Hayes v. Manning

263 Mo. 1 | Mo. | 1914

Lead Opinion

WALKER, J.

Plaintiffs as officers and members of a Cumberland Presbyterian Church (hereinafter referred to as the Cumberland Church) bring this suit to have reduced to their possession certain property in the city of Marshall, consisting of several lots of ground on which are located a church building, a manse or pastor’s residence, and a mission church. Plaintiffs,, by reason of the .alleged relation they sustain to the church, claim to be the equitable owners of the property, holding same in trust for the church, and that defendants wrongfully withhold same from them. Whereupon they ask a decree for the possession of the property, and that defendants be enjoined from further interfering with their right to the possession and use of same, and that the injunction be made perpetual. Defendants deny the equitable ownership of plaintiffs in the property, or that they are entitled to its possession, but allege that it is-the property of the “Presbyterian Church in the United States” (hereinafter referred to as the Presbyterian Church), the only legal successor of the Cumberland Church, as a result of a union of said churches, and deny that they have refused to permit plaintiffs to use and occupy any part of the property. The reply was a general denial.

Upon a hearing a decree was rendered in plaintiffs’ favor, and defendants were enjoined and restrained from the further use of the property. After the usual procedure they appealed to this court.

The Presbyterian and Cumberland churches have practically the same form of government, which is representative or republican, as contradistinguished from religious organizations which are either monarchial in form and governed by a hierarchy, or are pure democracies in which each particular church is a separate entity whose affairs are regulated wholly by its members.

Under the form of government of the churches here involved, a local congregation is called a particular church, which is immediately governed by a church session composed of the minister in charge and the ruling elders elected for terms fixed by the congregation.

Next in order is the presbytery, which embraces a number of particular churches within a prescribed district. The powers of a presbytery are exercised by the ordained ministers in the district and one ruling elder from each' particular church therein. Superior in authority to the presbytery is the synod, which embraces not less than three presbyteries and consists of ministers and ruling elders from each particular church. The General Assembly is the highest authority of the church. It is a representative body composed of ministers and ruling elders selected by and from each of the presbyteries.

The conflicting claims of the parties to. the property in question grew out of a union between the Presbyterian and Cumberland Churches, claimed by defendants to have been consummated by the joint action of the General Assemblies of said churches in 1906. Por a number of years prior thereto the propriety of a union was discussed generally by the members of the respective church organizations; since said union its validity has been challenged by members of the Cumberland Church, and suits have been brought by them in different jurisdictions in State and Federal courts to determine the question.

The Cumberland Church sprang out of the Presbyterian Church. Early in the nineteenth century, about 1804 or 1805-, a controversy arose between certain officers and members of the Presbyterian Church, the creed of which is termed the "Westminster Confession of Faith. This controversy, omitting minor matters, centered principally upon differences of opinion-in regard to the doctrine of predestination. This controversy gained strength and became more widespread from year to year as the individual ministers and members of the different churches acquired more liberty of thought, as has always been the case in the history of every formulated belief prepared by one set of men for adoption by others, since the abandonment of the simple faith of the primitive Christians and the promulgation of the first creed at the council of Nicea, until 1810 when three ministers of the Presbyterian Church in the State of Tennessee emphasized their opposition to the established order and by an open breach laid the foundation upon which was built the Cumberland Church. In 1813 the church thus founded established three presbyteries; a .synod was also formed, which set forth the propositions upon which the Cumberland Church differed from the Westminster Confession of Faith.

In 1829 a G-eneral Assembly of the Cumberland Church was established. In 1883 this church promulgated a constitution, and at the meeting of its General Assembly in 1906 it had grown in strength until it had a membership of 185,212, represented by 2869 congregations, 1514 ordained ministers, 114 presbyteries, and 17 synods.

