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Kelley v. Riverside Blvd. Ind. Church

OPINION FILED DECEMBER 28, 1976.

B.L. KELLEY, ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,

v.

RIVERSIDE BOULEVARD INDEPENDENT CHURCH OF GOD ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is a religious property dispute. The plaintiffs are B.L. Kelley, Harold Downing and Larry Petty, who are the members of the State Board of Trustees for the Church of God, State of Illinois, hereinafter collectively referred to as plaintiffs. The plaintiffs filed a declaratory judgment action asking that certain deeds be set aside and that conveyances be made to them of certain real estate situated in the City of Rockford. They also sought an accounting for the personal property controlled by certain of the defendants. The defendants in this case, as they are included in the amended complaint, are the Riverside Boulevard Independent Church of God, an Illinois not-for-profit corporation, the City National Bank & Trust Company of Rockford, as trustee under a certain trust agreement dated October 13, 1972, A.J. Lovelady, Vernon Hersey, Aaron J. Gray and Olis Hersey, individually and as trustees of the Virginia Avenue Church of God, and also the Virginia Avenue Church of God, an Illinois religious corporation. Except when otherwise necessary because of their individual status in this litigation, these people will be collectively referred to as the defendants.

Certain of the defendants filed a counterclaim against the original plaintiffs in this suit and named as additional parties Wayne S. Proctor, Harold Thompson, as Illinois State Overseer, Church of God, an unincorporated religious association having its general headquarters in Cleveland, Tennessee, and the named members of the General Board of Trustees of said Church of God, the unincorporated religious association. This counterclaim sought reformation of certain deeds involved in this suit, to quiet title to the disputed real estate in defendants, and also damages and an accounting.

After the various parties had filed answers and replies to the complaint and counterclaim, defendants moved for a partial summary judgment as to one parcel of the real estate involved herein. Attached thereto was a copy of the deed conveying that parcel of real estate to the trustees of the Virginia Avenue Church of God and a copy of the affidavit of incorporation of the Virginia Avenue Church of God. Plaintiffs filed an answer to defendants' motion for summary judgment and moved for summary judgment in favor of themselves on all issues. Attached to plaintiffs' motion was an affidavit of H.B. Thompson, the Illinois State Overseer of the Church of God, and part of the discovery deposition of defendant Olis Hersey. Thompson's affidavit included portions of the minutes and supplements to the minutes of the Church of God, which had also been attached as exhibits to the amended complaint. Defendants filed an answer to plaintiffs' motion for summary judgment, asserting that Thompson's affidavit was not based on his personal knowledge, that he would not be a competent witness to testify to many matters stated therein, and that many of said matters were conclusions and not statements of fact. Defendants' answer also asserted that there were several issues of fact still before the court, and that the plaintiffs' motion for summary judgment did not set forth any facts in contradiction of those contained in their own motion for summary judgment on part of the case. Defendants, however, did not attach any affidavits to their answer. The trial court granted the plaintiffs' motion for summary judgment and denied the defendants' motion for summary judgment. The effect of the trial court's ruling was to give the plaintiffs control of the real estate which is the subject of this action. The trial court, however, denied the plaintiffs' additional prayer for an accounting of the personal property. All of the defendants, except the City National Bank & Trust Company of Rockford, have appealed from the portions of the order which are adverse to them and the plaintiffs have filed a notice of appeal from the portion of the order denying their prayer for an accounting.

The facts in this case are somewhat complicated but we will endeavor here to set them forth in chronological order. The two predecessors of the Virginia Avenue Church of God were the Rockford Northside Church of God and Rockford Parkside Church of God, which were both alleged to have been members of the Church of God of Cleveland, Tennessee, and to have become such respectively on November 24, 1957, and July 17, 1959. Also, on November 24, 1957, the Virginia Avenue Church of God, an Illinois religious corporation, was organized and three trustees were elected. Defendant, Olis Hersey, executed an affidavit to this effect one year later on November 24, 1958, but said affidavit was not recorded until August 8, 1962.

