Abraham Clark Freeman.

The American state reports: containing the cases of general value and ... online

. (page 63 of 121)
Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 63 of 121)
Font size
QR-code for this ebook

was engaged in any hazardous business, or indeed in any biuineaB
transacted in whole or in part on a credit. The evidence only
shows that during one year of that time he was engaged in peit-
nership with Sheldon, the principal in the note, in keeping end
breeding horses and jacks, but it does not appear that ciedit
was at any time asked or given in that business, nor does it appeir
that the business itself was unprofitable. The wife had no in-
formation that her husband was in the habit of indorsing notes
for others, nor did she know that he had been asked to sign
this note as surety or that he had signed it untQ ^ long
afterward. The question then is, whether the wife by permit-
ting the husband to hold the title to her land, by recorded deed,
in his own name, would, without other act or representation on
her part, be estopped to deny the title as against plaintiff, who,
without her knowledge, gave credit to the husband upon the faith
of his ownership as it appeared of record.

Equitable estoppel arises "where one, by his words or condnci
willfully causes another to believe in the existence of a certain
state of things, and induces him to act on that bdief, so as to alter

Digitized by


March, 1895.J Da Bebhy v. Whsbleb. 541

his own previous position'^; in such case ''the former is con-
cluded from averring against the latter a different state of things
as existing at the same time" To make this estoppel complete^
it is said three things must combine, '^namely, fraudulent repre-
sentation, or withholding of truth when duty requires one to
speak, reliance on the expressed or implied representation by the
party defrauded, and the consequent act taken by the defrauded
person^^: 2 Bishop on Married Women, sec. 487.

Again, it is said by another author: '*It must appear that there
was fraud or gross neglect; that the party making the admission,
by his declaration or conduct, was apprised of the true state of
his own title and that others were acting in ignorance of it; that
he intended to deceive, or was culpably negligent in the non-
assertion of his rights; that the other party had no knowledge,
or means of acquiring knowledge, of the true state of the title,
and that he relied upon such admission to his injury'': 2 Hermann
on Estoppel, sec. 987.

It must be conceded that Mrs. Wheeler, by permitting the
record title to the land to remain in her husband, represented to
the public that her husband ®^ was the owner of it. Yet in
this alone no one could be defrauded. The fraud and conse-
quent estoppel would only exist when she knew, or from all the
circumstances ought to have known, that others, relying upon
what she permitted the record to tell them, were dealing or might
deal with the husband in such a manner as to cause them to alter
their previous condition, to their injury. As a matter of fact,
Mrs. Wheeler did not know that her husband was being taken as
surety on the faith of his ownership of the land. This trans-
action was, moreover, entirely out of the course of any business
in which he was engaged, and no inference can. therefore, be
drawn that she had such knowledge. We consequently do not
think that the doctrine of estoppel applies under the circum-
stances of this case.

It is unnecessary to decide, nor do we decide, how far, under
the statutes of 1889, the doctrine of estoppel can be applied to
married women.

Judgment affirmed.

All concur in the result.


WIFE, WHEN NOT PBAUDULENT.-Wben a husband pays his wife
one hundred dollare a year for aervicea rendered by her, and, in con-
•ideration of the loan by ber to him of the sum so paid, and of other

Digitized by


542 RussiB V. Brazzelu [Miasouii,

property given to her by relatives, makes to her a conveyance of prop-
erty, such conveyance is valid as against a subsequent creditor: Daggett
etc Co. V. Bulfer, 82 Iowa, 101 ; 31 Am. St. Rep. 464, and note. 8ee
the notes to Steele v. Coon, 20 Am. St. Rep. 715 ; Warren v. Brown, 67
Am. Dec. 196; Cooke v. Bremond, 86 Am. Dec 642, and Wilder T.
Brooks, 88 Am. Dec. 54.

