Young v. Knox , 165 Ark. 129 ( 1924 )

Hart, J.,

(after stating the facts). The title of appellees, who are plaintiffs in the court below, is founded upon the adverse possession of themselves and the local congregation of the Cumberland Presbyterian Church at Paragould, Arkansas, for. a period of more than seven years. The statute of limitations as to real estate is founded upon public policy. It is a statute of repose, and intended to quiet titles, and operates in favor of or against religious societies as "well as natural persons or private corporations.

This court has held that the trustees of a church or (¡religious society may lose title to ¡real property by ,adverse possession. Gee v. Hatley, 114 Ark. 376. It is equally well settled that the trustees of a religious society may acquire title to real property by adverse possession. Camp v. Camp (Conn.) 13 Am. Dec. 60; Dangerfield v. Williams, 26 App. D. C. 508; Curd v. Wallace (Ky.) 7 Dana 190, 32 Am. Dec. 85; University of Maryland v. Calvary M. E. Church South (Md.), 65 Atl. 398; Rehoboth v. Carpenter (Mass.), 23 Pick. 131; Reformed Church v. Schoolcraft, 65 N. Y. 134; Society for Propagation of Gospel v. Sharon, 28 Vt. 603; and Davis v. Owen (Va.), 13 L. R. A. (N. S.) 728.

The decisions of the courts cited above, ■ as well as many other decisions from this court, have determined the character of the possession which will bar the right of the former owner to recover real property. It must be an open, visible, continuous and exclusive possession with claim of title, -so that parties seeking information upon the- subject might find out that the property was not held under the permission of any one, but adversely to every one.

Tested by this familiar and well established rule, it cannot be said that the finding of the chancellor is against the preponderance of the evidence. It is the uniform rule of this court to uphold the decision of a chancellor upon a question of fact, unless it is against the clear preponderance of the evidence.

According to the witnesses for appellees, they were elders in the Cumberland Presbyterian Church at Paragould, Arkansas, and were trustees for it. They were present when the G-eneral Assembly of the Cumberland Presbyterian Church and the Presbyterian Church TJ. S. A. voted to unite. One hundred and six members of the General Assembly of the Cumberland Presbyterian Church dissented, and immediately held an assembly of the Cumberland Presbyterian Church. The local congregation of the Cumberland Presbyterian Church at Paragould immediately joined the dissenters, and continued to occupy their local church. They say that they had exclusive possession of it, and have never permitted any one connected with the Presbyterian Church TJ. S. A. to exercise any control or dominion whatever over it.

It appears that they recognized that the legal title to the church property was in the Presbyterian Church TJ. S. A. under the decision of this court in Sanders v. Baggerly, 96 Ark. 117; but they denied that this church had any rightful title to the property. In other words, instead of their occupancy being permissive, it was hostile to the rights of the Presbyterian Church TJ. S. A. They had the exclusive, continuous and hostile possession of the church for more than seven years, according to their testimony, and acquired title to the church property by adverse possession.

It is true that their testimony was contradicted by two members of the Presbyterian Church TJ. S. A. and by the collector of a paving district; but, as above ■stated, it cannot be said that the testimony of these witnesses shows that the finding of the chancellor is against the preponderance of the evidence.

It is also contended that appellees are not the proper parties to maintain this suit. Knox, itosson and1 McDonald all stated that they were elders in the church and represented the local congregation of the Cumberland Presbyterian Church at Paragould.

Our statute provides that the trustee or trustees for the time being of any religious society shall have the same power to defend and prosecute suits at law or in equity, and to do all other acts for the protection, improvement and preservation of • said1 property, as individuals may do in relation to their individual property. Crawford & Moses’ Digest, § 8638.

In the case of Gee v. Hatley, 114 Ark. 376, the trustees and elders of a Presbyterian Church brought suit to recover possession of a part of the church property, and it was held that they might maintain the action.

It follows that the decree must be affirmed.