In 1903 the Presbyterian Church revised its Confession of Faith in such a manner that the essential differences in doctrine between it and the Cumberland Church, which had wrought the disruption in 1804 and 1805 and. had led to the establishment of the latter church in 1810, were so far eliminated, as we measure the meanings of their respective creeds and constitutions by comparison and contrast, as to bring the two churches into substantial harmony, thus removing any reasons theretofore existing against reunion. Following the revision of the Confession of Faith by the Presbyterian Church, in 1903 the General Assemblies of the Presbyterian and Cumberland churches at their respective meetings in that year appointed committees to negotiate a union between said churches. These committees agreed upon terms and united in a report embodying same, which was to the effect that there was no material difference in the articles of faith of the two churches, and a reunion was, therefore, recommended ; this report was submitted to the General Assemblies of the respective churches in May, 1904, and was adopted by each of said Assemblies by the required majority, the vote of the Cumberland Assembly being-one hundred and sixty-two in favor of the union to seventy-four against same. Each Assembly thereupon referred the basis of union to its presbyteries, and it was approved by a large majority of the presbyteries of the Presbyterian Church and by those of the Cumberland Church by a vote of sixty in favor of the union to fifty-one against it, one presbytery approving- conditionally and two not voting. The terms of the joint report provided that the union should have binding force when approved by the General Assemblies and presbyteries of the two churches.

The vote of the presbyteries was taken and reported to the General Assemblies of the two churches in 1905, and upon being formally canvassed the result was declared in favor of the union. At the time of the meeting of the General Assembly of the Cumberland Church at which the vote of the presbyteries was reported, there was no division in the church organization or dispute as to the supreme authority of the General Assembly, as is evidenced by each presbytery voting upon the basis of unión and reporting the result to the Assembly.

In May, 1906, at a meeting of the General Assembly of the Cumberland Church at Decatur, Illinois, the report of the committee which had been canvassed at the meeting of the General Assembly of this church at Fresno, California, in the preceding year, was adopted and it was then formally declared that the union between the Cumberland and the Presbyterian Churches had been established, whereupon the General Assembly of the Cumberland Church adjourned sine die. A minority opposed to the union immediately thereafter met in Decatur, and, after a formal organization, adopted resolutions to rescind the action of the Gen-. eral Assembly which had then adjourned.

This meeting then adjourned to meet one year later in the State of Tennessee, at the place where the Cumberland Church had been founded. It was claimed by the minority that it was the lawfully constituted Generally Assembly of the Cumberland Church, and its successors have since that time held annual meetings and now claim to represent a church membership of 100,000.

The storm center of the controversy here is in the Marshall congregation. It was originally organized as a Cumberland Presbyterian Church, and was received into a presbytery of that denomination within whose bounds it was located, which presbytery was in allegiance with the proper synod, and the latter bore a like relation to the General Assembly. The property in dispute was purchased, so far as the record discloses, with funds furnished by the members of the congregation, and was conveyed to the trustees of the Cumberland Presbyterian Church of Marshall, Missouri. The pastor of the Marshall congregation, while the basis of union was under consideration, was the stated clerk of the Cumberland General Assembly, and was secretary of the committee of the union of which he was an active advocate. The members of the congregation had knowledge of this fact. It was his practice upon his return from the General Assembly, the synod or the presbytery, to report the proceedings to the church session and the congregation. The session of the Marshall church at no time failed to recognize the authority of the General Assembly in the various steps taken in relation to the union, and raised no question as to its jurisdiction or power. Delegates were from time to time sent from this church to the presbytery and synod, which judicatories were, during all of this time, advocating the union. After the union was declared constitutionally adopted by the General Assembly at Fresno, California, in 1905, the session of the Marshall church, by its acquiescence recognized the validity of this proceeding, and the absence of any antagonistic action indicated that the congregation understood that the session intended to abide by the same: The plaintiff Hayes was an elder and a member of the church session during the entire four years the union was under consideration, and at the time of its consummation in 1906, instead of dissenting, he took part, as did other members, in the church session, and acquiesced in whatever action was taken.

