Bushong v. Taylor

Sherwood, J.

This was a proceeding in equity and irvrem. Its object was to subject certain church property of the Methodist Episcopal Church to the payment of a. sum of money which became due to the plaintiff, because of a loan made by him to the trustees of that church,, for which loan a note was executed by the trustees to' plaintiff for $1,250, and a like note to Newkirk, and the' board of trustees, also, ordered that a mortgage on the' church property be executed for the purpose of securing' these notes, but the mortgage was never made. The plaintiff’was successful in the trial court in subjecting the church property to the payment of his debt.

The evidence fully sustains the result reached by the trial court, and, although this is an equity case, even if the evidence were not as clear in some particulars as it is, we should not feel inclined to disturb the finding, as it is our custom somewhat to defer to the trial court, which always possesses those advantages which are derived from, having the personal presence and observing the demeanor of the witnesses when testifying. This has been hitherto our uniform course, and we have refused to interfere with the conclusions reached by the trial courts on mere matters, of fact, unless it readily appeared such conclusions were' incorrect. The matters of fact arising on this record, being; thus eliminated from our consideration, we address ourselves to those questions of law which arise upon the pleadings and the facts established by the evidence.

I. In respect to the allegations of the petition, we-regard them as sufficient, and that the sufficiency of those allegations is fully sustained, and the nature of the relief; *667 sought, warranted by the case of Linn v. Carson, 32 Gratt. 170 , which in essential incidents and circumstances, is substantially identical with the case at bar. In that case, Carson advanced money to the congregation to assist in building a church for the same denomination as that to which defendants belong, and governed by the same books-of discipline, and the court of appeals of Virginia, in a well considered opinion, held that as the discipline of the church authorized sums of money, thus advanced at the instance of the trustees of the church, to be re-imbursed by a mortgage or sale of the church property, that a court of equity,, at the suit of the party advancing such sums of money, would subject the church property to sale, for the purpose-of satisfying the claim.

II. Contention is made by defendants, that the trustees were not the proper persons to contract, and that their contract possessed, as against the church property, no obligatory force; that this power belonged to the Quarterly Conference. This view we regard as unsound. Under the terms of the discipline it is provided that conveyances of real estate for the erection of houses of worship, shall be in trust, to be used, kept, maintained and disposed of, as a-place of divine worship, etc., subject to the discipline, usage- and ministerial appointments of said church. Sec. 378, par. 5, ch. 3. And paragraph 370 of the'same chapter provides for a “ board of trustees,” for the church property,, which board is to be elected, nothing in the local law forbidding, by the 4th quarterly conference of the circuit or station. Par. 372.

And by the terms of paragraph 374 of that chapter, if the trustees or any of them, or their successors, have advanced or are responsible for any sums of money on account of building a house of worship, or are obliged to pay such sums of money they are authorized either to mortgage or to sell the premises, after notice given to the pastor, etc. Paragraph 377 requires that the board of trustees of each circuit or station, shall hold all the church property. It is- *668 true paragraph -381 provides that when it becomes necessary that a sale of the church property for the payment of ■debts, or with a view to re-investment occurs, that then the trustees may obtain an order for the purpose from the ^quarterly conference, but this section evidently does not relate to circumstances provided for in paragraph 374, where the trustees have advanced or become responsible for a sum ■of money for building a church as in the case at bar. In .such circumstances, the power of the trustees is full, ample .and complete., .either to sell or mortgage the church property. And where a power of sale exists in a trustee or trustees, a court of equity may enforce a sale for the payment of the debt, and this is of common occurrence in cases of ordinary trust deeds, and a fortiori, where the trustee proves recalcitrant, and- fails to exercise the power given him. No case .appears to have been found where the point of the power of trustees to charge the church property has been directly passed upon, but several instances have occurred where such powers have passed unchallenged and formed the basis of judgments of courts of last resort. Trustees M. E. Church v. Shulze, 61 Ind. 511 ; Linn v. Carson, supra; Price v. M. E. Church, 4 Ohio 515 ; Trustees M. E. Church v. Garvey, 53 Ill. 401 ; Van Houten v. Dutch Church, 17 N. J. Eq. 126.

This appears to have been the construction given to the discipline by this particular society, as evinced by numerous acts of its trustees. But granting, for argument’s sake, that the trustees had no such powers as those above detailed; granting that the acts of the trustees in order to -charge the church property, must have received the sanction of the quarterly conference, has not this sanction been ■obtained? We think it has, in a variety of ways. The whole matter of the trustees giving the notes was laid before the quarterly conference the next year, 1868, and then the action of the trustees was as fully confirmed as was possible for it to be. Since that time and for a number of ;years, the hoard .of trustees, as well as the quarterly con *669 ference, has recognized the notes given as a church debt,, by listing them as such in the reports made by the trustees to the conference, and by paying the- note executed by Newkirk in full; and it was not until 1874 that the quarterly conference struck the note of plaintiff out of the church debts. So that, so far as concerns the disposition of the present cause, it makes no matter in which body was lodged the power essential to charge the church property.

