May 2, 2018 § 1 Comment
As we discussed yesterday, it was a dispute over whether the local church held property in trust for the denomination that brought First Presbyterian Church of Starkville into litigation with the Presbytery of Saint Andrew, PCUSA.
Justice Randolph’s majority opinion in Presbytery of Saint Andrew, PCUSA v. First Presbyterian Church PCUSA of Starkville, Mississippi, decided April 12, 2018, includes a precise summary of the law of trusts in Mississippi. I thought it would be something you might find useful:
¶23. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Mississippi law requires that “no trust of or in any real property can be created except by written instrument signed by the party who declares or creates such trust. . . .” Miss. Code Ann. § 91-8-407 (Rev. 2013). Neither party asserted the existence of any writing signed by the proper FPC officials after authorization that satisfies Section 91-8-407,whether by original deed or separate trust instrument. Likewise, no declaration of trust is filed in the land records of Oktibbeha County, Mississippi, as provided by Section 91-8-407(b)(2).
¶24. No express trusts were entered into by the parties under traditional Mississippi trust law. No reference exists in any deed to creation of a trust relationship. It follows that no clear expression of an intent to create a trust exists, nor any reference even to the term “trust.” Neither party has asserted the opposite. Likewise, no separate document such as a trust instrument exists in writing. Again, neither party asserts the contrary.
¶25. None of the elements of creation of an express trust are present, such as the writing, the clear intent of the trustor, or the confirming authority of creation of a trust and the transfer of property by the governing body. See Church of God Pentecostal, 716 So. 2d at 208. Therefore, no traditional express trust nor any legally enforceable and separate traditional trust instrument exists or existed that would operate to vest a beneficial interest in and over the legally titled property of FPC to PCUSA.
¶26. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) constructive trusts and (2) resulting trusts.
¶27. A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester, 753 So. 2d 1057, 1064 (Miss. 2000). FPC purchased the property at issue. No evidence exists that PCUSA invested any funds into the acquisition of any of the parcels of land. No evidence of any documents, oral conversations, minutes, or other written or oral supporting evidence exists that any arrangement of trust was contemplated in the tradition of a constructive trust. No constructive trust is implied by law based on the facts as agreed upon by the parties.
¶28. A resulting trust “is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.” Robert E. Williford, Trusts, 8 Encyclopedia of Mississippi Law § 73:2, 422 (2001). Additionally, Section 91-8-407(a)(2) specifically requires the intention to create a trust. When FPC incorporated in 2003, no intention to create a trust or create an express trust relationship existed. Furthermore, it is clear that PCUS disclaimed any interest in church trust property until just before the merger forming PCUSA. Although a trust provision was placed in the constitution when PCUSA was formed, the local churches were granted the right to opt out of that provision. FPC took measures on several different occasions to exercise its right to opt out. It did so in session meetings and bylaws of incorporation; it did so with reassurances by officers of PCUSA that compliance with the opt-out would allow FPC to hold title to its property. It is
reasonable to conclude the consistent position of FPC as representative of its intent that FPC wanted to remain, as it always had, the owner of its property. There is no evidence of a resulting trust.