After the final adjournment of the Cumberland General Assembly in May, 1906, the plaintiffs retained their membership in the Marshall church, and participated in its services. The plaintiff Hayes in addition to his membership in the session, and his acquiescence in the action of the church, continued to act as assistant superintendent of the Sunday School conducted under the auspices of the church, and neither he nor any' of the other members of the church manifested any dissent until the meeting of December 13, 1906, when an election of church officers-was to take place. Plaintiff with other members of the congregation then withdrew therefrom and left the defendants in possession of the buildings and property now sued for. In March, 1907, the dissentients organized a congregation under the jurisdiction of the Assembly, which had been attempted to be formed in Decatur after the adjournment of the regular Cumberland Assembly. This was ten months or more after the union had been consummated, and more than three months after .the withdrawal of plaintiffs from the congregation and their leaving the defendants in possession. So much for the local coloring given by the facts to this controversy.

To a proper understanding of the merits it is not amiss to give in substance such portions of the organic law of the Cumberland Church as we deem relevant to the questions here involved:

“25. The church session exercises jurisdiction over a single church; the presbytery, over what is common to the ministers, church sessions, and churches within a prescribed district; the synod, over what belongs in common to three or more presbyteries, and their ministers, church sessions, and churches; and the General Assembly, over such matters as concern the whole church; and the jurisdiction of these courts is limited by the express provisions of the constitution. Although each court exercises exclusive original jurisdiction over all matters specially belonging to it, the lower courts are subject to review and control of the higher courts in regular gradation.

“40. The General Assembly is the highest court of this church, and represents in one body all the particular churches thereof. It bears the title of the General Assembly of the Cumberland Presbyterian Church, and constitutes the bond of union, peace, correspondence, and mutual confidence among all its churches and courts. ... It shall meet as often as once every two years . . . and shall consist of commissioners from the presbyteries.

“43. The General Assembly shall have the power to receive and decide all appeals, references and complaints regularly brought before it from the inferior courts; to hear testimony against error in doctrine and immorality in practice, injuriously affecting the church; to decide in all controversies respecting doctrine and discipline. ... To receive under its jurisdiction other ecclesiastical bodies whose organization is conformed to the doctrine and order of this church.

“60. Upon the recommendation of the General Assembly, at a stated meeting, by a two-thirds vote of the members thereof, the confession of faith, catechism, constitution, and rules of discipline, may be amended or changed when a majority of the presbyteries, upon the same being transmitted for their action, shall approve thereof.

“111. It is a prerogative of these courts, ministerially, to determine controversies of faith and questions of morals, to set down rules and directions for the better ordering of the public worship of God and government of ITis church, . . . and authoritatively to determine the same, which determinations are to be received with reverence and submission. ’ ’

church union I. The material issue here is as to the right of the General Assembly of the Cumberland Church to un^e w^h the Presbyterian Church. If the right existed, then the possession of the property involved should be restored to appellants; if the power to unite was lacking, then the judgment of the trial court awarding the possession of the property to the respondents was correct.

Concretely stated, the attitude of the parties is that respondents deny the legality of the steps leading to the union, from which it follows that it has not, therefore, been lawfully consummated. They claim that they constitute the true Cumberland Church, and as such are entitled to all of the property belonging to that body before the union; that appellants have abandoned the ancient church and faith, and have caused themselves to be absorbed by another and a different religions organization, and so having done they have no legal interest in or title to the property. Appellants contend on the contrary that the union having been authorized by a two-third’s vote of the General Assembly, the highest judicatory of the church, and approved by a majority of the presbyteries, in conformity with the requirements of the constitution, the union became an established fact.

It cannot but be helpful in elucidating the question under consideration to ascertain what the attitude of the Cumberland Church has been in regard to a union with the mother church, from the time the former sprang from the loins of the latter, down to the consummation of the union in 1903.

At the first meeting of the Cumberland presbytery formed at the time of the foundation of this church in 1810, a circular letter was framed and issued, expressing in no uncertain terms a wish and desire to reunite with the Presbyterian Church whenever it could be done on gospel principles. This feeling was reiterated at the meeting in 1811. In 1812 this declaration was made: “That this Presbytery has always beón, and expects to be, ready and willing for union with the general Presbyterian Church on Gospel principles.” In a resolution adopted by the Cumberland Presbytery in 1813 it was recited that “this Presbytery has made every reasonable effort to be reunited to the General Presbyterian Church.”