III. The trustees did not add the designation of their-office to the signatures to the promissory notes. This is-explained by evidence showing that the notes were to be placed in bank in order to raise money, which required the-signatures to be made individually. Nevertheless, as between the signers and the church, the notes were the obligations of the church. The church in question was an unincorporated, voluntary association and the trustees, both according to the discipline and the acts of ratification already mentioned, -were the agents of that association, and, therefore, could hind such members of the association, as sanctioned the acts of the trustees, the liability of the-association depending for its validity upon the act done, rather than on the form in which the act finds expression. Ferris v. Thaw, 72 Mo. 446 , and cas. cit.; De Voss v. Gray, 22 Ohio St. 159 ; Chick v. Trevett, 20 Me. 462 ; Keller v. Tracy, 11 Iowa 530 . And looking to the character of the-organization and the nature of the government of the M. E. Church, it would seem clear that the trustees are the-agents of the aggregate body of members, at least, so far as is necessary to upholding the relief sought for in this case, and that any member who unites with the association, under and subject to the discipline, thereby of necessity, gives-to such trustees authority to act for him within the meaning of the book of discipline, to the extent of his beneficial interest in the property owned by the association, and that, in consequence of this, any debt contracted by such trustees-on account of the premises, will be the debt of the members,, so far as concerns their beneficial interest, and to the extent. *670 of such interest held by the trustees, and it cannot be tolerated that such an association could so convey its property as to place it beyond the reach of a court of equity enforcing the claims of its creditors. This has been so ruled even where the association was incorporated. Magie v. Church, 2 Beas. (N. J.) 77.

IV. Now as to the method of procedure for enforcing the obligation created by the trustees of the church. We are of opinion that the trustees were the only necessary parties defendant. They were selected by the association to hold and manage the property for the sake of convenience, and there is no necessity to look beyond them. Besides, the cestuis que trustent are so numerous and so constantly changing by death, removal, etc., beyond the jurisdiction, that it would be intolerably oppressive and practically impossible to bring in all the beneficiaries. In such circumstances it is allowable to proceed against the trustees alone. Van Vetchen v. Terry, 2 Johns. Ch. 197 ; Story Eq. Pl., §§ 148, 150, 207a. As stated at the outset, this is a proceeding in rein, its only object being to charge the beneficial interest of the members of the church, which was vested in the trustees in accordance with the terms of the discipline.

The trustees were empowered by those terms to mortgage or sell the church property in discharge of debts for which they had become responsible. They have failed to perform their duty in this regard to the plaintiff, and the arm of the court of equity is not too short to reach them and compel a performance of that duty. Indeed, it may be taken for granted that plaintiffs incurred the debt for the benefit of the society and with their approval, relying upon the assurances contained in the book of discipline, and on the promise made by the trustees that a mortgage should be executed to secure the debt. Linn v. Carson, supra , sustains this position. And it is immaterial that in that case the plaintiff was one of the trustees of the church; for the plaintiff here was a surety for the trustees, and they .being entitled under the terms of the discipline to a mort *671 gage on, or sale of, the property, concerning which the debt was incurred, he will on the plainest and most familiar principles be entitled to be subrogated to all their rights and remedies. 1 Story Eq. Jur., §§ 499, 499e, 502; Furnold v. Bank, 44 Mo. 336 . The trustees being entitled to mortgage or to sell the property, and refusing to do their duty, equity will afford relief by decreeing that to be done which affords the adequate remedy.

V. Relative to the statute of limitations pleaded in defendants’ answer, plaintiff’s cause of action never arose till 1877, when he paid the debt of his principals, the trustees, by satisfying the judgment which Newkirk had .against him and this suit was brought in 1879. Hearne v. Keith, 63 Mo. 84 . And the deed of trust and note given by plaintiff’ and accepted by Newkirk, in satisfaction of the judgment, was tantamount in law to a payment thereof. Witherby v. Mann, 11 Johns. 518 .

VI. No objectionis discovered to the amount of the judgr •ment. The note to Newkirk and the judgment recovered upon it bore ten per cent interest; and the settlement between plaintiff and Newkirk was in 1877, up to which time the court allowed ten per cent interest and after that date -.the usual rate.

Eor these reasons we affirm the judgment.

All concur.