1. Pending a suit brought to control the affairs of a church and
obtain possession of its property by a portion of the congregation
against its founder and another portion, each claiming to be the
lawfully elected trustees, every member who desired to worship at
the church was permitted to do so, and it was kept exclusively for
church purposes. A decree passed for the complainants.
Held that they were not entitled to recover for the use
and occupation of the church premises, as no claim therefor was
made in their bill and the defendants derived no pecuniary
advantage therefrom.
2. The referee having found that money had been collected on
behalf of the church by the pastor, who held a deed of trust on the
church property to secure notes payable to him, this Court directs
that he be allowed by the court below to produce them in order that
the money be applied as a credit thereon, or, upon his failure to
do so, or to satisfactorily account for them, that a decree be
entered against him for the money.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The bill in this case was filed by Joseph Alexander and
Page 103 U. S. 331
others against Albert Bouldin and others to determine which of
two contending boards of trustees of the "Third Colored Baptist
Church" was entitled to the possession and control of the church
property, including the church building erected by the association
as a place of worship, to correct a mistake in a deed executed by
Bouldin to the trustees of the church, and to obtain a settlement
with him of his accounts as the agent and pastor of the church and
the cancellation and discharge of certain notes secured by real or
pretended deeds of trust which had been from time to time executed
to him. The first and second of these things were accomplished by a
decree affirmed in this Court at the December Term, 1872, and
reported in
82 U. S. 15 Wall.
131. The complainants were by that decree adjudged to be the lawful
trustees, the mistake in the deed was corrected, and the present
appellants, defendants below, were ordered to deliver the
possession of the church building and the lot on which it stood to
the complainants. This left nothing to be disposed of but the
matters of account between Bouldin and the church, and the notes
which had been given to him. With a view to this end, the original
decree, affirmed here on the former appeal, was that the cause be
referred to the auditor of the court below
"to examine and report the facts on the following
questions:"
"1st, whether the defendant, Albert Bouldin, purchased, under
the direction of the church, the entire lot of ground on the corner
of Fourth and L Streets of George H. Varnell, for the use and
benefit of said church, and whether the money collected by said
Bouldin from or on behalf of the church was by him used to aid in
the payment of said lot, and if so, to what amount."
"2d, to state the accounts between the said Albert Bouldin and
the plaintiffs, as trustees of the said church, and the trustees of
whom they are the successors, to report the amounts of money
received by said Bouldin from the said church, and from other
persons on behalf of said church, and the amounts to which he was
entitled for his services in behalf of said church, and has
expended therein and about the same, and to state the balance due
either way, and for these purposes that he may call witnesses and
take testimony. "
Page 103 U. S. 332
"That the plaintiffs, until the further order of this court, are
enjoined and restrained from selling, disposing of, or in any way
encumbering the title of said church property so as to weaken the
security of said Bouldin upon the church property."
When our mandate went down on that appeal, the complainants
moved that a writ of possession issue at once, but the court
withheld it for the coming in of the auditor's report, and, with
the consent of the defendants, the order of reference was made to
include the following additional questions:
"3. In whose possession has the church building and property on
the corner of Fourth and L Streets, Washington, D.C., been since
the commencement of this suit?"
"4. What is the fair value of the rents, issues, and profits
arising and accruing to the party in possession of said property
from and since this suit?"
There was no claim in the bill for compensation for the use and
occupation of the property, though it was alleged that the
defendants unlawfully and by force kept the complainants, who were
the only duly elected trustees, out of possession.
As to the notes, it was alleged in the bill that on the 28th of
July, 1862, six notes were made to Bouldin, five for the sum of
$100 each, payable in one, two, three, four, and five years from
date, and the other for $120, payable in six years, and that these
notes were secured by a deed of trust to one J. W. Barnaclo. In
addition to this, according to the averments in the bill, four
other notes of $400 each were afterwards executed to Bouldin on a
settlement of his accounts for the erection of the church building.
It was also alleged that the defendants who claim to be trustees of
the church property had executed a deed of trust to one Callan, to
secure all the notes originally given to Bouldin. The claim on the
part of the complainants was that on a full settlement of all the
accounts of Bouldin and a correction of the mistakes that had
occurred in former settlements, it would be found there was nothing
due on the notes and that Bouldin would be largely in debt to the
church.
The defendants, in their answer, claimed that the notes for $620
were given and secured by deed of trust to Barnaclo, as stated in
the bill, and that on the settlement of accounts, when the church
building was completed, six notes of $400 each
Page 103 U. S. 333
were given to Bouldin instead of four. The execution of the deed
of trust by the defendant trustees was also relied on.
On the hearing of the case before the auditor, Bouldin refused
to produce the notes that had been given to him or account for
their absence. It was proved, however, that there had been paid to
or collected by him divers sums of money which should be credited
on the notes. The aggregate of these sums, including interest from
the date of payment to Nov. 1, 1875, is, according to the report to
the auditor, $1,233.47. On account of the failure of Bouldin to
present the notes, the auditor made no statement of the amount due
upon them, but treated them as withdrawn from the suit by Bouldin.
