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suspend the operation of the statute, and it, them. It was entirely independent of, and continued to run after that date as before. unrelated to, any cause of action the plainSuch having been the condition of affairs for tiff might have. It had and could have no more than five years before suit was com effect whatever upon the conduct or rights menced, the right to recover then of the mortgagee, and waiver cannot be predbarred. The taxes were paid by one who bore icated upon it. no privity to the debt, and owed the mort The judgment of the District Court is afgagee no duty concerning it. His conduct | firmed. implied no recognition either of the existence of the notes or of the right to enforce All the Justices concur.

IOWA SUPREME COURT.

Evalyn ALLEN, Appt.,

foreclosure sale, although the new corporav.

tion proceeds to carry on the work of the

old one at the old location, and maintains NORTH DES MOINES METHODIST EPIS

the same relation as the old one to the genCOPAL CHURCH et al.

eral religious denomination.

2. A creditor of a religious corpora(........Iowa..... .)

tion has no right of action against the in

dividual members of it as such. 1. In the absence of fraud, a creditor 3. А religious corporation is

not of a religious corporation has no

bound by the act of its minister in right to enforce his claim against prop making use of the membership roll of a forerty formerly belonging to it after it has been mer corporation, the title to whose property sold on mortgage foreclosure, the corporation it acquired through a foreclosure sale, so as dissolved, a new corporation organized out of

to make such act significant upon the ques. the old members and new ones, and the tion of the identity of the two corporations. property bought from the purchases at the 4. Refusal to grant leave to amend the

To sup

er

NOTE.—Liability of member of religious society , ship. It followed residence within the limits for its debts.

of the parish as a matter of course. 1. Scope, 255.

port and maintain religious instruction and II. Early rule in Massachusetts, Connecticut, worship through the agency of religious socieand Maine, 255.

ties was a public duty enjoined by law. By III. Incorporated societies, 256.

immemorial usage the inhabitants of a town IV. Unincorporated societies, 257.

had been held liable for its debts; and it is said V. Résume, 258.

in Richardson v. Butterfield, 6 Cush. 191, that it

was probably this strong resemblance be. 1. Scope.

tween towns and parishes as to the locality of

members and the general features of their orThis note is confined to a consideration of ganization that led to the application of a simithose cases in which the liability of the mem lar rule to members of parishes. The court in bers of a religious society for its debts as mem this case added that now the fact of residency bers merely is decided, and does not include within the territorial limits of a parish no long. cases in which the members whom it is attempt. constitutes membership thereof, and that ed to hold liab'e acted as officers of the church, territorial parishes are now to all intents and or in some representative capacity, as that of purposes, as regards their relation to their deacons, vestrymen, members of building com members, as much close or exclusive corporamittees, etc.

tions as poll-parishes, or incorporated societies.

The law now makes no compulsory provision II. Early rule in Massachusetts, Connecticut, for the support of ecclesiastical societies, and and Maine.

no person can become a member of such a soci. The eariy cases and dicta on this subject in ety until he has voluntarily united with it. Massachusetts, Connecticut, and Maine have

These societies, therefore, seem now to differ in been placed in a division by themselves because

no way, so far as the rights and liabilities of of the existence of the parish system in those

their members are concerned, from any other states, and the peculiar character of these ec

associations or corporations. clesiastical societies before the adoption of mod

In Massachusetts and Connecticut this early ern constitutions. They were neither private rule has been repudiated, but in Maine the corporations, nor yet mere voluntary, unincor

question seems not to have come before the porated associations, but were in fact munici

courts in recent years. pal and public corporations, the parishes being

The property of an individual member of a originally coextensive and identical with the territorial parish may be taken to satisfy an several towns, which at first exercised parochi-execution against the parish ; but such an exeal powers; and, when in some instances the cution cannot be levied on the property of one parishes became separate communities, they who has ceased to be a member of the parish bestill retained their public and political charac fore the levy, although he was a member when ter. They embraced substantially all the per- / judgment was recovered. Chase v. Merriinack sons residing within their territorial limits, Bank, 19 Pick. 564, 31 Am. Dec. 163. and no act was necessary to constitute member So, execution against a parish for the cost

V.

complaint so as to set up a new issue, , ration has been created, or an old one conafter the introduction of the evidence, is not tinued, is a question of intent. reviewable on appeal.

1 Thomp. Corp. 1895 ed. p. 256; Bellows

v. Hallowell & A. Bank, 2 Mason, 31, Fed. (March 10, 1905.)

Cas. No. 1,279.

