Liggett v. Ladd

1. Pleading — Amendments—Code, § 101. — A complaint maybe amended by changing a party from defendant to plaintiff, under 1 Hill’s Code, $ 101, perniitting pleadings to be amended by striking out or adding the name of a party. 2. Idem. — An amendment to a complaint to set aside a deed to an agricultural college, alleging that a defendant college which held the land ir. trust for the plaintiff church is unwilling to execute the trust until judicial determination that its deed to the agricultural college is of no force, does not set up a new cause of action in making the trustee college-a plaintiff, instead of a defendant, and in alleging that such trustee is prevented by such deed from executing the trusts since the same evidence will support both complaints and the same measure of damages will apply to both. 3. Agricultural College — Corporations — Power to Hold and Convey land. — Corvallis College, incorporated to hold property in trust for a certain church, for the support and spread of the Christian religion, and to endow, build up, and maintain a strictly literary institution for educational purposes, and which had been designated as the state agricultural college, although no agricultural college eo nomine was established, had power to take title to a farm paid for by subscriptions which were stated to be for the purpose of purchasing an agricultural farm for it, without holding subject to any trust in favor of the church, and upon discontinuing the teaching of agricultural subjects and returning to its original purpose of a strictly literary institution, it may convey such farm to the board of regents of the state agricultural college, which is a corporation capable of taking and holding the title. 4. The board of regents of the state agricultural college is a corporation capable of taking and holding the title to real property. Dunn v. University of Oregon, 9 Or. 357, approved.

Multnomah County. E. D. Shattuck, Judge. Defendants appeal. Suit by Joseph Liggett and others, members of the Methodist Episcopal Church South, against W. S. Ladd and others, regents of the agricultural college of the state of Oregon, and against Corvallis College, to set aside a deed. An amended complaint changed the Corvallis College from a defendant to a plaintiff. The case was originally tried in Benton County, and was before this court in 1888: Liggett v. Ladd, 17 Or. 89 (21 Pac. Rep. 133). After reversal there was a trial in Multnomah County, which resulted in a decree for plaintiffs. On the fifteenth day of October, 1887, the plaintiffs, Joseph Liggett, John Rickard, and Casper Rickard, filed in the circuit court of Benton County their complaint against all the appellants and Corvallis College, in which it is alleged that they are members in good standing of the Methodist Episcopal Church South, and bring this suit for themselves as members of said church and for other members too numerous to be made parties to the same; that said church is an unincorporated religious association embracing in its membership a large number of persons in various parts of Oregon, with societies, churches, and ministers, devoted to the spread and support of the Christian religion; that Corvallis College, defendant, is' an educational institution located at Corvallis, Oregon, incorporated under the laws of said state, and the other defendants claim and assume to be and act as board of regents of the state agricultural college of the state of Oregon; that Corvallis College was incorporated August 22, 1868; that it is provided in its articles of incorporation as follows: “The object of this incorporation is to acquire and' hold property in trust for the Methodist Episcopal Church South, in the state of Oregon, and to endow, build up, and maintain an institution for educational purposes, and to confer all such' honors, distinctions, and degrees as are usual in colleges; to be conducted and carried on under the direction and control of the trustees aforesaid and their successors in office; provided, that said college shall be a strictly literary institution. ” The trustees as aforesaid, were appointed by the Columbia conference of the Methodist Episcopal Church South, at their last meeting, and their successors will be appointed at the next annual conference, and so on in perpetual succession according to the laws, customs, and usages of said church. That on the third day of January, 1876, the trustees filed supplementary articles, adding the following clause, “and with full power and authority to make, execute, and deliver checks, promissory notes, and bills of exchange for the purpose of paying the debts of said institution and purchasing property necessary for the same; and to make, execute, and deliver deeds and mortgages of all or any of the property of said institution when the same shall be sold or mortgaged, and to sell any and all property belonging to said college, when the same may be deemed unsuitable, and to purchase and hold other property of any name or nature, necessary or suitable to complete success and purposes of said institution, not exceeding the sum of five hundred thousand dollars”; that on October 21, 1870, the legislative assembly of Oregon by its act, duly passed, designated and permanently adopted Corvallis College as the agricultural college of the state, with a provision in said act that said college should accept the same and be bound thereby; and on the twenty-ninth day of October, 1870, the said act with all its provisions was duly accepted by and has since been duly observed and kept by the said college, whereby said Corvallis College has ever since been and now is the permanent agricultural college of the state of Oregon; that since said time said college has been and now is receiving pupils and educating and fitting them for agricultural pursuits, according to the laws, regulations, and usages applicable to an agricultural