McCallister v. Ross

MARSHALL, J. Ejectment to recover lot 62 in block 14 ias laid out on the original plat of the town of Washington, Mo. On the 27th of March, 1878, Albert Powell, for a consideration of one dollar, conveyed the premises in controversy to Masters Campbell, John A. Collins and Andrew MeCallister, in trust for the use and benefit of the1 Eirst Presbyterian church of the town of Washington. The deed recited that: “they, the said trustees and their successors, to have power of alienation in respect to the real estate herein conveyed only with the concurrence of two-thirds of the membership of said church for the time being.” The deed'also provided: “So that neither the said party of the first part nor his heirs, nor any other person or persons for him or in his name or behalf shall or will hereafter claim or demand any right to the aforesaid premises or any part thereof but that they and every of them shall by these presents be excluded and forever barred.” Thereafter a church was built on the lot, and the con — 91 — gregation became involved in debt to the extent of three hundred dollars for furnishing the church and providing benches therein. The plaintiff, at the request of the church congregation, paid this debt, and to secure him therefor Collins and MeCallister, 'as surviving trustees (Campbell having died and no successor having been appointed), on the 4th of February, 1888, executed, and delivered to plaintiff a note for three hundred dollars and secured it by a deed of trust upon the lot and the church building, and they recited in the deed that it was given 'by direction and authority of the members of the Eirst Presbyterian church of the town of Washington. After the "time the church was built the congregation worshipped therein until about 1881, when the p'astor, Mr. Watson, left them. Thereafter the church, which was known as the Southern Presbyterian church, joined the other Presbyterian church, known as the Northern Presbyterian church, and secured the services of another pastor. The two congregations worshipped in the two churches alternately until some time in 1889, since which time no services were, held in this church. Some of its members united with the other Presbyterian 'chureh, some joined other churches, some removed from Washington, and some drppped out. All the time, however, Mr. Collins, one of the trustees, kept the keys of the church, and upon application to and leave from him, this church was used in 1895 for a small Church entertainment. Albert Powell died, leaving as his heirs Mary Ross, Mattie B. Iman, Joseph O. Powell and William B. Powell. In 1884:, Joseph and William Powell conveyed an undivided half interest in the property to Mary Ross and George II. Ross. In 1897, the sheriff of Eranklin county acting as trustee, as authorized by the deed of trust to MeCallister, foreclosed the deed of trust, and the plaintiff, the cestui que trust in the deed, became the purchaser of the property — 92 — for the price- of one hundred dollars. The testimony shows that the property was worth from one 'hundred and fifty to two hundred and fifty dollars. The plaintiff then brought this action -against Ge-orge IT. Ross, who was in possession. Mary Ross and Mattie B. Imán and her husband were, upon their motion, made parties defendant. .The answer alleges the conveyance to trustees in 1818; that in 1884 the premises “ceased and hav-e become impossible to- be devoted to the particular object and purpose of said gift by said Powell, on the part of the Eirst Presbyterian church of the town of Washington;” the death -of Powell; their heirship; the conveyance to Mr. and Mrs. Ross by Joseph and William Powell of their interest; the execution of the note and deed of trust to plaintiff; the sale under the deed of trust to the plaintiff, and then avers that the congregation had abandoned the church several years before -the deed of trust was executed; that the deed -of trust was void for want of consideration, and that Collins -and MeCallister executed it to defeat the rights of -the heirs of Powell, and' without authority from the congregation and as surviving trustees they lrad no power to execute it, and the defendants a-sk a cancellation of the deed of trust, -and that the title be vested in them. The ease was thus converted into- one in equity, and was -so tried by the circuit court. That court entered judgment for the plaintiff, and defendants -appealed. Thus the plain-tiff claims under the deed of trust, while the defendants claim as heirs of Powell, under an -alleged abandonment by the congregation and -a failure of the purposes of the grant, and therefore a reversion ‘to the heirs of 