The North Des Moines corporation, being A

PPEAL by complainant from a decree of a separate and distinct corporation, cannot

the District Court for Polk County dis- be held liable for the debts of the Prospect missing a bill filed to subject certain real Park corporation, unless it is pleaded and estate to the lien of a judgment which com- proved that it received from the older plainant held against the Prospect Park corporation, or from other sources, assets Methodist Episcopal Church. Affirmed. belonging to the Prospect Park corporation. The facts are stated in the opinion.

1 Thomp. Corp. § 263; Beach, Corp. § Messrs. William M. Wilcoxen and 796; Austin v. Tecumseh Nat. Bank, 49 Neb. Bowen & Brockett for appellant.

412, 35 L. R. A. 444, 59 Am. St. Rep. 543, Messrs. S. F. Prouty, W. L. Smith, and 68 N. W. 628; Hopper v. Moore, 42 Iowa, E. D. Samson, for appellees :

565; Texas State Fair & D. Exposition Asso. The question whether or not a new corpo-' v. Caruthers, 8 Tex. Civ. App. 474, 29 S. W. of repairs on its meetinghouse cannot be levied not individually liable, as such, to a creditor on the property of a member who has with- of the corporation. ALLEN NORTH DES drawn from the parish, but only on the prop- MOINES M. E. CHURCH. erty of those who are members at the time of

The property of a member of an incorporated the rendition of the judgment, or at most at religious society organized by voluntary associthe commencement of the action. Fernald v.

ation, having no territorial limits, cannot be Lewis, 6 Me. 264. The court refers to the fact

seized on execution against the society itself that at common law corporators are not an

for debt. Richardson v. Butterfield, B Cush. swerable in their persons or their private prop

191. erty for the debts or liabilities of the corpora

A debt against a voluntary religious corporation, but says that, "by the usage and practice- tion without local limits cannot be enforced by for it does not seem to have any other foundation-of Massachusetts and Maine, the case of levying an execution against the corporation towns and parishes forms an exception to this

upon the private property of one of its members.

Jewett v. Thames Bank, 16 Conn. 510. principle."

The And in 5 Dane's Abridgment, 158, it is said

court said in this

case that, although this that, to the principle that an individual mem- society was without a special charter, it was ber of an aggregate corporation is not liable essentially incorporated by virtue of the stat. for debts or demands against it, towns

ute relating to religious societies and congreparishes in Massachusetts are, by immemorial gations. usage, an exception, for on an execution against

But persons who were members of a relione of them the body or estate of any inhabit-gious corporation at the time of the death of ant may be taken to satisfy it, and he has his its minister are individually liable to his estate remedy over against the corporation.

for arrears of salary due him, where at that Ecclesiastical societies incorporated before time there existed a fund

which had been the adoption of the Connecticut Constitution raised by the society for the support of the stood upon the same footing with respect to the minister, sufficient to pay the indebtedness, and liability of their members for debts as towns, this money passed into the hands of the memschool societies, cities, etc. Dictum in McLoud

bers, who formed a new society, and, instead v. Selby, 10 Conn. 395, 27 Am. Dec. 689.

of appropriating the fund to the payment of It is also said, obiter, in Beardsley v. Smith, the former minister's salary, as was their duty, 16 Conn. 368, 41 Am. Dec. 148, that thereto permitted it to be wasted or used for other fore it had not been doubted that the inhabit

purposes. Bigelow v. Congregational Soc. 11 ants of located ecclesiastical societies were in

Vt. 283. The court in this case says, however, dividually liable for debts of the society.

that the individuals composing the society were And in a case where the property of the mem

not personally liable, unless they had made ber of an ecclesiastical society was taken by distress for the payment of a tax levied against

themselves so by some act or default, and that the society, and in which it was contended that

an execution against the society for the debt

could not be levied on the separate property of the property of a member could not be taken for the debt of the society, the court said that, the individual members. A receiver was apif the tax was properly laid, he could not see pointed to collect whatever might remain of the but that the distress was warranted, reason- fund, and apply the same, and the case was reing by analogy from the practice of New Eng. | ferred to a master to ascertain the situation of land to hold the inhabitants of a town liable the fund at the time of the death of the minisfor the town's debts, which practice also ob- ter, and who were members of the society at tained in England. But it was held that the that time. The master's report was excepted tax was illegal because the society was exempt. to, and the matter again came before the chanAtwater v. Woodbridge, 6 Conn. 227, 16 Am. cellor, who overruled the exceptions, and de Dec. 46.

creed that certain individuals found to have

been members of the society at the death of the III. Incorporated societies.

minister should pay to the clerk the amount

found due, with costs, and this decree was afThe members of a religious corporation are firmed in 15 Vt. 370.

