Tunstall v. Wormley , 1881 Tex. LEXIS 49 ( 1881 )

Quinan, Commissioner.

It is insisted by the appellant that his exceptions to the plaintiff’s petition should have been sustained; that the “ Missionary Baptist Church ” was never so organized as to become a corporation capable of holding property, of suing and being sued. It is contended that the act of 1845 concerning churches (Pasch. Dig., art. 483), was repealed by the general incorporation law of 1814, p. 139. That law purports to repeal only those provisions of the former laws which were in conflict with it. It provided that religious societies might become bodies corporate under that act, and have all the powers and privileges, and be subject to all the restrictions, contained in it. It does not specially repeal the former law, but provides, as that law did, for the election of trustees for the management of the secular affairs of such societies. The old law was imperfect and very general in its terms. The law of 1814 is full and ample. It seems very clearly to have been designed to embrace and regulate the organization, powers and privileges of private corporations of all sorts. It provides that religious societies may have and file their charter, defining their objects and purposes, as other corporations, in the office of the secretary of state, and not in the county clerk’s office. There is no power or capacity which under the old law was conferred upon churches, which is not provided for and regulated under the later law. And though the repeal of a law by implication is not favored, we think that under the well established rule that a subsequent statute revising the subject matter of a former one, and evidently intended as a substitute for it, must operate as a repeal of the former, we must hold that the act of 1845 is superseded by the general law concerning private corporations. It was manifestly, in our opinion, intended to prescribe the only rules which should govern in such cases, and as a substitute for the old law. Rogers v. Watrous, 8 Tex., 64; Bryan v. Sundberg, 5 Tex., 423; Cain v. The State, 20 Tex., 370; Sedgwick on St., 104.

It follows that as the petition of the plaintiff in this case shows that the Missionary Baptist Church of Brazoria was never organized under the provisions of the act of 1874, that no charter was drawn up for it or filed in the office of the secretary of state, it did not form a “private corporation; ” it was incapable, as a corporation, of suing or being sued, or of holding real estate; that it had no corporate name or existence, and therefore that the demurrer of the defendant should have been sustained.

But if it were conceded that the old law continued in force, the same result would have followed. By that law, if the trustees were duly elected, and the certificate provided for it duly recorded, it is the trustees who were incorporated and declared capable of suing and holding property. The Missionary Baptist Church, by that name, could maintain no suit and was no person in law capable of holding property.

For the same reasons the verdict and judgment in the 'case are erroneous. A verdict for the Missionary Baptist Church or association, as the pleadings and proof show, is a verdict for no person in law.

It may not be improper to observe that this suit, as first brought, was well brought. It was by the amendments that the pleadings were rendered vicious. The conveyance to Tunstall in trust was for a charitable use. If he abused that trust and attempted to pervert the property to other purposes, and deprived the beneficiaries of the enjoyment of it in the contemplated mode, the courts were open to them for the redress of their grievance. In such case a suit may well be maintained by one or more of the beneficiaries, for the benefit of all, where the parties are very numerous, and equity will interpose to compel the due execution of the trust by the offending or refractory trustee, by divesting him of the property, if necessary, and appoint a new trustee. Story’s Eq., pp. 94, 97, 114; Story’s Eq., sec. 1199.

The proper disposition of this case is to reverse and remand it. -

Reversed and remanded.

[Opinion delivered March 14, 1881.]