Richardson v. Harsha

DüNN, J. ( after stating the facts as above). The question for *418 us. to determine is whether or not the court erred in setting aside the findings of the master and his conclusions thereon. It is laid down in numerous decisions that, while a court is in nowise bound by the conclusions of law to which a master or referee arrives, his findings of fact are entitled to the same conclusiveness as a special verdict of a jury; and, where there is any testimony legally sufficient to support such findings, they will not be set aside. Greenhaw et al. v. Combs, 74 Ark. 336, 85 S. W. 768; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Rainwater-Bradford Hat Company et al. v. McBride et al., 3 Ind. T. 621, 64 S. W. 556; Hope v. Bourland, 21 Okla. 864, 98 Pac. 580. We have read the record with care and attention, have endeavored to give the proper probative value to the testimony contained therein, and, weighing the findings of fact made by the master by the evidence, it is our judgment that they are sustained thereby. There is but little dispute upon the facts which control in the case, and most of these we have set out in our statement. Upon the findings of the master and the undisputed evidence before us must the determination of this court be based. From these things, as is seen, it substantially appears that the Woman’s. Christian Temperance Union is an unincorporated voluntary association, existing in the city of Muskogee ; its purposes, as is generally known, being for the promotion and fostering of temperance and morality. As such an association, while it may not hold real property in its name, it has the power to appoint trustees in whom title to such real property as it may own may be vested. Colley v. Wilson, 86 Mo. App. 396; Liggett v. Ladd, 17 Or. 89, 21 Pac. 133, 24 Am. & Eng. Ency. of Law, pp. 360-361. Such is the doctrine generally laid down in the adjudicated cases wherein this question has arisen, and which is declared in the case of Liggett v. Ladd, supra: “Mere voluntary associations, however, can not take the title to real property in their society name, as they are not in law regarded persons, but it may be held for their use and benefit by trustees, and their right to the enjoyment of the property be secured in that way.” *419 Acting under this power, by resolution at one of its meetings, it agreed to accept, as a gift from Robert L. Owen, a portion of lot No. 1, in block No. 390, of the city of Muskogee, and in keeping with this resolution it took from him a conveyance of this property, and on it erected the two-story! building mentioned heretofore. The balance of the lot continued to remain the property of Robert L. Owen until he made an arrangement to convey the same to the Cumberland Presbyterian Church, which was put into possession thereof. The school district in which the lot was situated erectéd a building thereon, which was used by .the church, in conjunction with the school, for church purposes. There can be no doubt from the record, in this case that it was not the intention of the Woman’s Christian Temperance Union, when it went upon the land deeded it by Mr. Owen, to claim the balance of the property, in the same lot adversely to him or his assigns, and there can be no question but that it was .the understanding between all parties that the church should ultimately have the balance of the lot. This understanding would unquestionably have been carried out without friction had it not been that, at the time of the scheduling and appraisement of this property, the officers in charge of the same informed the president of the society that the balance of the lot could not be scheduled to Mr. Owen, nor for his benefit by reason, as was stated, of the conclusion on their part that he had at that time already scheduled to him all of the property within Muskogee permitted by Taw. Thereupon the president of the society had the same scheduled to herself as trustee for the said society. She was doubtless prompted to this by the belief that, did, she not do so, both Mr. Owen and the society would lose the property. Acting upon this, she had the entire lot scheduled to herself as trustee for the society, in due time receiving the patent therefor. In keeping with the previous arrangement, however, the society paid one-fourth of the appraisement upon the lot and the Cumberland Presbyderian Church, through Mr. Owen, paid three-fourths, and, in keeping with the previous ' arrangements, *420 Mr. Owen executed his deed of conveyance to the Cumberland Presbyterian Church, and the society of which Mrs. Har-sha was president passed a resolution that their trustee should likewise convey all of that portion of the lot not then held by it to the church. It appears from the evidence that Mrs. Spaulding was originally selected for trustee for the lot presented to the society by Mr. Owen, and, complying with the resolution, she executed the deed in question to the church, which was in possession of and occupying the lot at that time. So that it appears the society, Mrs. Spaulding, and Mr. Owen are all desirous of carrying out the previous arrangement with the church, and that the president of the society, who 'secured title to the lot in herself, as above set forth, alone is contesting the right of the church to the possession and title of the property. Under these conditions we will first inquire as to the status of the title and ownership of the portion of the lot claimed by the church. Property owned by an unincorporated, voluntary