or

48; National Foundry & Pipe Works V. der the name of Prospect Park Methodist Oconto City Water Supply Co. 105 Wis. 48, Episcopal Church, which judgment is still 81 N. W. 125.

unpaid, and that since the change in the

name of the organization it has become the Weaver, J., delivered the opinion of the owner of certain real estate upon which the court:

plaintiff asks to have the lien of such judgBriefly stated, the plaintiff claims that ment established and confirmed. By a in the year 1887 the defendant was in second count of her petition the plaintiff corporated for religious purposes under the alleges that the present church organization laws of this state, and assumed the name of is identical with the one against which she Prospect Park Methodist Episcopal Church, obtained judgment, and that the change in and that thereafter, by proper proceedings, its name and designation was a fraudulent the name of the corporation was changed to scheme or device to hinder and delay its North Des Moines Methodist Episcopal creditors. The defendants admit that the Church. It is further alleged that prior to North Des Moines Methodist Episcopal the beginning of this action plaintiff ob- Church is a corporation, and owns the real tained a judgment against the corporation in estate above referred to, but deny that said the district court of Polk county, wa, un- corporation is identical with the Prospect IV. Unincorporated societies.

rears of salary, and who agreed in writing,

jointly and severally acting by their trustees Members of a voluntary unincorporated re

and agents, to pay such sum, are individually ligious association are not individually liable

liable for the indebtedness. Sheehy V. Blake, for its debts, unless they authorized the in

72 Wis. 411, 39 N. W. 479, Affirmed in 77 Wis. curring of the obligation, or subsequently rati

401, 9 L. R. A. 564, 46 N. W. 537. But the fied the same. First Nat. Bank v. Rector, 59

court stated explicitly that this responsibility Neb. 77, 80 N. W. 269.

does not rest upon the mere fact that the deAnd it is said obiter, in Devoss v. Gray, 22

fendants were members of the association when Ohio St. 159, that a member of an unincorpo

the debt was incurred, but upon the ground rated religious society cannot be held personal.

that they approved of, or participated in, conly responsible for the debts of the society, un

tracting it, and subsequently assumed and less it be shown that he in some way sanctioned

agreed to pay it through their authorized or acquiesced in their creation.

agents. This statement was quoted with approval in

A member of an unincorporated religious Males v. Murray, 7 Ohio N. P. 614, Affirmed society, who purchases an obligation against in 23 Ohio C. C. 396, although the point was

the society contracted while he was a member, not directly involved in the case.

and who is still a member at the time the action Members of an unincorporated religious socie

is brought, cannot recover a personal judgment ty, who participated in a business meeting at

against the other members of the society. which it was agreed to employ a pastor at a

German Roman Catholic Church V. Kaus, 6 certain salary, are not liable to him individual

Ohio Dec. Reprint, 1028. The court refers to ly for arrears of his salary; and such contract

the fact that the supreme court of the state has of employment created at most an obligation,

decided that members of such a society, who if any, upon such members to pay their ap

personally participate in creating a debt, may portional share only of such expense, where the

be held liable personally therefor. The evipastor accepted his position with full knowl

dence in this case tended to show that the peredge that a fund to pay his salary would be

sons against whom the judgment was sought raised by voluntary contribution of the mem

had participated actively in the borrowing of bers, to which alone he could look for compen

the money, but, because the party suing on the gation. Riffe v. Proctor, 99 Mo. App. 601, 74

claim was also a member, it was held that he S. W. 409.

could not recover.. His remedy was held to be But members of an unincorporated religious

in equity against the property of the society. society. who were actively instrumental in in

A member of an unincorporated religious curring liabilities for it, are liable either as society, who brings an action against the other principals or agents having no legal principal members of the society on a promissory note behind them; members of the society who ei

whieli declares on its face that all the properther authorized or ratified the transactions are

ty of the church is held for the payment therealso liable, while those who did not are exempt

of, is not entitled to a personal judgment from liability.

against the members ; but, inasmuch as he was Clark v. O'Rourke, 111 Mich.

a member of the society, and must have received 108, 66 Am. St. Rep. 389, 69 N. W. 147. And in Burton v. Grand Rapids School Fur

some part of the benefit arising from the money niture Co. 10 Tex. Civ. App. 271, 31 S. W. 91, loaned, there should be an accounting in order

to determine who are the members and what it is also said, obiter, that in case of a debt against an unincorporated religious society the

proportion of the amount loaned the members

other than himself must pay. members who incurred the liability, assented

Meyer v. Lip to it, or subsequently ratified it, became per

ski, 8 Ohio S. & C. P. Dec. 584, 7 Ohio N. P. sonally liable.