Whereone, by words and actions intentionally, causes another to belie?e
in the existence of a certain state of things, and thereby induces him to act
on that belief so as to iniuriously affect his previous ^ition, he ia con-
cluded from averring a different state of things as existing at the time:
Cowles V. Bacon, 21 Conn. 451; 56 Am. Dec. 871; Caldwell v. Auger, 4
Minn. 217 ; 77 Am. Dec. 515, and note; Drew v. Kimball, 43 K. H. 2S2;
80 Am. Dec. 163, and note; New York Rubber Co. v. Rothery. 107
N. Y. 310; 1 Am. St. Rep. 822, and note ; Wheaton v. North British etc.
Ins. Co.» 76 Cal. 415; 9 Am. St. Rep. 216.

RussiB V. Brazzell.

[128 MXSSOURI. 93.]


constitution formed for a religious society was not submitted to,
nor ratified by, the people to be governed by It, and Its force waa
never fully recognized by the entire body of the church, yet, If It ^-ai
accepted and remained unchanged for forty years, and every perst^o
who Joined the society accepted Its provisions, and was entitled to
demand all the rights It guaranteed. It should be held to consti-
stltute the permanent law of the society so long as It continues un-
changed and unrepealed.

MAY BE CHANGED.— A constitution which declares that it shall
not be altered, except by the request of two-thirds of the whole so-
ciety, merely requires that no alteration shall be made without the
consent of two-thirds of the members. Therefore, such a constitc-
tion may be changed by the formulation, by a committee appointed
for that purpose, of a new constitution, its submission to the mem-
bers for their approval, and the casting in favor thereof of the votei
of the requisite number of members.

TICIPATE in an election are not to be taken into consideration ia
declaring the result. Hence, If the law requires a question to be
decided, or an oflacer to be elected, by the votes of the majority of
the voters of the county, this does not require that the majorl^ of
all the persons In the county entitled to vote shall actually vote affinn-
atively, but only that the result shall be decided by a majority of the
votes cast.

OF VOTES REQUIRED TO CHANGE.— If the constitution of »
religious association declares that it shall not be altered, unless b.r
the request of two-thirds of the whole society, yet If amendments
are submitted and voted upon, and more than two-thirds of the votes
cast are in favor of such ameiulnients, thev are adopted by a Mifficient
vote, though the persons so voting for tne alteration are less than
two-thirds of all the members of the society, if the rules and customf
of the society accord with this construction of its constitutional law.

Digitized by


March, 1895.] Rusbib v. Brazzell. 548

PROPOSBD AMENDMENTS to the constitution of a religioas asso-
ciation may be deylsed and proclaimed by Its general officers, if not
contrary to the laws of the land nor to the provisions of the old con*

FESSION OF.— If a revised confession of faith is proposed and
adopted by a religions association, and the question is one of doctrine
alone, the courts are inclined to treat the decision of the general con*
f erence of the association as final, in so far as it determines that the
revised confession does not so change the distinguishing doctrine
of the church as to destroy Its identity or operate as a perversion of
the trust under which its property is held,

SION OF.— Though the constitution of a church provides that no
rule or ordinance shall be passed at any time to change, or do away
with, the confession of faith, it does not prohibit changes in such
confession in the interest of clearness of expression or fullness of
statement of the established doctrines of the church.

SION OF FAITH of a religious association does not amount to a
misuse or perversion of the trust upon which Its property is held»
if the substantial theological doctrine and general polity are retained,
though there is a change in the church policy, or an alteration in
the expressed form of faith.


BALLOTS.— Though, on submitting amendments to the constitu-
tion of a religious association, the ballots are all printed in favor of
the amendments, and persons desiring to vote against them must
strike out the word "yes" and Insert "no," and the votes are received
and counted by the tellers, and the result declared by the general
conference, such result will not be set aside by the courts In a col-
lateral attack.

Wanamaker & Barlow, for the plaintiffs in error.

A. F. WoodruflP, D. J. Heaston, and L. B. Gunckel, for the de-
fendants in error.

^® MACFARLANE, J. This suit is ejectment to recover
possession of certain lots at Eagleville, Harrison county. The
title to the lots is vested in trustees for the use of the 'TJnited
Brethren in Christ," by deed dated February 10, 1873. The
property was used by the congregation ®® of said church as a par-
sonage. The controversy grows out of a division in the church
and said congregation, which occurred in 1889. The plain-
tiffs are the trustees of the branch known as liberals, and de-
fendants are trustees of the branch known as radicals. Each
claims the property as trustees of the church.