college; and large contributions of property and money, by members of the Methodist Episcopal Church South and other persons, have been made to the support of said college as the agricultural college of the state; that on the seventeenth day of April, 1871, George'Roberts and Elizabeth Jane Roberts, his wife, for the consideration of §4,500 paid to them, conveyed to Corvallis College the real property which is the subject of this suit and which is generally referred to by the witnesses as the college farm. That said deed contains the following provisions: “And this conveyance is made to said Corvallis College, to the end that the premises be used by said college as an agricultural farm, in connection with and for the purpose of the agricultural college of the state of Oregon. Now, whenever said premises shall cease to be used or occupied for the purpose of said agricultural college, then the said premises shall vest and become the property of the several persons who have or shall contribute to the purchase money in the proportion contributed by each person”; that said §4,500, the purchase price of said property, consisted of moneys contributed for the purchase thereof by members of the Methodist Episcopal Church South and other persons. That at the annual session of the Columbia conference of the Methodist Episcopal Church South, held at Albany, Oregon, Sept. 10,1885, J. M. Osburn, Robert L. Buchanan, D. C. McFarland, R. S. Stratton, J. D. Lee, R. P. Boise, J. R. N. Bell, E. B. McElroy, J. W. Applewhite, E. G. Michael, B. F. Burch, James A. Cauthorn, B. L. Arnold, M. Jacobs, Joseph Emery, J. W. Johnson, R. C. Oglesby, and J. W. Compton were appointed trustees of Corvallis College and continued such trustees until September 15, 1886; that said conference at the same session adopted a resolution declaring in effect that no change should be made by the trustees of said college affecting its rights or standing as the agricultural college of the state of Oregon, and the said Columbia conference is and has at all times been the lawful and duly authorized representative of the Methodist Episcopal Church South in Oregon; that on the fifth day of February, 1886, the said R. L Buchanan, J. B. Lee, J. R. N. Bell, E. B. McElroy, J. W. Applewhite, B. F. Burch, A. Cauthorn, B. L. Arnold, M. Jacobs, and James A. Cauthorn of the trustees of said college assembled at the chapel of said college in Corvallis, Oregon, and with a full knowledge of the action of said conference of September 10, 1885, as above set forth, by a majority vote passed the following resolution: ‘‘That the president and secretary of this board be ordered to deed the college farm to the state of Oregon, or its constituted authorities.” That said meeting was not legally called or assembled, and that said meeting and said resolution were and are irregular, illegal, and of no effect; that on the twentieth day of February, 1886, the said J. B. Lee, acting as president, and that the said James A. Cauthorn, acting as secretary, of Corvallis Col lege, in the name of said college, executed and delivered to the board of regents of the state agricultural college of Oregon, a deed conveying said real property (the college farm) to them; thát said deed was without any consideration or benefit to Corvallis College and with full knowledge by the grantee of the trust set up in the complaint; that the board of regents of the state agricultural college was never a lawful or corporate body and never had any capacity to take or hold said property; that Corvallis College received and held said property in trust for plaintiff and other members of the Methodist Episcopal Church South in Oregon; that said resolution of February 5, 1886, and said deed of February 20, 1886, were made and executed in violation of said trust and contrary to the known and expressed will of said church, and will, if held valid, work irreparable injury to said college as the agricultural college of said state and weaken the influence and power of said church for educational and. religious purposes; that defendants claim that said property belongs to said board of regents and deny the trust set up in the complaint, and that said deed is a cloud upon and an injury to the right of plaintiffs and other members of the Methodist Episcopal Church South of the state of Oregon, and that Corvallis College is unwilling to execute said trust without a judicial determination that said deed has no force or effect. And it prays for a decree on behalf of plaintiffs and the other members of the Methodist Episcopal Church South of the state of Oregon, establishing said trust in their favor and declaring said deed null and void, and compelling Corvallis College to execute said trust, and enjoining the other defendants from in any way interfering with the same, and for general relief. A demurrer was interposed to this complaint by the defendants. The demurrer was sustained by the court below, and plaintiffs standing by their complaint, a decree was entered dismissing the complaint. Plain uiffs appealed to this court, which reversed the decree and remanded the cause for further proceedings: Liggett et al. v. Ladd et al. 17 Or. 89 (21 Pac. Rep. 133). At the November term, 1889, of the circuit court for Benton County, the plaintiffs were permitted to file an amended complaint, which is in all respects the same as the original except that it changes Corvallis College from being a defendant, as in the original complaint, to a plaintiff in the amended complaint, and instead of the allegation that ‘ ‘ Corvallis College is unwilling to execute said trust without a judicial determination that said deed has no force or effect” in the original complaint, it alleges that “said Corvallis College, on account of said deed, is prevented by said pretended board of regents from executing its said trust and from exercising and performing its rights, duties, and powers as the