366. So members of an unincorporated religious

In Georgia it has been held that the members association, governed in their secular affairs of an unincorporated religious society are liahy a priest and trustees having power to incur

ble on its contracts as joint promisors or debts for the association, who, through such partners. Thurmond v. Cedar Spring Baptist agents, stated an account with their priest for Church, 110 Ga. 816, 36 S. E. 221. money advanced to build a church and for ar- And in another Georgia case,--Wilkins v. St.

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Park Methodist Episcopal Church, or is in | proposition of law or of morals. The fact any way responsible for the debts of such that the new organization embraces the old church. They deny all allegations of fraud. membership is immaterial, and in itself afIt is also alleged that the organization fords no reason why it should be held liable known as the Prospect Park Church became for the debts of the old corporation. True, indebted beyond its ability to pay, and its the courts will watch such reorganization church property, which is the property now with care, that no fraud be accomplished. owned by the defendants, was sold under and to that end will insist that there shall foreclosure of mortgage, and the title be a bona fide intention to make a new and wholly lost; that in such condition it was independent organization, and that it shall impossible to obtain contributions for the not take over, absorb, or convert to its use. support of the society, or to purchase or the property or assets of the old corporation erect ? new building, and the corporation to the prejudice of its creditors. There and society were disbanded. Under these must be something more than a mere succescircumstances it is said the North Dession in business to charge the successor with Moines Methodist Episcopal Church was the debts or delinquencies of the party sucorganized, and an incorporation effected as ceeded. Hopper v. Moore, 42 Iowa, 563; a new and independent body having no con- Wyman v. Hallowell & A. Bank, 14 Mass. nection with or responsibility for the debts 58, 7 Am. Dec. 194; National Foundry & of the old organization.

Pipe Works v. Oconto City Water Supply From this outline of the issues it will be Co. 105 Wis. 48, 81 N. W. 125; Memphis readily seen that the one question to be Water Co. v. Magens, 15 Lea, 37; Texas considered is whether the reorganized North State Fair & D. Exposition Asso. Des Moines Church is a mere continuation Caruthers, 8 Tex. Civ. App. 474, 29 S. W. of the old corporation under a new name, or 48. The legal identity of the new corporais a new corporation, which is under no tion with the old ordinarily depends upon legal liability for the debts of its predeces- the intention of the incorporators. 1 sor. That the members, or some of the mem- | Thomp. Corp. 256; Miller v. English, 21 N. bers, of an insolvent or dormant corpora- J. L. 317; First Soc. of M. E. Church v. tion may organize a new corporation for the Brownell, 5 Hun, 464; 2 Morawetz, Priv. promotion of the same purposes to which Corp. $ 812. the old one is dedicated without becoming There can be no doubt in the present case chargeable with its debts or obligations is that the incorporators of the North Des too well settled for dispute. On the other Moines Church intended to create a new and hand, it is equally well settled that the independent organization, which should not mere change in the name of a corporation be chargeable with the debts of the Prospect has no effect upon its legal status, or upon Park Church. Their legal right to perfect the rights of creditors. Among corporations such an organization is also clear. If, then, organized for business purposes it has been, their organization was 'n regular statutory and still is, a matter of most frequent oc- form, and no fraud was practised upon the currence that in the initial struggle for explaintiff as a creditor of the old corporation, istence they become hopelessly insolvent. the conclusion of the trial court must be upUnder such circumstances, the organization held as correct. No question has been raised of a new corporation to build, if possible, a as to the formal or statutory sufficiency of successful business on the ruins of the old is the methods pursued, and we shall therefore entirely legitimate, whether considered as a confine our inquiry to the question of fraud. Mark's Church, 52 Ga. 351,-where it was held bers of an unincorporated religious society are that a suit against an unincorporated religious liable on its contracts as joint promisors or association could not be maintained, the court partners. But it has been frequently declared said that, had all its members been served, they by the courts that a partnership is an associ. might have been charged as joint promisors or ation of persons formed to carry out some un. partners.

dertaking from which it is expected to make a Résumé.

profit, and that any association from which the

element of profit is absent cannot be considIt would seem that the liability of a member

ered a partnership. of a religious association for its debts should

In some of the New England states, also, the be the same as that of a member of any other corporation or association, and the majority of

members of a religious society have been held

liable for its debts, but this liability is the rethe decisions, which are not numerous, are decided on this theory. If the society is incorpo

sult of the peculiar character of such associ. rated, the members cannot be held liable indi

ations, and the peculiar relation of the members vidually. If it is not incorporated, the general

to them, as shown in division II. The early rule is that the members can be held liable only

cases that declare this liability are

of when they have in some way been instrumental

but little value, aside from their historical inin creating the debt, or have ratified it after- terest, since, with the passing of the parish ward. In Georgia, however, the rule seems to system, the reason for holding individual membe different, as it is there beld that the mem

bers liabie also passed away.