'TTie United Brethren in Christ** is a voluntary unincorporated
rel»giou8 denomination. At its first organization, something over
a century ago, it had neither a constitution nor a confession of
fsHh. It looked to the Bible alone for doctrine and government.

Digitized by



In 1816, the general conference, which was the hi^^ legidi-
tire and judicial body of the dinrch, adopted a confession d
faith which contained the fundamental doctrinea of the chaieh,
and which waa recognized and adhered to until 1889. The gen-
eral conference in 1841 formulated and adopted a constitutioii
as the organic law of the church. This constitution recognized
the confession of faith adopted in 1815, and provided, among
other things, that "no rule or ordinance shall at any time be
passed to change or do away with the confession of faith as it now
stands.'' It also provided: "There shall be no connection with
secret combinations." Article 4 provided: "There shall be no
alteration of the foregoing constitution, unless by request of
two-thirds of the whole society.'' There was no submission of
this constitution to a vote of the members of the society, and the
regularity of its adoption is, and from its date has been, qaes-

In May, 1885, the general conference adopted the following
resolutions, by a vote of 78 to 42:

"Whereas, our confession of faith is silent or ambiguous npon
some of the cardinal doctrines of the Bible, as held and be-
lieved by our church; and

^nV^hereas, It is desirable and needful to so amend and improve
our present constitution as to adapt its *^ provisions more folly
to the wants and conditions of the church in this and future
time, therefore,

"Kesolved, by the delegates of the annual conferences of the
church of the United Brethren in Christ, in general conference
assembled, that a church commission, composed of twenty-eeren
persons, and consisting of the bishops of the church, and minis-
ters and laymen appointed and elected by this body, an equal
number from each bishop's district — ^provided that the Pacific
district shall have two members besides its bishop — be and is
hereby authorized and established.

"The duties and powers of this commission shall be to con-
sider our present confession of faith and constitution, and pre-
pare such a form of belief and such amended fundamental rules
for the government of this church in the future as will, in their
judgment, be best adapted to secure its growth and efficiency in
the work of evangelizing the world.

'Trovided, that this commission, shall preserve unchanged in
substance the present confession of faith, so far as it is dear; t
That it shall also retain the present itinerant plan; 3. It shall

Digitized by


March, 1895.] Bu88ib 9. Bbazzell. 645

keep sacred the general usages and distmctive prindples of the
church on all great moral ref orms, as sustained by the word of
God^ in so far as the proYince of their work may touch them.

^Trovided, further, that in the final adoption, as a whole, of
a confession of faith and constitution for submission to the church
by the commission, a majority vote of all the members composing
the commission shall be necessary.

'Resolved, that this commission shall meet at such time and
place as the board of bishops may appoint, and is expected to com«
plete its work by January 1, 1886.

101 Mrpj^Q commission shall also adopt and cause to be executed
a plan by which the proposed confession of faith and constitution
may receive the largest possible attention and expression of
approval or disapproval by our people, including all necessary
regulations for taking, counting, and reporting the vote.

'^Besolved, that when, according to the foregoing provisions,
the result of the vote of the church shows that two-thirds of all
the votes cast have been given in approval of the proposed con-
fession of faith and constitution, it shall be the dutj of the bis-
hops to publish and proclaim said result through the official
organs of the church. Whereupon, the confession of faith and
constitution thus ratified and adopted shall become the funds-
mental belief and organic law of this church.

'Trovided, further, that the adoption of the constitution as
aforesaid shall in no wise affect any legislation of this general
conference for the coming quadrennium.*'

A recommendation that the following law in rdation to secret
combinations was also adopted.

'^A secret combination, in the sense of the constitution, is a
secret league or confederation of persons holding principles and
laws at variance with the word of God, and infringing upon the
natural, social, political, or religious rights of those outside its

"Any member or minister of our church found in connection
with such combination shall be dealt with as in other cases of dis-
obedience to the order and discipline of the church in case of
members, as found on page 23 of discipline in answer to the third
question of section 3, chapter lY, and in case of ministers, as
found in chapter VI, section 13, page 65."

Pursuant to these resolutions a commission provided thereiii
was duly appointed. The commission so appointed prepared a
revised confession of faith and an ^^^ amended eonstitntion.

