Ward v. Crisp

On PbtitioN to Rehear

The appellants have, filed a respectful and forceful petition to rehear, based on the argument presented by the original assignments of error. This petition, though, is grounded on the proposition that "the facts as stated in the answer must be taken as true”, and, that the answer alleged "no action was contemplated affecting the property of the local church.”

We have again considered this matter and must disagree with appellants. Under Section 3 of the original bill it was alleged that there was an organization known as the Assembly of the Church of God whose purpose it was to manage and control all the churches throughout the land of that faith, and, that there was an *520 overseer whose duty it was to manage this Assembly. It was also alleged in this section of the bill that a-portion of the membership and the pastor had joined the Assembly for the purpose “of having the Assembly rule said Church which was contrary to said restriction.” It was also alleged that the “defendants and members of the church are seeking to direct the trustees of the church, the defendants herein, to convey the property described to the Assembly of the Church of God, which they have no right or authority to do under the law according to the facts stated herein. ’ ’

Under these allegations an injunction was asked “to prohibit the defendants from conveying the said property to the Assembly”.

In the answer of the defendants they say that they admit the allegations “of Section 3 of said bill, except that they do not admit the allegations of the bill as to desires of Mrs. Ward’s husband nor admit that his desires are material, since restrictions in the deed in question are plainly set forth and must control.”

After making these admissions as to the allegations of the bill the defendants say that “there has been no action taken or contemplated to place the physical property of the church in the control of the General Assembly of the Church of God or to any overseer of said church, . . . ”. The answer then avers as a fact that on a vote of the membership and friends that 60 voted to continue “in cooperation with the General Assembly with only the complainant Ward and wife and the complainant Palmer voting against so remaining in cooperation.” It seems to us from these allegations that there is, if not a clear admittance, an inference that the defendants contemplated taking possession of the *521 physical property, that is, if the Assembly rales the Charch it aatomatically controls the physical property. Under sach an admitted fact the raling of the Chancellor on an ecclesiastical matter is a mere incident to the property right involved. The restriction in the deed asked to be enforced is that the named charch “is to be raled by the majority of the said charch members, and not by the Assembly. ’ ’

We have not in any way, by oar original opinion herein or now, intended to modify the rale of this Coart that “matters of fact stated by way of defense in the answer or in avoidance of the right alleged in the bill are to be taken as trae, bat this does not exclade legal inferences that may be reasonably drawn from the facts stated.” Seat v. Seat, 172 Tenn. 618, 623 , 113 S. W. 2d 751, 753 . We think this is a good and salatary rale and have intended herein to stay within the rale.

We think, thoagh, from the allegations of the bill and the answer, when taken as a whole, that the only legal inference to be drawn therefrom is that the effect of the action taken herein was to transfer the.control of the physical property of this charch to the General Assembly. It is for this reason that the injanction of the Chancellor was snstained. The petition to rehear mast be denied with costs.

All concar.