The auditor also found that the entire lot of ground on the corner
of Fourth and L Streets, bought from Varnell, was for the use of
the church, and charged Bouldin with the proceeds of a sale made of
part of the lot. He also reported that the defendants had been in
the possession of the church property since the commencement of the
suit, and that the value of the rents, issues, and profits accruing
to them by reason of such possession, was six per cent per annum on
the value of the property, or $498.33 a year. He therefore, in his
accounting, charged the defendants with that amount, payable
quarterly each year, from Sept. 28, 1867, the date of the
commencement of the suit, until Oct. 1, 1875, and interest on each
quarterly installment as it fell due. The total amount of his
allowances in this way, on account of rents, was $4,910.26, as of
Oct. 1, 1875.
Upon the filing of the report, the complainants excepted because
rents had not been charged from July 28, 1867, instead of September
28. The defendants excepted, 1, because they had been charged with
mesne profits, 2, because Bouldin was not credited for the amount
of his notes, 3, because Bouldin was charged for the proceeds of
the part of the lot bought from Varnell which he had sold, 4,
because no allowance had been made to Bouldin for his services, and
5, because of the amount allowed for payments made to Bouldin.
The court below at special term overruled the exceptions of the
complainants and sustained the exceptions of the defendants to the
allowance against Bouldin for the proceeds of the sale of part of
the lot bought from Varnell, and to the allowance
Page 103 U. S. 334
against all the defendants for rents, and returned the case to
the auditor for a further stating of the accounts in accordance
with certain instructions. From this decree at special term an
appeal was taken by the complainants to the general term, where a
decree was rendered against all the defendants, the present
appellants, for $4,734.12,
"as mesne profits for use and occupation by them of the church
premises during the pendency of this suit, to-wit from the
commencement of the suit until March 31, 1877, when the said
premises were returned to the possession of the plaintiffs."
The decree then further goes on to say,
"The promissory notes given by the plaintiffs as trustees of the
church to the defendant, Albert Bouldin, are not included in this
decree, the same having been withdrawn from the consideration of
the court. But all other claims by him made against the church or
its trustees are rejected and disallowed. The item of interest on
mesne profits reported by the auditor in favor of the complainants
is disallowed."
It was also ordered that the injunction restraining J. W.
Barnaclo from proceeding under the deed of trust to him, and that
restraining the complainants from selling, disposing, or
encumbering the title to the church property, be dissolved.
From this decree the defendants below have alone appealed, and
they assign for error the decree against them for the payment of
mesne profits and the disallowance of the claims of Bouldin not
embraced in his notes.
As to the mesne profits, we think the decree below cannot be
sustained. There is no claim for an allowance of this kind in the
bill, and the proofs do not show that the appellants, or those whom
they represent, derived individually any such pecuniary advantage
from the use of the property pending the suit as to make it proper
they should be held personally accountable in that way. Bouldin was
the founder of the society. He gathered the congregation together.
He bought the church lot and superintended the erection of the
church building. If money was wanted that could not be got from
others, he furnished it himself from his own means, and in the end,
as the case shows, while the society had secured a property worth,
according to the report of the auditor, a little more than $8,000,
there was a debt owing to him of over $3,000. The congregation
had
Page 103 U. S. 335
increased under his administration to several hundred members.
Afterwards dissensions grew up, and two parties were formed, the
complainants representing one and the defendants the other. Each
sought to control the property and govern the society. The
defendants kept possession, and apparently a part of the time with
the approbation of the court, for a writ to put them out was denied
when applied for. At last the complainants were successful, and
Bouldin and his party were required to submit to their government.
The contest all along was not so much for possession of the
property as for the control of the church affairs. During the
entire controversy, the church property has been kept exclusively
for church purposes. Every member of the congregation was permitted
to worship there if he chose. It is possible that the parties
officiating at the religious services and controlling the property
may not at all times have been such as the complainants and their
adherents wanted, but no person was excluded from the church
building for the purposes of worship if he wanted to go in. Under
these circumstances, it seems to us that the defendants are not in
equity chargeable personally with the value of the use and
occupation of the property during the time they were litigating to
keep the control of the society and its affairs.
In other respects, the decree below is right so far as it goes.
Upon the evidence, Bouldin is not entitled to any further credits
than have been allowed. He voluntarily withdrew or withheld his
notes from the auditor and the court, and cannot have any
affirmative relief on their account. His rights under the Barnaclo
deed of trust are saved by the decree, and as the persons who
executed the Callan deed were not lawful trustees, all proceedings
under that deed were properly enjoined. We think, however, some
order should have been made giving the complainants the benefit of
the finding in their favor by the auditor in respect to the moneys
paid to or collected by Bouldin to apply on his notes. From the
answer of Bouldin it seems probable that a part of these payments
have already been endorsed on the notes, but this cannot be
determined with certainty without an inspection of the notes
themselves. If he will produce the notes or satisfactorily account
for their absence so that the proper application of all payments
can be
Page 103 U. S. 336
made under the direction of the court and the notes discharged
to the extent of the application, that should be done. But if, on
an order to that effect, he shall fail to produce the notes or fail
satisfactorily to account for their absence, a decree should be
entered against him personally for the several amounts reported by
the auditor as having been paid to or collected by him on that
account. As this last proceeding his been rendered necessary by his
failure to produce the notes on the former hearing, he should be
charged with the costs consequent upon such refusal.
The decree will be reversed so far as it charges the appellants
with any sum for mesne profits and use and occupation, and the
cause remanded for such further proceedings in conformity with this
opinion as may appear to be necessary; and it is
So ordered.