▲K. SIL &sr., Vou XUX.— 85

Digitized by LnOOQ IC

546 BuBBiB V. Bbazzell. [MiBBouri,

These were submitted to a vote of the members of fhe societjr
under methods adopted by the commission. The vote was taken
in November, 1888, after all reasonable endeavors to enlighten
the membership through official organs, and by pamphlets, and
by pulpit announcements. The vote as taken was as follows:

For the confession of faith 51,070

Against 3,310

For the amended constitution 50,685

Against 3,659

For lay delegation 48,825

Against 5,634

For section on secret combinations 46,994

Against 7,298

At the time this vote was taken the membership exceeded
two hundred thousand.

The revised confession of faith and amended constitution were
reported to the general conference in 1889 and adopted by a vote
of one hundred and ten to twenty, and were proclaimed by the
presiding bishop to be the confession of faith and the constitu-
tion of the Church of the United Brethren in Christ

After the proclamation of the bishop, fifteen members of the
conference, including one bishop, withdrew to another room,
elected a secretary, and passed a resolution declaring that by their
action the other members had vacated their seats. Each body
thereafter acted independently as the general conference, and
since then there have existed two separate and distinct bodies,
each having a complete general and local organization, and each
asserting that it is the Church of the TTnited Brethren in Christ.

The plaintiffs are trustees of the majority, or liberals, as they
are called, and defendants are trustees elected by the minority,
or radical party. Each claims the property as the trustees of the
true church.

108 The revised or new confession contains thirteen articles.
The changes made are given below. The words in parentheses
were in the old confession, but are not contained in the new.
The words in italics were not in the old, but have been added to
the new:

''Article 2. We believe that this triune Ood created the
heavens and the earth, and all that in them is, visible and invisi-
ble (and, furthermore, sustains, governs, protects and supports
the same); that He sustains^ protects^ and governs these with ym-
dous regard for the toelfare of man^ to the glory of His name.

Digitized by


March, 1895.J Bussie v. BaAzzsix. 647

^Art 3. We believe in Jesas Christ; that He is very God and
man; that he became incarnate by power of the Holy Ghoet
(in the Virgin Mary), and was born of (her) the Virgin Mary;
that he is the Savior and Mediator of the whole human race,
if they, with full faith (in Him), accept the grace proffered in
Jesus; that this Jesus suffered and died, • • . . and will come
again at the last day, to judge the (quick) living and the dead.

''ArL 4. We believe in the Holy Ghost; that He is equal in
being with the Father and the Son; that He convinces the world
of nn, of righteo\une98f and of judgment; that he comforts the
faithful, and guides them into all truth.

•*Art 6. We believe that the Holy Bible, Old and New Tes-
taments, is the word of God; that it (contains) reveaU the only
true way to our salvation; that every true Christian is bound
to acknowledge and receive it (with the influence), by the
help of the spirit of God, as the only rule and guide in faith
and practice (and that, without faith in Jesus Christ, true re-
pentance, forgiveness of sins, and following after Christ, no one
oan be a true Christian. We also believe that what is con-
tained in the Holy Scriptures, to wit, the fall in ^^^ Adam
and redemption through Jesus Christ, shall be preached
throughout the world.) [

"^Art 6. We believe in a holy Christian church (the com-
munion of saints, the resurrection of the body, and life ever-
lasting) composed of trxke heUeverey in which the Word of Ood i$
preached by men divinely eaUed^ and the ordinances are duly ad-
ministered; that this divine institution it for the maintenance of
worship^ for the edification of believers^ and the conversion of the
world to Christ.

''Art. 7. We believe that the (ordinances) saeraments, bap-
tism and (the remembrance of the sufferings and death of our
Lord Jesus Christ) the Lord^s Supper^ are to be in use in tJie
churchy and should be practiced by all (Christian societies)
Christians (and that it is incumbent on all the children of God
particularly, to practice them); but the (manner in which
ought) mode of baptism^ and the manner of observing the Lord's
Supper^ are always to be left to the judgment and understand-
ing of every individual. AlsOy the baptism of children shall be
left to the judgment of believing parents. The example of the
washing of feet is to be left to the judgment of each one. to
practice or not; (but it is not becoming of any of our preachers
or members to traduce any of their brethren whose judgment
and understanding in these respects is different from their own,

Digitized by


^8 Rusais V, B&A2ZELL. [HiflflOQii,

either in public or in private. Whosoever shall make himself
guilty in this respect shall be considered a tradooer of his
brethren, and shall be answerable for the same.)