On October 24, 1960 the first of the deeds in controversy in this suit was executed and recorded. The grantors in the 1960 deed were Vernon Hersey and Olis Hersey, husband and wife and the premises conveyed consisted of Lots 26 and 27 of the Sunset Hills Second Addition in Rockford, hereinafter referred to as the Virginia Avenue property. The deed was entitled "Church of God Warranty Deed" and the relevant portion of it reads as follows:

"* * * the said grantors do GRANT, BARGAIN, SELL and CONVEY unto grantees, Vernon Hersey, A.J. Lovelady and Marvin Gryder, as trustees of the Church of God, and their successors in trust and constituting the Local Board of Trustees of the Church of God at Rockford, in Winnebago County, Illinois, the following described lands * * *."

This grant was subject to the following described limitations:

"The said Local Board of Trustees shall hold title to, manage and control the said real estate for the general use and benefit of the Church of God, having its general headquarters in Cleveland, Tennessee, and for the particular use and benefit of the local congregation of the said Church at Rockford, Illinois.

The said Local Board of Trustees shall have full right, power and authority to sell, exchange, transfer and convey said property, or to borrow money and pledge the said real estate for the repayment of the same, and to execute all necessary deeds, conveyances, etc., provided the proposition shall first be presented to a regular or called conference of the said local church, presided over by the State Overseer of the Church of God, or one whom he may appoint, and the project approved by two-thirds of all members of the said local congregation present and voting.

If the local congregation at the place above designated shall at any time cease to function or exist, then said Trustees shall hold title to said real estate for the Church of God generally in the State where said real estate is located; and said Trustees shall convey the said real estate upon demand to the State Board of Trustees of the Church of God in said state, which said State Board shall be authorized to either use said real estate, or the proceeds derived from the sale of same (said State Board being authorized to sell and convey the said real estate at any time after title is vested in it), for the founding of another Church of God in the same state, or for the promotion of one already existing.

If at any time the Local Board of Trustees shall cease to exist or to perform its duties, then the State Overseer of the State in which said real estate is located, shall have the power to declare all offices on the said board vacant, and the State Board of Trustees of the Church of God for the state shall automatically then hold title.

The limitations set forth herein are those appearing in the Minutes of the 42nd General Assembly of the Church of God held at the Municipal Auditorium, Birmingham, Alabama, August 28-31, 1948."

The parties seem to be in agreement that on October 24, 1960, Hersey, Lovelady and Gryder, the named trustees, were also the trustees of the Virginia Avenue Church of God, the aforementioned Illinois religious corporation.

On September 21, 1963, Olis Hersey and Vernon Hersey, husband and wife, executed another deed conveying the same property covered by the 1960 deed. The 1963 deed recites that it was made to correct the former 1960 deed and states:

"It was the meaning and intent of the grantors in said former deed and in this deed that the grantee be correctly designated as `Virginia Avenue Church of God', being the same religious corporation referred to in Affidavit of Incorporation recorded in Book 1341 of Recorder's Records at page 349 in said Recorder's Office [the previously mentioned affidavit of incorporation of the Virginia Avenue Church of God]."

The other differences between the two deeds are as follows: (1) in the 1963 deed the named grantees are described as trustees of the "Virginia Avenue Church of God," and not as trustees of the "Church of God"; (2) the first sentence in the limitations section of the 1963 deed recites that the real estate is held for "the general use and benefit of the Virginia Avenue Church of God, having its general headquarters in Cleveland, Tennessee, and for the particular use and benefit of the local congregation of the said Church at Rockford, Illinois"; and (3) the 1963 deed is typewritten, whereas the 1960 deed was on a printed form, with only the names of the grantors, grantees and description of the property appearing in typewriting. However, the 1963 deed is also entitled "Church of God Warranty Deed" and the remaining four paragraphs of the limitations section are exactly the same as those set forth above which appeared in the 1960 deed. The 1963 deed was recorded on October 4, 1963.

On April 27, 1972, Clifford Britton and Charlotte Britton, husband and wife, conveyed the second piece of property involved in this dispute, hereinafter referred to as the Riverside Blvd. property, to "Vernon Hersey, A.J. Lovelady and Aaron J. Gray, as Trustees for the Virginia Avenue Church of God, 4426 Virginia Avenue." This deed was duly recorded on May 1, 1972, and contains certain restrictions and covenants proscribing the holding of religious services in temporary structures on the property and restricting the type of single family residence which might be built upon any portion of the 11-acre property. In this deed, however, there is no mention of the Church of God of Cleveland, Tennessee, and there are no restrictions similar to those set forth above which appeared in the 1960 and 1963 deeds of the Virginia Avenue property. Certain of the documents filed in this matter ...


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