association belongs to the association. It belongs to the entity or the institution brought into existence by the association of the people constituting it. Such an organization is 'not a partnership or a corporation, although it has some of the elements of both. By becoming a member of it one takes an interest in the property owned by it, but bji leaving it he leaves this interest behind him in those who continue as members of-the organization. Scheller Commandery, etc., v. Jaennichen, 116 Mich. 129, 74 N. W. 458; Altmann et al. v. Benz et al., 27 N. J. Eq. 331; Ostrom v. Greene, 161 N. Y. 353, 55 N. E. 919. Hence we see from this that the president of the society in her individual capacity has absolutely no title whatever to this property; that the society as a body has the absolute right to control its disposition. Much space is devoted in the briefs of counsel in arguing the question as to whether or not a trust resulted for the benefit of Mr. Owen, and whether or not there was sufficient competent evidence to establish the same, and whether or not such relationship could legally be established, considering the hypothesis that more property had been scheduled *421 to him than he could lawfully take, but to our minds, this question is immaterial when we take into consideration the fact that this property did not belong to Mrs. Harsha. that she had no individual interest in it, but that it was either the property of Mr. Owen, or of the society, with herself as trustee. If it was, in fact, Mr. Ovren’s, then he had a right to direct its transfer and to' require her, as his trustee, to execute a deed to the same. If, as is contended by. counsel for Mrs: Harsha, it did not belong to Mr. Owen, but belonged to the society, then the society had a right to control it and direct its alienation, and it or its grantee would have a right on proper resolution, duly passed, to require its trustee to execute a deed of conveyance. Washburn on Real Property, vol. 2, § 1503. Trusts of the character established in Mrs. Harsha are what arc known as “simple or dry trusts,” and Mr. Washburn, in .the section of his work cited above, has this to say about the right of the ces.iui que trust to direct a conveyance on the part of his trustee: “Where it is a simple or dry trust, courts of equity will give the cestui que trust possession, or require the trustee to . convey the estate as the cestui que trust may direct. But a trustee can only be divested of his right of possession by a decree of a court of equity,. If trusts are passive, the cestuis qui trust, have a right to control the estate; if active, then the trustees. Passive trustees can. not recover the land from the possession of the cestui que trust or his assignee, and such cestui que trust may compel the trustee to convey the estate for his benefit.” Did not the conveyance from the society and Owen of their interest in the property to the church constitute Mrs. Harsha the trustee of the naked legal title for the church? If so, is it not clear that it coiild require her to make conveyance? In the case at bar the society, to the extent that it is possible, considering the attitude of its president, has conveyed all óf its title in and to' this property to the church. The property cost the society nothing. It had not a dollar invested in it. The church through Mr. Owen paid the appraisement, and if, as is seen, the society is the owner of it, Mrs. Harsha, its president, cannot deprive it of its inherent right of alienation. *422 Some objection is made to the validity of the resolution to 'bind the society, owing to the fact that but a small percentage of the membership of the order were present at the time of the resolution directing the conveyance was passed. There is no evidence in the record showing the terms of the by-laws or constitution of the society upon the question of a quorum. The evidence shows that the resolution was passed unanimously. We believe that, in the absence of any evidence showing the rule of the association, the law obtaining is as laid down in 2'3, Am. & Eng. Ency. of Law, p. 589, wherein it is held: “A body indefinite as to number may act by a majority of the members present at any legal meeting, no matter how small a proportion they may constitute of the whole number entitled, to be present.” ■ See authorities cited, note 2. A quorum is, to all intents and 'purposes, as much the body to which it pertains as if every member were present. From the evidence in this case it appears that but few members were in the habit of transacting business. For instance, there were but five present, as was shown by the evidence on the occasion of accepting the proposition made by Mr. Owen to deed to the society the portion of the lot owned by it. On the occasion that the resolution was passed under which Mrs. Spauld-ing made the transfer to the church, there were but seven present; and on the occasion of the approval of .the minutes of the meeting at which .this action was taken there were nine present. The membership of the organization was variously estimated to be from 20 to 1Q0, both of these being merely estimates. Under this view of the case, it is our judgment that the decree of "the district court should be reversed and set aside. The cause .is accordingly remanded to the District Court of Muskogee county, and the court is hereby directed to enter one in accordance herewith, under the provisions of sections 2638 and 2634 of the Annotated Statutes of Indian Territory for 1899. All the Justices concur.