concurring:
I concur in the end result reached by the majority, but on the narrow grounds that the matter at issue is foreclosed by this Court’s former opinion in Board of Church Extension v. Eads, 159 W.Va. 943, 230 S.E.2d 911 (1976). Although the majority concludes that the doctrine of res judicata is not applicable, it does so with no discussion of the principle. It is clear from Eads that the Court did discuss the issue of the right of a foreign corporation to hold land or bring an action in this State under W.Va.Code, 31-1-79 (1965), as demonstrated by Syllabus Points 5 and 6.1 In Syllabus Point 1 of Pearson v. Dodd, 159 W.Va. 254, 221 S.E.2d 171 (1975), we gave the following test for the application of res judicata:
“To justify the application of the doctrine of res judicata, ‘ * * * there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the person for or against whom the claim is made.’ Opinion. Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698 [, 127 S.E. 644].” Syllabus, Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729 (1949).
See also Moore v. Sun Lumber, 166 W.Va. 735, 276 S.E.2d 797, 800-01 (1981).
In Hannah v. Beasley, 132 W.Va. 814, 820, 53 S.E.2d 729, 732 (1949), after stating a substantially similar rule, we quoted with approval this statement from Kemp v. Miller, 166 Va. 661, 674, 186 S.E. 99, 103 (1936):
“When a second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties.”
There can be no doubt that at the time of Eads, a rupture had occurred between the local church and the Indiana church corporation. There was no question in Eads but that the Indiana church corporation was claiming ownership of the property through the reverter clause. The majority in Eads found that the condition triggering *274the reverter clause had not been met, which was a resolution that the local church was no longer in fellowship and doctrinal unity. However, the status of the foreign church corporation’s right to hold a property interest in this State was still a viable issue. Regardless of when the re-verter was triggered, the property interest would have to pass to the foreign church before it could be reeonveyed to trustees.
The Eads’ dissenting opinion suggests that the defects of the foreign church corporation could be easily cured, and, in fact, this current litigation was brought about by the church’s passing a proper doctrine out of unity resolution and conveying the property to trustees. The present suit challenges the validity of the reverter title of the Indiana corporation and its conveyance of the property to trustees.
I do not believe the doctrine of res judi-cata can be so easily brushed aside as the majority has done. The underlying policy of res judicata is to put an end to litigation once there has been a proper hearing and to preclude parties from piecemeal litigation. See generally 46 Am.Jur.2d Judgments § 395, et seq. (1969); Moore v. Sun Lumber Co., supra. The fact remains that the validity of the foreign church corporation’s right to hold the property and to transfer it to trustees is still the central issue in this case. This was the same issue decided in Eads and, therefore, I believe that the doctrine of res judicata forecloses our consideration of this appeal.
Regrettably, the majority rejects any analysis of the doctrine of res judicata and proceeds to discuss our prohibition against a church incorporating in this State as found in Section 47 of Article VI of the West Virginia Constitution as a species of statutory mortmain.2 The majority fails to understand that the English mortmain statutes, which were designed to prevent or restrict the conveyance of land to any corporation, was a result of the peculiar nature of the English feudal system and the rights it gave to the overlord. Such statutes were not directed solely against religious corporations. See II Scott, Law of Trusts §§ 96.2, 117.1 (3rd ed. 1967). Comparable mortmain statutes were enacted in England against charitable trusts holding real property, including the Georgian Statute of Mortmain, 9 Geo. II, ch. 38 (1736), which was cited by the majority in Eads. See also IV Scott, Law of Trusts § 362.3 (3rd ed. 1967).
The majority’s reliance on these English mortmain statutes which restricted the transfer of property to corporations, as a means of illuminating the meaning of our constitutional provision against incorporation of churches, is a dubious exercise at best. In fact, the English mortmain statutes were never thought to be in force in this country unless they had been legislatively adopted. Perin v. Carey, 24 How. (US) 465, 16 L.Ed. 701 (1860); Hubbard v. Worcester Art Museum, 194 Mass. 280, 80 N.E. 490 (1907); Rivanna Navigation Co. v. Dawson, 3 Grat. 19, 46 Am.Dee. 183 (Va.1846). Moreover, the mortmain statues have now been abolished in England. IV Scott, Law of Trusts § 362.3 (3rd ed. 1967); Note, Mortmain Statutes: Questions of Constitutionality, 52 Notre Dame Lawyer 638 (1977). If we were dealing with W.Va.Code, 35-1-8 (1923), which restricts the amount of land that church trustees can hold, some analogy to the mortmain statutes might be helpful, but in this case the reliance on mortmain statutes is misplaced.
