Kelsey v. Jackson

50 S.E. 951, 123 Ga. 113, 1905 Ga. LEXIS 391

• Court: Supreme Court of Georgia
• Decided: May 15, 1905
• Status: Published

Opinion

Lumpkin, J.

(After stating the facts.) 1-3. An action can not be brought by or against an unincorporated church as an entity. Thurmond v. Cedar Springs Baptist Church, 110 Ga. 816; Mutual life Ins. Co. v. Inman Park Presbyterian Church, 111 Ga. 677; Wilkins v. Wardens of St. Mark’s Church, 52 Ga. 351. Incorporation which will authorize suit to be brought by or against a church may be had under section 2351 of the Civil Code, or by filing a certificate as provided in section 2355 of the Civil Code. See also §§ 2356, 2357. Where it does not appear that a church has been incorporated, or that a certificate has been filed, but it is alleged that the title to the trust property is in certain trustees, a proceeding to subject the trust property to a debt for which it is liable can be brought under section 3202 of the Civil Code; and to such action the trustees are the only necessary parties. Josey v. Union Loan & Trust Co., 106 Ga. 608, 611.

4. A church is not a commercial organization which holds property by itself, or through trustees, for purposes of gain and profit. The advancement of religion is of the essence of the trust. The pastor is a factor in such promotion. A church is bound to pay the salary of the pastor. And as he must be housed, where the contract under which he is employed includes both the payment of a salary and the rent of a parsonage for his occupancy, the entire debt stands on the same basis of equity and justice. If the divine law does not prompt the members to pay such a debt, human law will enforce it. Lyons v. Planters Loan & Savings Bank, 86 Ga. 485. In the absence of other property, the church edifice and site in the hands of trustees can be subjected for the payment of such a debt. Civil Code, § 2361.

Judgment reversed.

All the Justices concur, except Candler, J., absent.