agricultural college of the state of Oregon”; and the prayer for relief contains the additional clause, “restoring to said Corvallis College as the agricultural college of the state of Oregon, its right to possess and use said agricultural farm.” This pleading was filed under an order granting leave generally to file an amended complaint and upon no special showing; and when the attention of defendants was called to it they filed their motion to strike it from the files, which motion was .as follows: “Come the defendants and move the court to strike out the paper filed in the above-entitled suit, entitled an amended complaint, for the reason that the same sets up a new cause of suit in favor of Corvallis College and against these defendants not contained or set forth in the original complaint, and in effect substitutes a cause of suit in favor of Corvallis College and against these defendants for a different cause of suit set forth in the original complaint, and that such a change cannot be permitted or allowed under an order granting leave to amend the complaint. ” This motion was denied, and the action of the court in denying the same and permitting the amendment is one of the errors relied upon by appellants. The defendants then demurred to the amended complaint assigning the following grounds: 1. Said amended complaint does not state facts sufficient to constitute a cause of suit. 2. There is a misjoinder of causes of suit and of parties plaintiff in this, that there is therein joined a cause of suit in favor of the Methodist Episcopal Church against these defendants to have a decree of this court that the real property described in the amended complaint is held intrust for said church, with a cause of suit in favor of Corvallis College against these defendants to set aside a deed described in the amended complaint made by the trustees of said college to these defendants, which causes of suit are improperly united in said amended complaint. 3. That there is therein a defect of parties plaintiff. 4. There is therein a defect of parties defendant that the following members of the board of trustees of said Corvallis College mentioned in said amended complaint, to wit, R. L. Buchanan, J. B. Lee, J. R. N. Bell, E. B. McElroy, J. W. Applewhite, B. P. Burch, A. Cauthorn, B. L. Arnold, M. Jacobs, and James A. Cauthorn, ought to be parties defendant to this suit.” This demurrer was overruled by the court, and defendants filed their answer. The cause was then transferred to Multnomah County for trial. Corvallis College was established by the Methodist Episcopal Church South of Oregon in 1885, and incorporated August 22, 1868. July 2, 1862, the congress of the United States granted to this state ninety thousand acres of land for the purpose of establishing an agricultural college, and the act provided that said land should be sold and the money arising therefrom should continue a perpetual fund, the interest of which should be invariably appropriated by the state to the endowment, support, and maintenance of ad least one college where the leading object should be, without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts in such manner as the legislature might prescribe. October 27, 1868, the legislative assembly of Oregon by an act appointed commissioners to locate the lands to which the state was entitled under the grant of congress for agricultural purposes, and also provided that until other provisions were made, Corvallis College should be designated and adopted as the agricultural college, in which all students sent thereto under said act of the legislature should be instructed in all the arts, sciences, and other studies, in accordance with the requirements of the act of congress making such donation. Said act of the legislature was not to be binding until the trustees of said college should adopt a resolution agreeing on their part to faithfully carry out the provisions of said act. October 21, 1870, the legislative assembly of Oregon passed another act,* entitled “An act to permanently locate the agricultural college of Oregon,” which provided that Corvallis College in Benton County is hereby designated and permanently adopted as the agricultural college of the state of Oregon, in which all students sent under the provisions of law should be instructed in accordance with the provisions of the act of congress of July 2, 1862. A board of commissioners was also appointed to prepare a plan for the instruction and education of the students in said agricultural college. The act also provided that the board of trustees of Corvallis College might accept the provisions of said act within thirty days after its passage by adopting a resolution agreeing to be bound by the same, and file the same with the secretary of state; and if not so adopted within that time the said college should be deemed to have rejected the same. The board of trustees of the said college, on the twenty-ninth day of October, 1870, adopted resolu tions accepting the provisions of said act and agreeing to be bound by the same, which resolutions and acceptance were filed with the secretary of state on the second day of November, 1870. January 22, 1871, a subscription list was circulated at Coryallis and elsewhere in Benton County, with the following agreement: “We, the undersigned, do agree to pay J. O. Avery, G. B. Smith, B. R. Riddle, J. S. Palmer, and Joseph Emery (committee appointed by board of trustees) the amounts opposite our names, in United States gold coin, for the purpose of purchasing an agricultural .farm for the use of Corvallis College, one half to be paid on demand, and the balance on or before the first day.of January, 1872.” Four thousand nine hundred and sixty-three dollars and fifty cents was subscribed for this purpose, and on the seventeenth day of April, 1871, in consideration of $4,5.00, so subscribed, George A. Roberts and Elizabeth Jane Roberts, his