Greek Catholic Church of the Transfiguration of Christ v. Hunau ( 1923 )

Mr. Justice Denison

delivered the opinion of the court.

The plaintiff in error was plaintiff below, was defeated in a suit to recover possession and control of certain church property in Denver, and comes here on error. The court found generally for defendants. The judgment must be affirmed.

In September, 1898, the plaintiff church was incorporated under the laws of this state. There is evidence that it was the intention of the incorporators to put themselves under the Greek Catholic Church, subject to Rome, and there is evidence that it was incorporated as an independent church. Apparently that meant that the corporation did not acknowledge the authority of the Roman Pope, nor that of the head of the Russian Church. See Greek Catholic Church v. Archbishop, 67 Colo. 217, 184 Pac. 295, 18 A. L. R. 690. About 1902, plaintiff applied to the Roman Catholic Bishop of Denver for a priest, but he declined to assign one while they remained independent. They thereupon applied to the Russian Greek Orthodox Catholic Bishop in San Francisco, obtained a priest, and from that time they have been supplied with priests of that church.

January 14, 1905, the congregation and the trustees of the plaintiff church voted to convey the property to Rt. Rev. Tikhon Bellavin, “as Bishop of the Russian Greek Orthodox Church of North America and his successors,” * * * “for the expressed consideration of five dollars and other considerations,” and on February 8th, 1905, a conveyance reciting these considerations was made accordingly. By deed dated August 7, 1909, Tikhon Bellavin as Bishop as aforesaid conveyed to “Platon Roizdestvensky, Archbishop of the Russian Orthodox Catholic Church of North America and his successors and assigns,” and in 1914, he conveyed to defendant Alexander Nemolonsky, Bishop of the Russian Orthodox Catholic Church of North America and his successors and assigns,” who conveyed to defendant Hunau by warranty deed to secure a loan which has since been paid and the property reconveyed. No question was raised till in 1921 the defendant, Bishop Nemolonsky, refused to remove an unsatisfactory priest, and the difficulties in connection with that matter led to the present suit.

The position of the plaintiff is that the fact that the conveyance was to Bishop Bellavin as Bishop, etc., was a sufficient indication of a trust to permit parol'evidence of the terms thereof, under Johnson v. Calnan, 19 Colo. 168, 34 Pac. 905, 41 Am. St. Rep. 224, and Waterbury v. Fisher, 5 Colo. App. 362, 38 Pac. 846, and that those terms in-eluded the right of the corporation to control the employment of its priests, of which they gave parol evidence, and the right to remain Greek Catholic under the Pope, where plaintiff claims the corporation was originally intended to be; but, conceding that this argument is sound, even to the extent claimed, the evidence of the resolution of the corporation, and the deed to Bishop Bellavin itself, is at least as strong in support of the defendant’s claim that it was intended to put the property in the control of the Russian Church as is plaintiff’s parol evidence of its claim, and, since the court found generally for defendants, we must presume that it found such intention. In view of the fact that this intention was apparently acquiesced in for eighteen years we do not see how the court could reasonably have found otherwise.

Plaintiff in error insists that the plaintiff’s trustees and congregation had no power to divert the temporalities from their original purpose, whether that purpose was to be Greek Catholic or independent, and cites Baptist Society v. People’s Church, 64 Colo. 574, 174 Pac. 1118, 8 A. L. R. 102. That case holds that a mere majority of the members cannot do so; but in the present case it does not appear that the congregation was not unanimous; the temporalities and service have been under the control of the Russian Church for eighteen years, and, as shown above, the intention of the trust is found to be for the Russian Church.

It is claimed that the mortgage to Hunau was a breach of trust. Whether this claim would be sound if the trust were as claimed by plaintiff or not, plaintiff is not injured by the mortgage because we must suppose that it is a trust for the Russian Church, and that church is not complaining.

Judgment affirmed.

Mr. Chief Justice Teller and Mr. Justice Whitford concur.