Fishel & Taylor v. GRIFTON UNITED METH. CHURCH

207 S.E.2d 330 (1974)

22 N.C. App. 647

FISHEL AND TAYLOR, ARCHITECTS v. GRIFTON UNITED METHODIST CHURCH, an unincorporated religious association.

No. 743SC490.

Court of Appeals of North Carolina.

August 7, 1974.

*333 R. Mayne Albright, Raleigh, for plaintiff-appellee.

Wallace, Langley, Barwick & Llewellyn by F. E. Wallace, Jr., Kinston, for defendant-appellant.

VAUGHN, Judge.

Defendant's first argument, that the trustees have not been brought before the court and that they, as holders of record title are not subject to the jurisdiction of the court, is without merit. The order of the court in the Supplemental Proceeding directing the Chairman to appear and answer was sufficient to bring the Board of Trustees before the court and make the Board of Trustees subject to its jurisdiction. Cornelius v. Albertson, 244 N.C. 265, 93 S.E.2d 147.

Defendant also argues the court erred in its findings of fact and conclusions of law. More specifically, defendant contends that the court erred in finding and concluding that the trustees were mere title holders without discretionary responsibilities, that the trust was passive and that the property was subject to sale under execution against the debtor.

We hold that the court correctly determined that the trust was passive. Among other things, the church has both actual possession and the right of disposal. See Chinnis v. Cobb, 210 N.C. 104, 185 S.E. 638; Patrick v. Beatty, 202 N.C. 454, 163 S.E. 572.

Where the trust is passive, the property is subject to sale under execution against the judgment debtor. G.S. § 1-315(a)(4).

Affirmed.

MORRIS and BALEY, JJ., concur.