First Methodist Church v. Berryman.

conference, and that Spaulding was not president of the board of trustees at the time the deed was ex

Trustee.

ecuted, and that Hargrove was not notified of the meeting of the quarterly conference or board of trustees, and that the order of sale was not made in accordance with the laws, customs and usage of the church, and the sale was unauthorized and void. Counsel say the quarterly conference consisted of eleven stewards and seven trustees. (This statement is undisputed). They say also that Hargrove was one of the trustees. If Hargrove was not one of the trustees, the order of sale was made by a majority of the quarterly conference.

Hargrove had not formally withdrawn from the church or resigned as a trustee thereof. For several years he had resided on his farm, eleven miles from Poplar Bluff, and attended divine services and contributed financially to the support of a church on his farm. He had notified one of the stewards, William Strothers, collector for the church, that he would be unable to make any further payments, and that he would have to use his funds to take care of the church on his farm. He had not attended church services more than once or twice at Poplar Bluff in the year preceding the sale. Dr. Yount testified that he did not see Hargrove at any service of the church during his pastorate. Although nominally a member of the board of trustees and the quarterly conference, he was not in fact a member of either body and should not be so considered in the determination of this case. Dual membership is not recognized; he had abandoned his office of trustee in the church at Poplar Bluff. Dr. Spaulding was elected president of the board of trustees in June or July, 1918, and thereafter acted as such, but the minutes of the meeting at which he was elected had been lost, in consequence of which a record was made of his election on August 20, 1918. All of the members of plaintiff's board of trustees, including Dr. Spaulding as president, and Dr. Smith as secretary, executed the deed in question under the corporate seal of the church, to the defendants. Without further setting out the evidence, it is

First Methodist Church v. Berryman.

clear beyond controversy that the six trustees above named were the actual incumbents, the de facto, if not de jure, trustees and officers of the plaintiff, and were discharging the functions of such offices at the time of the negotiations for and the sale of the church property to the defendants, and were so held out by the plaintiff to the defendants. No one disputed the title of either one to his office. Their titles to the offices of trustees are not subject to attack in a collateral proceeding. [34 Cyc. 1133.] Moreover, we think it clear under the evidence, that Dr. Yount, the pastor, when presiding at the request and in the absence of the district superintendent, had authority, in his stead, to consent to the order of sale. However, as the property had been conveyed directly to the corporation, without the intervention of trustees, an order of sale by the quarterly conference was unnecessary to authorize the trustees to execute the deed of conveyance. [See Sec. 361, Book of Discipline, supra.]

II. The deed sought to be cancelled conveyed the property in trust to the defendants as a place of divine worship for the use of the ministry and membership of the Methodist Episcopal Church, South, subPious Use. ject to the discipline, usage and ministerial appointments of said church. This was not a diversion or abandonment of the charitable and pious use for which the property had been conveyed to the plaintiff. [Strother v. Barrow, 246 Mo. 241, 151 S. W. 960; Musser v. Musser, 281 Mo. 649, 666, 221 S. W. 46.] The deed was executed by persons purporting to be the proper officials of the plaintiff corporation and under its corporate seal. The certificate of acknowledgment is in the by Corporation. form prescribed by Section 2188, Revised Statutes 1919, in the case of a conveyance by a corporation. It is therefore prima facie a good and sufficient conveyance by the corporation. The trustees are presumed to have acted regularly and lawfully and the burden is on the plaintiff to prove that the persons executing the deed exceeded their authority in the prem

Conveyance

First Methodist Church v. Berryman.

ises. [McCallister v. Ross, 155 Mo. 87, 94; Strother v. Barrow, 246 Mo. 241, 257, 151 S. W. 960; Dudley v. Clark, 255 Mo. 570, 589.]

Fraud.

