Church v. Dart , 68 S.C. 221 ( 1904 )

March 15, 1904. The opinion of the Court was delivered by On the 16th day of April, 1903, his Honor, Judge Watts, heard the report of G.H. Sass, Esq., as one of the masters for Charleston County, S.C., together with the exceptions thereto filed, and also the testimony offered at the hearing before the master. The master had recommended that the complaint be dismissed. The said Circuit Judge sustained the said master in all respects, and adjudged that all the exceptions be overruled, and that the complaint be dismissed with costs. From this judgment the plaintiffs have appealed. The report of the master, the decree of Judge Watts, and the grounds of appeal should all be included in the report of this case.

We will now proceed to pass upon these grounds of appeal, and in order that our views may be better understood, we will give a brief summary of the facts upon which plaintiffs' contention is bottomed. The Calvary Baptist Church, a body corporate under the laws of this State, was the owner of a lot of land in the city of Charleston, S.C. whereon was located its meeting house used for divine worship, its parsonage, and also a shop, which last building was usually rented to outside parties. In some way this corporation owed a debt which in June, 1901, amounted, principal and interest, to $3,600. This debt was secured by a bond and mortgage of all the land of the corporation. The obligees of this bond and mortgage were W. Gibbes Whaley and Francis Hawksford, as trustees; the latter was in England at the happening of the events hereinafter mentioned. The trustees above named, the holders of the bond and mortgage, notified the church that some arrangement for the payment of this indebtedness must be made. The church had elected a body called its trustees, which trustees under Rule 7 were to "hold all property or properties of the church in possession, and shall collect such contributions that will enable them to defray all debts, such as repairing and other debts of this said church, at what time fixed by trustees." So when the threat to foreclose the mortgage held by W. Gibbes Whaley and another as trustee was made, the church called upon its trustees to look after the matter. Mr. Whaley, in one of his conferences with these trustees of the church, told them he would call to his aid a Charleston broker, Capt. T. T. Hyde, who reported to Mr. Whaley that the church and lot upon which it stood was worth about $1,000, and the parsonage and shop together with the balance of the land was worth about $1,100. Mr. Whaley, as trustee, offered to take the latter at $1,100, if the church would pay him $1,000 for the church lot. This proposition was declined by the trustees for the church, stating that they wished to keep all the property for the church itself. Soon another element was brought into these discussions. The Rev. John. L. Dart, who was then or had been just before pastor of what is known as the Morris Street Baptist Church, also of Charleston, S.C. attended with the trustees of the plaintiff church these conferences with Mr. Whaley. As a result of all these conferences, it was agreed that Mr. Whaley would take $2,100 for his debt of $3,600, and that the Rev. Dart would go $5 better than Mr. Whaley. A foreclosure of Whaley's mortgage by due legal proceedings was had. Altogether a friendly suit, consent decree. So on about the 2d July, 1901, the sale was made under the judgment in foreclosure. Mr. Whaley bid $2,100, Rev. J.L. Dart bid $2,105, and at that figure he was declared the purchaser. In a few days the purchase money was paid in cash by Dart, and the master delivered to him a deed for the whole property. Dart then wrote a letter to the church, asking that they pay over to him seven per cent. on $1,200 in monthly payments, $7 per month. He (Dart), when asked to give papers to the church, stated that he was just then going north, and that on his return to Charleston papers could be prepared. So, early in the month of September, 1901, Dart met the trustees of the church, and after some discussion all parties signed, sealed and delivered the following paper, to wit: "I hereby promise and agree to and with J.W. Smith, J.R. Prioleau, B.H.R. Reeder, R. Cuttino, A. Washington, trustees of the Calvary Baptist Church, a corporation, to sell and convey to them the building known as the Calvary Baptist Church, at the corner of Morris and Smith streets, this city, and so much of the lot of land upon which said building now stands as will measure and contain seventy-eight (78) feet on the north, also south lines, and fifty-five (55) feet on the east and west lines, on the following terms, etc.:

"1. That the trustees of the said Calvary Baptist Church corporation shall pay to me the sum of twelve hundred ($1,200) dollars, with interest thereon at seven (7) per cent. per annum, payable semi-annually from the date hereof.

"2. That during the time of purchasing the said corporation shall have the right to occupy the said church building; all insurances and necessary repairs to be paid for by the said corporation, and should they fail to do so, I shall pay for them and be reimbursed by the said corporation.

"3. That this agreement shall continue and be valued for a reasonable period of time, and should the said corporation ultimately fail to purchase the said church property, I shall not be held responsible for any payments made on account.

"In witness whereof, the parties hereto have hereunto set their hands and seals, this third day of September, 1901, (L.S.) J.L. Dart, J.W. Smith, J.R. Prioleau, Robert Cuttino, A. Washington, B.H.R. Reeder.

"Signed, sealed and delivered in the presence of Jos. A. Purcell, F.V. Cleckley."