At the meeting of the General Assembly of the Cumberland Church in 1860 a resolution was adopted affirming the readiness of the church “to reciprocate fraternal feelings with all Christians, but expressing more especially a desire for union with the great Presbyterian family, and to see all the branches thereof represented in one General Assembly.” In 1867 the Cumberland General vlssembly negotiated with the Southern Presbyterian Church for a union therewith, and to that end without a protest or dissent, committees were appointed to formulate plans looking to the union. It failed, however, not because any questions arose as to a lack of power, but because the Southern Church was unwilling to agree to the proposed modifications of the doctrinal statement. In 1873 an attempt was made to unite with the Presbyterian Church U. S. A. The lack of authority of the General Assembly in this regard was in no way intimated. In 1882 proceedings were begun for union with the Evangelical Beform Church, which was not consummated, but not on account of any question as to the power of the General Assembly. In 1885 a proposition was under consideration for a union with the Methodist Protestant Church; it was not effected, but no one asserted a lack of power in the Cumberland Church to so unite through the instrumentality of its General Assembly. In 1898 a judiciary committee of the General Assembly of the Cumberland Church proposed unions with other denominations as follows: “All schemes and proposals for consolidation or for church co-operation with other churches are of such nature that they fall within the scope of the Assembly’s constitutional power; therefore, resolved, that no such proposals should be made to other churches by any part of this church, nor, if made by other churches, or part thereof, should they be publicly considered by any part of this church, until after the General Assembly shall have properly authorized such proceedings.” These unopposed instances on the part of the church, indicative of a desire and purpose to unite with other organizations of like faith, are supported by precedents from the history of the Presbyterian Church, which, with a similar constitution, has always held it possessed the inherent power to unite with other churches, and has not infrequently exercised same. The union of the Old and New School churches in 1869, that of the Beformed Synod of the South, with the Southern Church, during the Civil War between the States, and the uniting of the Southern Church in the seventies with the Presbyterian Church U. S. A. are illustrations of the exercise of this power in the absence of express authority therefor in the constitution. Illustrations of this tenor extending over a period of ninety years are ample evidence that the church’s highest judicatory was at all times seeking union with religious organizations of similar faith. The absence of protest against these repeated efforts towards union of which the membership had notice, is proof that they met with general approval. These efforts cannot be construed other than as an interpretation of the power given by the constitution in this regard. The Cumberland Church is a voluntary association and its constitution is in the nature of a contract between its members.

Church’s Constitution: Practical Construction. This is true of any religious organization which owes its existence to a compact between its members, and, if it has adopted a constitution, it is the embodiment of the terms of the compact by virtue of which it was formed and under which it is to be conducted. [Bear v. Heasley, 98 Mich. 279.] The members in entering the organization, therefore, surrender the right of individual action in church matters except in the “particular churches,” and confer whatever power they otherwise possess upon the different judicatories in their order, the General Assembly, as we have shown, being the highest and having not only executive but legislative and judicial power as well; thus panoplied it has interpreted its constitution as conferring power upon the Assembly to not only inaugurate but to consummate a union with another organization. This is a practical construction made by a representative body of the church best qualified to know what the organic law means, and under a familiar rule of interpretation will be followed by the courts. [Wallace v. Hughes, 131 Ky. l. c. 470; First Pres. Ch. of Louisville v. Wilson, 14 Bush, 252.]