'the grantor. If the deed of trust to the plaintiff was valid, then no subsequent -abandonment by the church could -affect the plaintiff’s rights or defeat his title -acquired under that deed. On tire other hand, if plaintiff’s deed of trust was invalid or insufficient to pas-s the title, then it is wholly immaterial in this case whether there was an abandonment or reversion or — 93 — not, and as neither the church nor the trustees are parties to this suit, the court would have no power in this proceeding to declare a reversion and vest the title in the defendants as prayed by them. There is 'absolutely no evidence to support the allegation that the note and deed of trust were without consideration. The contrary is time. They were given for exactly the amount the church owed the plaintiff, and are therefore honest and bona fide. The particular infirmities attributed to the deed of trust by the defendants are, first, the want of power in the two surviving trustees to make it, and, second, the lack of consent of two-thirds of the members of the church, without which consent the deed to the trustees gave 'them no power of alienation. As to the first objection, it is sufficient to sáy that at common law, where one or more of several trustees, died or resigned the trust devolved upon the surviving trustee or trustees, and it was held in Oxley Stave Co. v. Butler Co., 121 Mo. l. c. 638, that this has been the rule in Missouri ever since the decision of Scott, J., in Stewart v. Pettus, 10 Mo. 755, and that it'is not affected by our statute abolishing joint tenancy in certain cases. The same rule is laid down in Hill on Trustees, marg. page 308, and in 1 Perry on Trusts (5 Ed.), sec. 343. The surviving trustees in this case, therefore, had full power to execute the deed of trust. The evidence is conflicting, indefinite and vague as to whether two-thirds of the members of the church consented to the execution of the deed of trust. The burden of proving that they did not do so rested upon the defendants who challenged the truth of the statement in the deed of trust that it was executed by the authority and direction of the members of that church. The utmost that can be said of the evidence on this question is that the witnesses did not remember whether it was directed to be done at a church — 94 — meeting or not, that a meeting was called to see if they could raise the money, but if the deed of trust was directed to be executed, 'they were either not present or had forgotten the fact.. They all admitted they knew it had been done, and that the plaintiff had come to the relief of the church in time of need and paid off a pressing debt that had been contracted for necessaries, and that he had waited for years for his money before he received this security. The deed of trust was executed on the 4th of'February, 1888, and the congregation was then undoubtedly in existence, and using the property, and did not cease to use it until some tíme in 1889. The members of the church ratified the giving of the deed of trust by their acquiescence for over nine years before it was foreclosed, and even up to this time the record does not show -that they have ever disaffirmed it in any way or questioned it in any manner. The law presumes, until the contrary is shown, that every officer performs his duties. [State ex rel. v. Mastin, 103 Mo. 508; St. Joseph to use v. Farrell, 106 Mo. 437; Leonard v. Sparks, 117 Mo. 103.] It also presumes that every one, even though not an official, performs his engagements and duties, social as well as business: Mathias v. O’Neill, 94 Mo. 520 (in favor of a bookkeeper); Lenox v. Harrison, 88 Mo. 491 (in favor of 'an administrator) ; Agan v. Shannon, 103 Mo. 661 (in favor of an administrator); State ex rel v. Bank of Neosho, 120 Mo. 161; Bluedorn v. Railroad, 108 Mo. 439 (in favor of a switchman on a railroad); Chouteau v. Railroad, 122 Mo. 375 (in favor of a railroad company). And after a long lapse of time such presumptions may be indulged to supply deficiencies in a chain of title. [Dingee v. Kearney, 2 Mo. App. 515; Dickens v. Miller, 12 Mo. App. 408.) However it is useless to pursue the inquiry. The conveyance by the trustees recited that it was made by the direction and authority of the menrbers of the church. Those members are now estopped to deny that recital, and the de — 95 — f&ndants can mot be heard to object that th© trustees acted without such authority, for by the terms of their father’s conveyance to the trustees they 'are “excluded and forever barred” of all claim or right to the premises. The judgment of the circuit court was right and is therefore affirmed. All concur, except Robinson, J., absent.