F. 8. L.

now

The Prospect Park Church was organized sell it for less than one half the mortgage and incorporated in the year 1887, and ob- debt for which it had been sold, and the new tained title to the tract of land mentioned corporation purchased it, and now holds the in the pleadings. Encouraged by persons in- title. It is against this property that the terested in the values of residence property plaintiff now seeks to enforce her judgment. in that neighborhood, and relying upon sub- In none of the circumstances of the case do scriptions and promises which eventually we discover anything on which a charge of proved valueless, it erected a church build- fraud may be justly predicated. It is true, ing out of proportion to its financial ability, we have said the new church is principally and incurred expenses beyond its power to made up from the membership of the old; meet. The property was heavily mortgaged, that it is affiliated with the same conferand this burden, with others incident to the ence, acknowledges the same ecclesiastical mismanagement or misfortune attending the authority, professes the same faith, occupies first years of the society's existence, proved the same locality, and pursues the same gen. too great to be removed or successfully car- eral policy; but these do not constitute corried. In the year 1899 the mortgage was porate identity. Had the North Des Moines foreclosed for something more than $5,000, Church taken over any property or valuable and, the property having been sold, and not thing which the plaintiff was ent in redeemed, the purchaser took a sheriff's law or equity to subject to her claim, a deed. The record discloses no fact or cir- | different question would arise. But even cumstance indicating that the foreclosure then her remedy would be confined to a subwas a collusive transaction, or that the cor-jection of such property to the payment of poration had any agreement, express or her judgment. In other words, the new corimplied, with the mortgagee, for the repur- poration would not ordinarily be chargeable chase of the property. The loss of the title as her debtor, but as a trustee, liable to acleft the society wholly without assets. Cor- count for such assets of the old corporation porations of this character issue no stock, as it may have received. 2 Morawetz, Priv. and are wholly without power or authority Corp. § 811; Marshall v. Western North to levy assessments upon, or enforce contri-Carolina R. Co. 92 N. C. 322; Bruffett v. butions from, their members. As is quite Great Western R. Co. 25 Ill. 353; Donnally sure to be the case in organizations which v. Hearndon, 41 W. Va. 519, 23 S. E. 646; depend solely upon voluntary good-will of. 1 Thomp. Corp. § 263. Plaintiff is not the ferings for income and support, an excessive creditor of the members. She has not, and indebtedness proved an insurmountable ob- never has had, a right of action against stacle to prosperity and growth. At the end them as such. The only duty owed to her of some thirteen years' effort, the society by the individual members was the moral found itself without a church building, and duty to use all reasonable effort by their without means or ability to obtain another, own contributions, and by such assistance as or to pay its outstanding obligations. Its might properly be obtained from others, to assets had been wholly eliminated. It had maintain the solvency of the corporation. neither property, money, nor franchises There is nothing before us to show that this which creditors could subject to their full measure of duty was not performed, claims. There is nothing to indicate that while the proved fact that the church strug. its members had not contributed to the full gled with its difficulties for so many years extent of their ability and duty under the before surrendering to the inevitable affords circumstances. Its corporate organization some presumption that its members were even had ceased to be available for the not unmindful of their obligations. society's future needs, because the existence It is suggested in argument that some few of its indebtedness and the discredit attach- articles of furniture and miscellaneous suping to its failures in the past were quite plies belonging to the old church went into sure to paralyze every effort to enlist the the possession of the appellee. It is true the help, support, and sympathy which were es evidence indicates that a portable organ, sential to success. Under this stress, it was which was placed in the church before the determined to disband the old organization, foreclosure, has remained there, and that and from its membership, with such others the pastor makes use of the original memas could be induced to co-operate, endeavor bership roll. As to the first item, we can to create a new one. This was done. The only say that, if such property was liable new organization was made up largely from to seizure and sale upon the plaintiff's judgthe old members, but with a new list of of- ment, it may still be reached in the hands ficials, and incorporated as the North Des of the appellee; but no such relief is sought Moines Methodist Episcopal Church. The in this proceeding. Of the other matter, it owner of the church property nder may be said that the pastor is not an officer sheriff's deed, finding it no doubt an un of the corporation, and it is not bound by desirable and profitless asset, consented to his act in the premises. Moreover, it ap

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