Nash v. . Sutton

Aveuy, J.: The statutes in reference to religious societies (The Code, ch. 54) provide amply for securing the title to lands once conveyed for a church site for the benefit of the people constituting the congregation that worship in it. The legal estate vests in the trustees to whom it may be conveyed for the use of a church, congregation, denomination or society, or “ in case there shall be no trustees,” then in the congregation, etc., respectively, according to such intent. § 3665. To the end that the higher Courts and governing corporate bodies of the various religious denominations may have the oversight of such property and manifest some interest in repairing, improving and using it, they are empowered to appoint trustees to hold property conveyed for the benefit of *553 particular congregations, on failure of those originally appointed, or where none are appointed, and also to hold such lands as may be donated, devised or bought for the use of such governing bodies. § 3667. If the plaintiff was appointed a trustee by a body of the denomination, which, as he alleged, was authorized to make such appointments, he would have the right to maintain an action before the proper tribunal to restore a lost deed, which conveyed land to trustees who have proved faithless to their trust and attempted to wrest property from the original beneficiaries and turn it over to others. AVhen a proper proceeding is instituted, the law is not powerless in the presence of any such fraud. It is not our province to know or decide judicially whether congregational government or representative government prevails in any given denomination. Where the authority is claimed for a body under their system of church government, such an allegation must be treated as true and acted on, if it be distinctly alleged and admitted by demurrer or otherwise. If the authority does not exist, the question of pow7er may be tried on an issue raised by an answrer. On the other hand, where, as a fact, there is no higher governing body in any denomination than-the congregation, every member has such a beneficial interest as would enable him, in behalf of his brethren and associates, to maintain an action to restore a lost title deed for the church at which he worships, and for the removal of trustees who have attempted to defraud their beneficiaries, and for the substitution of others or the adjudication that the title is in the congregation at large. The Code, § 185. The plaintiff brings the action as a trustee appointed by the association, and neither he nor any other member of'the congregation joins as equitable owners under the conveyance. If the action had been brought originally in the Superior Court at term time by the plaintiff in such capacity that he *554 could show himself a party in interest, as alleged, he would be entitled to set up the lost deed and have the faithless fiduciaries of his church removed. But when he elected to apply to the Clerk for the removal of the trustees, and for an order to procession the land, and likewise to set up a lost record, he could not on the hearing of an appeal involving the very question of jurisdiction, rightfully insist, according to the construction given by this Court to The Code, that the Judge should ignore a well-founded exception to the Clerk’s ruling, and dispose of all matters in controversy as if the summons had been returnable in term. Capps v. Capps, 85 N. C., 408. Neither does the later statute (Laws of 1887, ch. 276) apply in this case. The purpose of that act was to provide, in all cases where a special proceeding should be brought from the Clerk to the Court in term to pass upon an issue of lavr or try an issue of fact, that the higher tribunal might at its discretion pass upon without remanding any question involved in the controversy of which the Clerk might take cognizance, if the cause were sent back. But it was not contemplated by the Legislature that under its provisions a party who should be coram non judice before the Clerk, could take advantage of his own mistake or purposely make it in order to obviate a well-grounded objection to the jurisdiction, and secure by indirection what he could not obtain directly, a hearing before the Judge as a Court of original jurisdiction, just as if he had brought an action instead of a special proceeding. ^ If the plaintiff can establish the authority of the religious body under which he claims to act as trustee, to clothe him with the functions of that place, he can institute and maintain in the Superior Court at term an action to restore the lost deed and to have the faithless trustees removed, because if he is rightfully appointed the legal estate would vest in him under the statute (section 3667) upon either the death or removal of the original trustees to whom the land was *555 conveyed. On the other hand, as a member of a congregation, all of whom it is inconvenient to join, he may maintain an action under section 185 of The Code, if the system of government shall prove to be congregational, because the statute provides that the beneficial interest in lands given for churches shall at all events vest in the members of the congregation, and on failure of trustees, and when no provision is made for that contingency by a higher governing body, the legal estate (under § 3665) also vests in the congregation. There was no error therefore in the judgment of the Court sustaining the demurrer to the jurisdiction of the Clerk to restore a lost deed. Affirmed.