If I were to deal with our constitutional provision prohibiting a church from incorporating in this State, as it relates to the issue in this case as to whether a foreign church corporation can acquire title to real estate, I would do so on general law as to the validity of such deed. Despite the majority’s view of State v. American Baptist Home Mission Society, 96 W.Va. 447, 123 S.E. 440 (1924), that case provides a partial *275solution to this problem by holding that a deed to a foreign church corporation is not void ab initio. This means that if such foreign corporation conveys title to a third party before any challenge is made to the title, such third party obtains a valid title. This appears to be the general law elsewhere and has the beneficial effect of preserving land title. Annot., 37 A.L.R. 200 (1925); Annot. 62 A.L.R. 494 (1929); 36 Am.Jur.2d Foreign Corporations § 171 (1968).
Here, where there is a present controversy over the right of the foreign corporation to hold under the reverter clause, I believe that the original grantees would have standing to challenge the validity of the reverter clause. The situation is analogous to United Fuel Gas Co. v. Hill, 112 W.Va. 10, 163 S.E. 613 (1932), where we permitted assignees of the original grantor to challenge a church’s right to hold property under a reverter clause. The reverter clause provided that the property would revert to the grantor if the church discontinued use for more than a year of the church building located on the property. In Hill, this Court recognized the general statement announced in American Baptist Home Mission Society, supra, that only the State could challenge a deed to an incorporated church. The Court also indicated that the operation of the reverter clause could be separately challenged by the grantor’s assignees, citing United Fuel Gas Co. v. Morley Oil & Gas Co., 102 W.Va. 374, 135 S.E. 399 (1926). The same rights of the grantor’s assignees would, of course, belong to the grantors, as in this case.
From a policy standpoint, this position makes sense to me as it involves an attack on a reverter interest by those presently owning the fee. Such litigation is designed to settle who has the present fee interest and will involve all of those who have a current ownership interest in the property. It does not attempt to upset a deed that conveys a fee ownership that is absolute on its face, nor does it involve those who may be bona fide purchasers under such deed. These latter types of challenges are precluded under American Baptist Home Mission Society, supra, because they obviously can lead to attacks on legal titles many years after the title has passed out of the hands of the original grantee who was prohibited by some statutory or constitutional enactment from holding property.
In the present case, because the litigation is between the current owners of the fee and the holders of the reverter interest, the policy against unsettling land titles does not apply. I would conclude that the Indiana church corporation is not entitled to assert its reverter interest. The reason for this conclusion is found in Lunsford v. Wren, 64 W.Va. 458, 63 S.E. 308 (1908), where we held that our constitutional provision
“inhibit[s] the granting of any charter of incorporation to any church or religious denomination. An attempt to create such a corporation would be void, and confer upon it, as such, no powers of contract or other corporate powers. Powell v. Dawson, 45 W.Va. 780, 32 S.E. 214.”
Under Lunsford’s reasoning, the incompetency of such church to incorporate precludes its ability to sue, contract or take property in its corporate capacity in this State. This is independent of any provision of our corporation law.
I am authorized to state that Justice McGRAW joins me in this concurrence.
. Syllabus Points 5 and 6 of Eads, supra, state:
"5. A non-resident corporation which is directly responsible to the General Assembly of the Church of God and has general responsibility in the area of home missions work among American Indians and minority groups, makes loans to congregations who are building, takes care of conditional deeding of church property, and has responsibilities in the area of evangelism and building fund campaigns is a church within the contemplation of W.Va. Const., art. VI, § 47, and under W. Va. Code, 31-1-79 [1965] cannot qualify to do business or conduct business in a corporate capacity in this State.
"6. Under W. Va.Code, 31-1-79 [1965] a nonresident church corporation could not maintain an action as a party plaintiff in a court of this State, and as the prohibition against a church corporation's maintaining an action is in furtherance of a legitimate public policy enunciated in W.Va. Const., art. VI § 47 and is not a burden upon interstate commerce such as to invalidate it by virtue of the Commerce Clause of the Constitution of the United States, such a provision is valid and will be enforced.”
. Section 47 of Article VI of the West Virginia Constitution provides:
"No charter of incorporation shall be granted to any church or religious denomination. Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purposes of such church, or religious denomination.”