church union: constitutional Authority. II. Despite this long continued construction of the .constitution given by the church’s highest judicatory and the approval of this construction by the individual membership, it is claimed, in the absence of express words, that no power exists in the constitution authorizing the union of the church with another organizatión. This contention is based on the language of section 25, supra, which provides in effect that “the jurisdiction of the church judicatories is limited by the express provisions of the constitution.” The individual members are not authorized to participate in the government of the church except that they may select the ruling elders in their respective congregations. The power -of the church is conferred on the four courts we have enumerated, and under said section 25' their power is distributed as therein indicated. Instead, therefore, of the limitation above quoted applying unqualifiedly to the constitution, its effect is simply to mark the boundaries between the jurisdictions of these courts so as to prevent the encroachment of one upon the authority conferred upon the other. To illustrate, the authority of the church session is limited to one church, while the jurisdiction of the General Assembly extends over the entire church as an organization. The limitations, therefore, of the language in question apply only to the General Assembly should it attempt to exercise, jurisdiction over a particular church except by appeal. We would not be understood as holding, however, that.the words quoted from said section 25 have no other effect than to define the scope of power of the different church courts in relation to each other, but that each must find in the constitution authority for the performance of their several acts; but this construction does not require that a court in the exercise of its powers must find in the organic law an express provision authorizing each particular act; this would have the effect to exclude all implied authority or inherent power which courts of the character of these judicatories possess by reason of their organization and to enable them to exercise the duties imposed on them. An implication of authority to do whatever may be necessary to be done or to execute a power conferred or perform a duty imposed, always follows a grant of specific power or the imposition of a definite duty upon a person or a court. [State ex rel. v. Assurance Co., 251 Mo. l. c. 301; Shull v. Boyd, 251 Mo. 452; State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; State ex rel. v. Board of Eq., 108 Mo. l. c. 242; McKay v. Minner, 154 Mo. l. c. 612; Trout v. Livery & Undertaking Co., 148 Mo. App. l. c. 637; Sutherland, Stat. Con., see. 334.] Under the foregoing elementary rule it follows that if any duty was imposed by the constitution upon the General Assembly, or authority was thereby conferred upon it which required or authorized union with another organization, then the authority had its basis in the express provision which imposed the duty or conferred the power from which the implication arose. As we have stated, the General Assembly was the highest court of the church, it was empowered to pass all necessary laws, rules and regulations for the whole church; it could dissolve any of the other judicatories in the enforcement of discipline. It is expressly declared in the constitution that it represents “in one body all of the particular churches thereof” and constitutes the bond of union and the means by which “the peace of congregations is preserved and mutual confidence cultivated and encouraged. ’ ’ It would be difficult to conceive of a more ample expression of authority conferred or duty imposed than is to be found in the foregoing language; from it the conclusion is authorized that the General Assembly is “the embodiment and expression of the sovereign power of the whole church,” not only as represented by its subordinate judicatories, but by its individual membership, “and that it could do for the churches and for the membership whatever they could have done if they had been assembled for that purpose.” [Brown v. Clark, 102 Tex. l. c. 333.] Further than this it provides that the Confession of Faith, catechism, rules of discipline and the constitution itself may be amended or changed by the affirmative action of two-thirds of the members of the General Assembly voting thereon, with the consequent approval of á majority of the presbyteries, in the same manner in which the question of union was submitted in this case.

We should not lose sight of the fact that the constitution and rules of discipline are practically all there is of church government and organization, and the right to change these includes as a necessary consequence the power to adopt either a new constitution or rules of discipline, or to change the form of government of the church or any of its established features or institutions, proper regard being had in the exercise of any of these powers that the distinctive doctrines of the church are not ignored or sought to be abrogated. [Com. of Missions v. Pacific Synod, 157 Cal. 105, 121.]

Church Union: consent of individuai Members. III. But it is contended if power exists in the General Assembly to unite the church with another organization, it cannot become effectual in the absence of the affirmative vote therefor of a-majority of the individual members of the church, n , . , , and it not appearing that such majorjpy ever consented to the union, it has never been legally consummated. This contention is based on the assumption that the sovereign power of the church vests in the individual members, and although the presbyteries and General Assembly have been clothed with power to change matters of procedure and the internal organization of the church, yet these bodies have not been authorized to adopt measures to effectuate the union of the church with another church which would efface the church’s entity and cause it to take a name descriptive of another and a different organization.

One joining an organized society such as a church having a representative form of government under the supervision and control of judicatories known as church courts, agrees by the act of membership to abide by the rules, orders and judgments of such courts properly made, and consents that whatever rights and privileges he may possess as a member shall be controlled by such rules, orders and judgments. A Cumberland church is an organization representative in character, its actions are directed and controlled by the judicatories we have designated; one joining such a church, therefore, surrenders the right of individual action in its affairs except as authorized in the selection of deacons and elders in a particular church, and agrees to the maimer and form of government of the entire organization. His formal vote and those of his associate members are consequently not necessary to validate any powers which have been conferred by the constitution by express terms and necessary implication upon the General Assembly and the presbyteries. Especially is this true in the Cumberland Church in which the promise is exacted from persons joining same that they will abide by and support the rules and regulations of the church while members thereof.

