Opinion
No. 42399.
November 12, 1951.
APPEAL FROM THE CIRCUIT COURT, DOUGLAS COUNTY, TOM R. MOORE, J.
John M. Bragg, Ava, for appellants.
James E. Curry, Ava, for respondents.
In this action by the Northside Church of God of Ava, Missouri, and representative members of its congregation against the Church of God of Anderson, Indiana, its Board of Extensions and Home Missions and certain named individuals alleged to be claiming the right and authority to act as Trustees of the Northside Church of God, the trial court has sustained a motion to dismiss the plaintiffs' amended petition. The court did not specify the grounds upon which the amended petition was dismissed but the motion which the court sustained recited the reasons "that the cause of action which the plaintiffs are attempting to plead is not equitable in nature, but instead, if there is any cause of action at all, it is in law, and for that reason this court is without jurisdiction to grant a mandatory injunction as requested; and for the further reason that the amended petition does not state a claim upon which relief could be granted." It is assumed by both the appellants and the respondents that jurisdiction of the appeal, in the constitutional sense, is in this court for the reason that the case involves "the title to real estate." Const. Mo., Art 5, Sec. 3. But jurisdiction may not be conferred by the parties and the court must, of its own motion, determine the fact of its jurisdiction, in this instance whether the action in fact involves the title to real estate. Simmon v. Marion, 358 Mo. 888, 217 S.W.2d 537.
After alleging the relationship of the parties the petition alleges that in January 1928 the real estate upon which the church and parsonage are located was conveyed to trustees and that the plaintiffs as members of the congregation have expended sums of money in erecting the buildings and in keeping them in repair. The plaintiffs allege, in accordance with the provisions of the deed, that "they have to the best of their ability maintained fellowship and doctrinal unity" and adhered to the creed and faith of the church and are members of the congregation entitled to worship in the church and have complied in all respects with the mandates of the warranty deed. They allege, however, that the individual defendants, purporting to act as trustees and under the guidance and direction of the parent church, "have closed the doors of said Church building, placing a lock thereon, and have forbidden the use of the same by these plaintiffs, that by word of mouth they have publicly announced that said real estate was for sale and are now seeking purchasers for the same, * * *." The plaintiffs allege that they have not consented to the closing and locking of the church or to its sale. They allege that they have never been complained against by any ecclesiastical body of the church of having violated the terms of the deed or of the tenets of the church. It is alleged that "if the defendants are permitted to keep said Church building closed and prevent the holding of religious worship therein, that they and all the members of the congregation will suffer irreparable injury, and that said injury will result if the defendants are permitted to sell and bargain said Church building away; that these plaintiffs have no adequate remedy at law, other than the injunctive power of this Court; that the plaintiffs will suffer irreparable injury, unless the defendants are ordered and directed forthwith to open the doors to said Church building, that the defendants will prevent the holding of religious services therein, unless directed by the Court to do otherwise, that the defendants will sell and bargain away said real estate, unless enjoined and prohibited by this Court." The prayer of the petition is that the defendants be "restrained, enjoined and directed from preventing the holding of religious services in said Church building, that they be restrained, enjoined and directed to not sell the real estate herein described" and that the sheriff be directed to unlock the church doors so that religious services may be conducted.
In their brief the appellants contend that the respondents have "deprived these appellants and those for whom they sue of certain property rights in and to said real estate" and that "the civil courts, where property rights are involved, have the authority to make inquiry and even go so far as to examine the articles of faith of a church organization to determine whether or not the property rights have been wrongfully converted" and that a mandatory injunction is the appropriate remedy. They argue in this connection that they "have kept in fellowship and doctrinal unity with the faith" of said church and are entitled to a notice and hearing before some church tribunal upon the question of whether they have failed or refused to carry out the mandates of the deed and whether they are out of fellowship and doctrinal unity with the church. The respondents argue that the appellants are claiming some interest in the real estate and that the crux of the lawsuit is the construction of the deed. Upon the merits the respondents brief and argue the proposition that "Equity will not by injunctive process transfer possession of property where the right of title thereto is in dispute since it will not try the question of the right to title by injunction, which must be settled by an action at law."
It may be necessary to construe the deed, Ashauer v. Peer, 346 Mo. 218, 139 S.W.2d 991, 993, and it may even be necessary to ascertain title for the purpose of rendering the appropriate judgment, so that title could be incidentally or collaterally involved, Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882; Motchar v. Hollingsworth, Mo.Sup., 162 S.W.2d 805, 807, but title to real estate was not adjudicated and is not directly involved upon this appeal. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 773. The essence of this action is the plaintiffs' right to an injunction, not the title to the real estate. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 11, 40 S.W.2d 545, 550. This is not to say that a suit for an injunction may not involve the title to real estate if title is in fact made an issue in the case and is decided by the court. See and compare: Bryant v. West, Mo.App., 190 S.W. 95, Id., Mo.Sup., 219 S.W. 355; Stough v. Steelville E.L. P. Co., Mo.App., 196 S.W. 37, Id., Mo.Sup., 217 S.W. 515. But it is to say if, as appears here, the main purpose of the action is to establish rights under and in compliance with the terms of a deed and to enforce those rights as between the contending factions or church trustees by injunction that the action does not involve the title to real estate in the constitutional jurisdictional sense. Clevenger v. McAfee, Mo.Sup., 165 S.W.2d 411; Wuertenbaecher v. Feik, Mo.Sup., 36 S.W.2d 913; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529. The value of the property is not in controversy and does not appear upon the record. Rombauer v. Compton Heights Christian Church, supra. The case does not involve the title to real estate and the appeal is therefore transferred to the Springfield Court of Appeals.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.