
    Forbes Road Union Church and Sunday School v. Salvation Army, Appellant.
    
      April 18, 1955:
    Argued October 6, 1953; reargued March 21, 1955.
    Before Stern, O. J., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
    
      Christ C. Walthour, Jr., with him George E. Berry, Jr., for appellant.
    
      A. C. Scales, with him Seales & Shaw, for appellee.
   Opinion by

Mr. Justice Allen M. Stearns,

The appeal is from a decree in equity directing a religious corporation to deed a church edifice to another church corporation. One Judge dissented. The litigation arises from a dispute among, the congregation of. an undenominational church. and Sunday school.

The facts are largely undisputed. The small village of Forbes Road is located in Westmoreland County a number of miles distant from Greensburg. Practically all the male residents of. the village are employed by the Jamison Coal & Coke Company, a mining corporation operating in or adjacent to the village. For many years the Protestant residents conducted in the village an undenominational or nonsectarian church and Sunday school known as Forbes Road Church and Sunday School. Services were held either in a scout hall or in a school building. The Ministerial Association of Greensburg supplied ministers of various Protestant religious affiliations. Religious leaders were also supplied by the Salvation Army. Ministers or religious leaders were assigned regardless of their respective religious persuasions. The Salvation Army serves without any financial remuneration, has no separate creed, is not denominational, has no roll of members, but conducts religious services and acts as spiritual advisers to all who may attend its services. The various services were attended by the inhabitants of Forbes Road, irrespective of their religious faiths. The average attendance was between forty and fifty.

The church facilities proved to be unsuited to the community’s needs. The Jamison Coal & Coke Company was anxious that a suitable undenominational church and Sunday school be maintained in the community. In the absence of suitable facilities, children were obliged, in order to attend Sunday school, to travel a number of miles to Greensburg. Many did not possess necessary transportation facilities. To alleviate this situation the Coal Company purchased a lot in the village and commenced the erection of a church edifice. "It was f oünd .that the .'site'.so selected was not desirable,.' whereupon '. the ..'Coal. Company concluded -to help to erectin'. Church edifice'on. a -'lot úpón-th'e' Gódl ■Gúmpcuñy’s '-ówn '.d'an'd: .' .This' Was . daheU- The'.'.ChUrCh edifice was erected "from'- material', contributed, ‘by'the •Coal Company, and with funds supplied by' the’’congregation Who'also per formed.labor. The undenoininational or nonsectarian congregation was known as Forbes Road Church and Sunday School.

On May 31,1949, the Jamison Coal & Coke Company conveyed by deed the land to the Incorporated Trustees of the Salvation Army of Pennsylvania. The habendum clause of the deed reads: “This conveyance is made to the grantee herein named so that it may maintain and conduct, on the premises hereby conveyed, a Forbes Road Church and Sunday School and, in the event the operation of said Church and Sunday School by the grantee herein named, is discontinued for a continuous period of six (6) months or longer, the lot of ground herein and hereby conveyed shall revert to and again become the property of Jamison Coal & Coke Company, its successors or assigns.” (Emphasis supplied)

On April 12, 1950, over ten months after the date of execution of the deed, recorded January 9, 1950, a group of the congregation incorporated themselves under the title of the Forbes Road Union Church and Sunday School. (Emphasis supplied)

A complaint in equity was then filed by the incorporated church against the Incorporated Trustees of the Salvation Army, alleging that the purpose of the habendum clause was- to “. . . protect Forbes Road Union Church' and Sunday School for whose benefit the conveyance.was..given”; that the grantee, paid no consideration;- -that- the- grantee “oroNy”- promised - and agreed ..-.to hold -said, property in trust- only until said complainant-.could be -properly -incorporated'. ': . -and at that time-would'réconvey said-property”; that the grantee is committing a fraud in that it is . ; attempting to hold property held in trust and for which [it] paid ho consideration whatever.”

Defendant filed-preliminary objections to the complaint which were dismissed by the majority of the court, with one Judge dissenting. Defendant filed a responsive answer and a hearing was held, with the result as indicated.

Despite the thirty-second finding of fact by tbe learned Chancellor “That there was no fraud, error, or mistake made in the execution of the deed to the defendant corporation”, be held as matter of law that tbe transaction recited constituted an unjust enrichment requiring restitution, and that under tbe facts tbe defendant beld title for tbe benefit of plaintiff under tbe doctrine of a trust ex maleficio. We have read tbe testimony with care. Tbe findings of fact by tbe Chancellor are not supported by tbe record. They consist chiefly of bis inferences, deductions and conclusions.

We agree with Judge Laird who states in bis dissent that the preliminary objections should have been sustained. Tbe Jamison Coal & Coke Company clearly was a necessary and indispensable party to this proceeding. Such corporation was tbe grantor in a deed, under the terms of which there was a reverter. In the event that the grantee failed to operate tbe church and tbe services discontinued for a continuous period of sis months or longer, title was to revert to tbe grantor. If title is now conveyed, as directed by the majority of tbe court, tbe interest of tbe Coal Company, not joined as a party defendant, will be affected. Such original grantor is manifestly a necessary and indispensable party to these proceedings. Not to so join tbe grantor Coal Company is a flagrant procedural error: Hartley v. Langkamp and Elder, 243 Pa. 550, 90 A. 402; Fineman v. Cutler, 273 Pa. 189, 192, 116 A. 819; 2 Anderson Pa. Civ. Pract., p. 355, Note 17 re Procedural Rule No. 1017.

It would be futile to reverse and subsequently permit complainant to bring into tbe proceeding such necessary and indispensable party, since it is clear that in the facts of this case complainant is not entitled to the relief which it seeks. Parol evidence may not be admitted to alter and vary the written terms of a deed. The habendum clause of the deed provides that it, viz.: the grantee, the Salvation Army, is to maintain and conduct, on the conveyed premises, “a Forbes Road Church and Sunday School”. It also is part of the deed that if such services by the grantee are discontinued for a period of six months or longer title to the land is to revert to grantor. As pertinently noted in the dissent: “The deed does not say that in the case the Forbes Road Union Church and Sunday School does not operate a church and Sunday school, the lot shall revert, but that in case the Grantee — Salvation Army— shall not operate a church and Sunday school, the lot of ground shall revert.”

While there is no proof of oral promise by the grantee to convey to the incorporated church, such testimony, even if existent, would have been inadmissible. Oral testimony which sought to alter or vary the terms of the deed was improperly admitted. The leading case of Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 126 A. 791, established the doctrine that in the absence of fraud or mistake, where the parties have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. This leading case has been cited with approval in a host of cases, recent ones being Buffington v. Buffington, 378 Pa. 149, 157, 106 A. 2d 229, and Smith v. Marcus, 175 Pa. Superior Ct. 64, 67, 103 A. 2d 277.

The doctrines of unjust enrichment and trusts ex maleficio have no application in this case. The learned Chancellor found, as stated, that there was no fraud, error or mistake made in the execution of the deed to the defendant corporation. The cases relied upon by the court iu banc are clearly inapposite. Both General Casmir Pulaski Building and Loan Association v. Provident Trust Company of Philadelphia, 338 Pa. 198, 12 A. 2d 336, concerning unjust enrichment, and Hamberg v. Barsky, 355 Pa. 462, 50 A. 2d 345, were cases of actual fraud.

The preliminary objections are sustained, the decree reversed, and the complaint dismissed at the cost of appellee.  