III. Without reciting the evidence of the numerous witnesses for the defendant, it suffices to say that it establishes the facts pleaded in the answer and cross-bill. The fraud relied on by the plaintiff is that the sale was made in furtherance of a conspiracy between the defendants and the pretended officers of the plaintiff for the purpose of transferring the membership and property of the plaintiff to the use and benefit of the Methodist Episcopal Church, South, in disregard of the laws, customs and usages of the Methodist Episcopal Church. Both ecclesiastical organizations have the same articles of religious faith. The Methodist Episcopal Church, South, owned no church building. The officers of that church agreed to pay all of the plaintiff's debts, take over its house of worship and dedicate it to the same pious use to which it was theretofore devoted. It was not shown that the union of the two local churches was contrary to the policy, laws, customs or usages of the Methodist Episcopal Church. On the contrary, it was shown by. Dr. Campbell, district superintendent, plaintiff's witness, that several unions of local churches of the two denominations in this State have been effected. It is a matter of history that the Methodist Episcopal Church was disrupted in 1844 over the question of slavery and that for many years earnest efforts have been and are still being made for healing that unfortunate breach. There was an entire failure of proof that the union of the two local churches was a condition of the sale or that such union was or is contrary to the policy, laws, customs or usage of the Methodist Episcopal Church. The coalition depended upon the will of the individual members of the Methodist Episcopal Church. The evidence was that it was earnestly hoped and believed by the officers of each church that such union would be consummated and that it was the judgment of all parties participating in the nego

First Methodist Church v. Berryman.

tiations that a sale of the property was for the best interests of Methodism, with the expectation that the two congregations would unite in one common fellowship.

This anticipation was realized. Nearly all the members of the Methodist Episcopal Church affiliated with the other fold. From two small congregations, one unable to function or pay its debts, the united body at the time of the trial had grown to a membership of 729. Peace and harmony have ever since prevailed and they may say with commendable pride: "Behold, how good and pleasant it is for brethren to dwell together in unity." The accusation of fraud is without justification, palliation or excuse in the evidence.

Cancellation.

IV. Possession of the church property was at once delivered. That is averred in the petition. Such a thing. could not have been done in a corner. The Annual Conference of the Methodist Episcopal Church seemed to have had notice of and acquiesced in the transaction, as no pastor has since been assigned to that charge. The first note of dissent appears to have been sounded by the district superintendent more than four months after the deal was closed, when he summoned the defendants to meet him and told them that he had not given his assent to the sale. He did not protest against the sale as being fraudulent or contrary to the policy of the church, but announced that he would consent if they would pay an additional $5000. This was declined. He admitted that he read a notice of the sale within two weeks after it occurred. He was succeeded by another district superintendent on October 1, 1919, after which the latter consulted an attorney and this suit was begun May 7, 1921, but by whose authority it does not appear. The six trustees who executed the deed and had exclusive charge of the secular affairs of the church were witnesses for the defense, and testified that the sale was the only thing they could do, that it was made in good faith and without objection, so far as they knew, and was for the best interest of Methodism.

First Methodist Church v. Berryman.

The plaintiff's case does not appeal to a court of conscience. The title, it is true, was in the plaintiff corporation, but for the use and benefit of the members who, no doubt, had furnished the money for the purchase of the lot and the erection of the building. The plaintiff acquiesced in the sale; it stood by and permitted nearly the entire membership, on the faith of the sale, to affiliate with the other fold. The church building was and still is their home, their place of public worship. The new fellowship, perfected with so much unanimity and concord, should not be broken or disturbed or deprived of its house of worship on a stale claim based on an empty technicality. The plaintiff is estopped by its acquiescence to prosecute this action.

"In arriving at a proper judgment, it will be well to remember that when one seeks to cancel his solemn contract on account of the fraud of the other party, no halfhearted, halting, evasive evidence will answer; his proof must be 'so clear, definite and positive as to leave no reasonable ground for doubt.' [Jackson v. Wood, 88 Mo. 76, 78.] 'In general, the cancellation of an executed contract is an exertion of the most extraordinary power of a court of equity, which ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear.' [Cohron v. Polk, 252 Mo. 261, 281.]" [Bragg v. Kirksville Packing & Warehouse Co., 205 Mo. App. 600, 604, 226 S. W. 1012, 1013. See, also, McConnell v. Deal, 246 S. W. 594, 597.]

The right to rescind a contract on the ground of fraud must be exercised promptly on the discovery thereof. [Taylor v. Short, 107 Mo. 384, 392; McCaw v. O'Malley, 249 S. W. 41, 45.]

Restoration.

V. The plaintiff prosecutes this action without an offer to return the money paid by the defendants. Plaintiff cannot retain the money paid on delivery of the deed and proceed in disaffirmance thereof. It must make restoration or offer to do so. Retention of the purchase money is an affirmance of the