wife, duly bargained, sold, and conveyed the real property, the title to which is involved in this suit. The deed contained the provision mentioned heretofore. It appears that there were two mortgages given by the said college to secure the unpaid subscription to this fund, amounting when paid in 1888 .to about $1,800. Juñe 3, 1876, Corvallis College filed supplementary articles of incorporation in addition to those filed October 2, 1868, as follows: “Add to the article 2, ‘and with full power and authority to make, execute, and deliver checks, promissory notes, and bills of exchange, for the purpose of paying the debts of said institution and purchasing property necessary for the same, and to make, execute, and deliver deeds and mortgages to all or any of the property of said institution when the same shall be sold or mortgaged, and to sell any and all property belonging to said college, when the same may be deemed unsuitable, and to purchase and hold other property of any name or nature, necessary and suitable to the complete success and purpose of said institution, not exceeding the sum of five hundred thousand dollars.’ Add to article 3 the following, to wit: ‘The present estimated value of the property of said institution at Corvallis is thirteen thousand dollars, and its sources of revenue are appropriations of the legislature of Oregon and the proceeds of lands donated by the congress of the United States, and interest on the money arising from said sales and rents of the property of said college. ’ ” These amended articles were executed by nine trustees, duly appointed by the Methodist Episcopal Church South, at the annual session held at Albany, Oregon, in September, 1875. Corvallis College continued to hold this property, the title to which is involved in this suit, till the twentieth day of February, 1886, when the same was conveyed to the board of regents of the agricultural college of the state of Oregon, in consideration of one dollar, and the further consideration of a resolution duly presented to and regularly adopted by the board of regents of said Corvallis College at a special meeting of said board of regents held at Corvallis, Oregon, on the fifth day of February, 1886, which resolution authorized, empowered and directed J. B. Lee, as the president of said board of regents of said Corvallis College, and James A. Cauthorn, as secretary thereof, to make, execute, and deliver this deed for, in behalf of and in the name of and under the corporate seal of said corporation, the party of the first part, and in pursuance of an act of the legislature of the state of Oregon, approved February 11, 1885, and entitled ‘ ‘An act to confirm the location of the state agricultural college at Corvallis, in Benton County, Oregon, and to provide for the maintenance and government thereof, and also in pursuance of another act of the legislature of the state of Oregon, approved November 21, 1885, and entitled ‘An act to amend an act entitled an act to confirm the location of the' state agricultural college, at Corvallis, in Benton County, Oregon, and to provide for the maintenance and government thereof,’” the said party of the first part has bargained, sold, aliened, released, conveyed, and confirmed, and by these presents does hereby bargain, sell, alien, release, convey, and confirm unto the said party of the second part, provisionally on behalf of the state of Oregon, that certain agricultural college farm situated in Benton County, Oregon. This conveyance ■was made in pursuance of the following proceedings had in the general conference of said church, to wit: September 3, 1884, the Columbia conference of the said church met at Dayton, Washington, and there was presented the action and report of a special committee of the board of trustees of Corvallis College, held at Corvallis, August 9, 1884, which committee had made a detailed statement of the condition of the title of the said college farm and recommended that the said property be conveyed to the state, if the legislature would materially assist in providing for the chair of mechanic art. There was also presented to the said conference the report of another special committee of the said board of trustees of the said college, held at the same meeting of the said board, recommending that steps be taken to erect a substantial brick building on the college farm. The conference thereupon resolved, “that the board of regents be urged to raise $25,000 in money or bona fide subscriptions for the erection of a college building on said college farm before the next session of the legislature. That in the event this amount cannot be raised, the board of regents is hereby directed to ask the legislature of the state at its next session to dissolve the compact existing between the board of regents of the Corvallis College and the state of Oregon, to take effect at the close of the present scholastic year. ” At a special meeting of the trustees of Corvallis College held January 29, 1885, it was resolved, ‘ ‘ that the mandate of the conference be complied with.” The annual session of the Columbia conference of the said church held at Albany, Oregon, September 10, 1885, adopted a resolution declaring in effect that no change should be made by the trus • tees of said college affecting its rights or standing as the agricultural college of the state of Oregon. After the tender of the college farm to and its acceptance by the state, the citizens of Corvallis and Benton county donated the necessary funds and erected a college building on the said farm of the value of §25,000. On the twenty-fifth day of April, 1887, a committee of the board of trustees of Corvallis College served a written notice upon the chairman of the building association of Corvallis and all concerned not to enter upon the agricultural college farm or to interfere with or encroach upon any of the property or rights claimed by said college.