The church, plaintiff, paid Dart $42 as the semi-annual interest; but when the next interest became due it refused to pay, alleging that Dart had bought the property really for the plaintiff; that he was now attempting to keep it for himself; charged that he was trustee for the plaintiff; that he was guilty of fraudulent conduct to the church; and that the trustees of the plaintiff church had no right in law or in morals to sign the paper with John L. Dart, on the 3d September, 1901; that the plaintiff, church, was willing to pay Dart principal and interest on $2,105 from July 2, 1901; but that Dart should reconvey the property to the church. An action was begun in the year 1902, by this church and its trustees, to procure the relief hereinbefore specified. Dart in his answer denies all the material allegations. The issues of law and fact were referred to G.H. Sass, Esq., as master, who took a good deal of testimony, sustains the defendant, and Judge Watts in his decretal judgment does also. We will now pass upon the exceptions in their order.

1. So far as the trustees of the plaintiff church are concerned, they do not hold any office in the spiritual concerns of such church. The only officers of a Baptist church are the pastor and the deacons. A Baptist church "is distinct from and independent of all others, having no ecclesiastical connection with any though maintaining a friendly intercourse with all. The government is administeredby the body of the members, where no one enjoys apre-eminence but each enjoys an equality of rights." See Hiscox's Baptist Church directory. But it is in the power of the plaintiff in the administration of its temporal affairs to employ agencies of its own choice, to give such agencies such power over its property as the church may see proper to do. In this particular instance, the plaintiff by its Rule 7 (which we have already quoted), saw proper to elect four trustees to manage its property. This church did not vest the title to its property in these trustees. Of course, it was at all times in the power of this plaintiff church to alter either by enlargement or restriction this control of its property by its trustees. Indeed, it could abolish Rule 7 at any time it saw proper. It was not possible for these trustees legally to assert any rights of their own. When any step was taken or contemplated by them, it was absolutely necessary that the church should clothe them with power. By virtue of their office as trustees, they could not buy or sell church property nor could they mortgage the same. If the church wished to clothe them with any such power, it had to proceed to do so in the way such powers are created by any other person or body. So, therefore, when these trustees signed this paper along with John L. Dart, unless the plaintiff saw proper to authorize it in the first instance or ratify it afterwards, it was mere waste paper. The defendant, Dart, saw this; hence he introduced testimony tending to show that this church ratified the action in its behalf of these trustees, being fully informed of their conduct. This is a question of fact. The master and Circuit Judge have both found that the church knew what those trustees had done, and after such knowledge ratified it. There is contradictory testimony in the record before us. We have felt ourselves bound to adopt the conclusion of the master and Circuit Judge, especially in view of the payment of the $42 as semi-annual interest on the $1,200 set out in the instrument under seal hereinbefore introduced.

2. We cannot hold the defendant, Dart, trustee, for the plaintiff, church, in view of our conclusion as to the paper writing referred to in disposing of the first exception. There is some ugly testimony in the record, however. We refer just here to the testimony of the Rev. D.J.

Jenkins, who on oath says he was willing to give $2,600 for the property and told the pastor, Smith, of the plaintiff church, of such willingness. Smith was a close friend of Dart. Smith prevailed on him not to bid for the property, as he wanted it bid in for the church. But Dart is not connected, by the testimony, with this chilling of bids or with this statement that the property was to be bid in for the church.

3. We think the judgment is right in holding a want of mutuality in the contract alleged by the plaintiff to have been made by Dart. Interest at seven per cent. was too precarious in purchasing property at the price of $2,105, when that was the full market value thereof. Deterioration, possible loss by fire, c.

4. We think our holding under first exception virtually disposes of this exception. We agree with the appellant that it was incumbent on the defendant to show that the agreement of the 3d September, 1901, was ratified by the church. But we hold that the testimony showed that the church did ratify it.

5. The testimony does not convince us that J.L. Dart was guilty of fraud in his dealing with the plaintiff church. He certainly made a payment for the property in cash, which was more, by a little, than Capt. Hyde as a real estate broker said it was worth. He (Dart) wrote to the church at once after he received his deed. He met the church trustees soon after his return to Charleston in the month of September, 1901. All things were then reduced to writing. He used all the property purchased, except the church, as his own from the date of the purchase. This was to be seen by all men. The church paid $42 as semi-annual interest thereafter. The rents of the parsonage and shop were $156 per annum. If they represented $905 of the $2,105 purchase, it was far beyond seven per cent. These people knew what these rents were.

6. The resolution adopted at the mass meeting of the plaintiff church in September, 1902, cannot throw much light on the happenings of 1901. Indeed, it is easy to fan a little dissatisfaction into a raging flame with these excitable people.

7. The facts recited in this exception are virtually included in our previous holdings herein, and we will not go over them anew.

8. Having made our views plain as to our inability to upset this settlement of differences between Dart and the plaintiff church, we cannot order Dart to reconvey the property to the plaintiff church, as pointed out and asked for in this, the eighth exception.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.