for the amount due him on what he calls his salary. The statute (Comp. L., § 3071) provides: “Nothing in this act contained shall be construed to give such trustees the power to fix or ascertain the salary or compensation to be paid any minister or priest, curate, rector, or parson, but the same shall be ascertained and fixed by a majority of such society, entitled to vote at the elections of trustees.” Pastor is but another name for minister or parson. I have been unable to find any evidence tending to show that defendant’s salary was thus fixed, or that the society or its voters had ever agreed to pay him auy sum or compensation whatever. The defendant’s own testimony is all there is upon this question, and it is peculiar; he says “he was employed to act in that capacity ” [pastor] “ by Albert D. Badcock and Charles McQueen, and that for his services said Badcock and Mo-queen agreed to pay him a salary of seven hundred and twenty-five dollars per annum.” He does not say, nor does his language, taken together, fairly imply, that he was hired by them, or his salary fixed, or that they agreed to pay, as trustees j and as all the trustees together had no such power, and if they possessed it, it would require at least a majority to fix the salary, the inference is quite strong that these two individuals did not undertake to hire him, or fix his salary, in their capacity of trustees, with the intention of binding the society. It is by no means an unprecedented thing for individuals to hire and pay a salary to a minister without calling upon the church or congregation for aid.

Nor is there any evidence tending to show that the society ever ratified this agreement of Badcock and Charles McQueen to pay this or any salary or compensation. And it may be doubted whether there would be any such evk dence, if the notice of the meeting, and the transactions of the meeting alluded to on the first of August, had been properly in evidence; but, as already stated, this notice, and the proceedings of the meeting, were not properly in evidence. And if it be said that it might be inferred, from the evidence of his having officiated as pastor without objection from the congregation, that they ought to pay him what his services were reasonably worth, it may be replied that this would not be so if Badcoek and McQueen had hired him on their own account, and not on that of the society; and that, at all events, there is no evidence of the reasonable value of his services, or whether they were worth any thing. No consideration for the mortgage is therefore shown. And as the mortgagee distinctly swears that it was made with the expressed design of hindering; Walrath from collecting his debt by execution, it must be considered a fraud against him, until shown to be otherwise by proof of such consideration. As no such evidence was given, the defendant failed to establish any claim to the property, and the judgment must be reversed, and a judgment entered in this court for the plaintiff in replevin for the recovery of the property, with his costs in both courts..

The other Justices concurred.