*^Afi* 8. We believe thaJt man i» fatten from original righi8w»
neUf andf apart from tJie grace of our Lord Je$m ChrUt^ m no<
only entirely destitute of holinesa, btU is inclined to <rtl, and only
evil, and that continually; and that, except a man he horn aj^atn,
he cannot see the kingdom of heaven.

105 *«^;.^, p^ fp^ believe that penitent sinners are juitifUd be-
fore Ood only by faith in our Lord Jesus Christ, and not 6y
works; yet that good works in Christ are eiceeptahle to Qod, and
spring out of a true and living faith.

*^Art. 10. We believe that regeneration is the renewal of thi
lieart of man after the im^gs of Ood, through the Word, by thi
act of the Holy Ohost, by which the believer receives the spirit of
adoption, and is enabled to serve Ood with the unil and the affec'

'*i4rf. 11, We believe that sanctification is the work of GodU
-grace, through the Word and the Spirit, by which thou who hare
-been bom again are separated in their acts, words, and thought
Jrom sin, and are enabled to live unto Ood, and to follow hclinest
vfithout which no man shall see the Lord,

*'ArL 12. We believe that the Christian Sabbath is ditituiy ap-
pointed; that it is commemorative of our Lord^s resurrection from
the grave, and is an emblem of our eternal rest, that it is essential
to the welfare of the civU community and to the permansnce and
growth of the Christian church; and that U should bs revereidly
observed as a day of holy rest, and of social and puUie worship.

*Mrt. 13. We believe in the resurrection of the dsad^ the fvtws
general judgment, and an eternal state of rewards^ in which the
righteous dwell in endless life, and tJie wicked in endless punu^

This arrangement is adopted from Bear v. Heaalej, 98 IGch.
300, 301.

The old constitution provided that the general conference
''shall consist of elders, elected by members of every conference
district throughout the society." The new provides that the
general conference shall consist of elders and laymen, elected
in each annual conference district throughout the ehmch. The
number *^ and ratio of la}Tnen and the mode of their election
shall be determined by the general conference,** It provides
further that: "The ministerial and lay delegates shall deliberate
and vote together as one body; but the general confere&ce shall

Digitized by


March, 1895.] Rubbie v. Bbazzell. M9

haye power to provide for a yote by separate orders whenever
it deems it best to do so; and in such cases the concurrent vote
of both orders shall be necessary to complete an action."

Section 10, article 1, provides that: "The general conference
may — ^two-thirds of the members elected thereto concurring —
propose changes in, or additions to, the confession of faith; pro-
vided, that the concurrence of three-fourths of the annual con-
ference shall be necessary to their ratification.'' On the subject
of secret combinations, it declares: '^We declare that all secret
combinations which infringe upon the rights of those outside
their organization, and whose principles and practices are inju-
rious to the Christian character of their members, are contrary to
the Word of Ood, and that Christians ought to have no connec-
tion with them. The general conference shall have power to
enact such rules of discipline with respect to such combinationa
as, in its judgment, it may deem proper.''

Section 1, article 6, is as follows: ^'Amendments to this con-
stitution may be proposed by any general conference — ^two-thirds
of the members elected thereto concurring — ^which amendments
shall be submitted to a vote of the membership throughout the
church, under regulations authorized by said conference. A
majority of all the votes cast upon any submitted amendment
shall be necessary to its final ratification."

These constitute the material changes in the constitution.

The question presented by this record is, which party repre-
sents the true church of the United Brethren in Christ, defend-
ants, who adhere to the old constitution ^^ and confession of
faith, or the plaintiffs, who have accepted and are governed by
the revised confession and new constitution. Defendants in-
sist that the distinguishing doctrines of the church and its fund-
amental law have been so changed by the revision and amend-

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 63 of 121)