In view of the relation above defined which the individual bears to the Church, it follows that the powers granted to the General Assembly and presbyteries when exercised by them are binding upon all of the members regardless of whether the action meets with their approval or not; the alternative of those who disapprove is simply withdrawal from the organization, for the fact of membership implies an agreement to abide by the actions of the governing body. [Watson v. Jones, 13 Wall. 679 ; Lamb v. Cain, 129 Ind. l. c. 513; Mack v. Kime, 129 Ga. l. c. 17; White Lick Quar. Meeting v. White Lick Quar. Meeting, 89 Ind. l. c. 151; Bear v. Heasley, 98 Mich. 279.]

This being true, it follows as a necessary consequence that the individual members of the Cumberland Church are bound by the action of its General Assembly and presbyteries in effecting the union unless authority to make it has been withheld by express inhibition from these judicatories which are otherwise admitted to be clothed with absolute power in directing the affairs of the church.

Church Union With Larger Body: Change of Name: Surrender of Organization. IV. There is no provision in the constitution prohibiting union by the Cumberland Church with another whose faith is in harmony with its own; on the contrary, in addition to the inherent powimplioation of the right to union in er we have referred to, there is a clear section 60, supra, which, as we have seen, provides that the Confession of Faith, catechism, constitution and rules of discipline may be changed in the manner therein pointed out. As was said by McCullough, C. J., of the Supreme Court of Arkansas: “How could language be broader or express 'greater power? The changes thus authorized cover everything for which the church stands, everything which justifies its separate existence, including doctrine, form of government and mode of worship. Even a change of name and separate identity fall within the wide sweep of this power.” [Sanders v. Baggerly, 96 Ark. 117.]

Among the other comprehensive powers found in the constitution it is provided in section 43 “that the General Assembly shall have power ... to receive under its jurisdiction other ecclesiastical bodies whose organization is conformed to the doctrine and order of this church; to authorize synods and presbyteries to exercise similar power in receiving bodies suited to become constituents of those courts and lying within their geographical bounds respectively.”

The contention of those who oppose union is that this section, while authorizing union by the General Assembly with a smaller organization, does not include the power to unite with a larger church and to take its name and ecclesiastical organization as its own. The comment on this contention by counsel for appellants in Wallace v. Hughes, supra, is so appropriate that we do not deem it improper to quote the substance of same: “We are not able to understand the refinement of construction which admits that the Cumberland Assembly has the right to permit other churches to unite with it, yet had no right to allow it to unite with others; this is much like saying it is lawful for a man to wed but it is not lawful for any one to wed him. As we understand the contention of those opposing this union, it would have been regular if the uniting body had taken the name of the Cumberland Church and it had been a smaller organization than the church with which it became united. ’ ’ The absurdity of this interpretation of the powers granted by section 43 is to our mind apparent without analysis or argument. The luminous comment of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, upon the construction to be placed upon the language of a constitution is not inappropriate in this connection: “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be understood by the human mind. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of objects themselves. ... In considering this question, then, we must never forget, that it is a constitution we are expounding.”

The powers granted in the sections referred to, together with section 111, supra, and others not set forth above, but of like import, are, to state it conservatively, strongly indicative of the fact that the church courts have all the power under the Presbyterian form of government, save as limited by the constitution, and that it was not contemplated by the founders of either the mother church or its Cumberland offspring that the civil courts should be called upon to settle matters primarily ecclesiastical, although incidently involving-property.

So completely has the power of the judicatories named been recognized and exercised in the governmental affairs of the church that, from the foundation of the parent association at Westminster Abbey in 1649 down to the carving out of the mother church of the Cumberland Church in 1810, no question has arisen in either organization as to any express, inherent or implied governmental powers of the individual members, and since that time in neither has such a right in the individual members been asserted until the meeting of the so-called Assembly of a minority of the Cumberland Church at Decatur, Illinois, after the union here under consideration had been effected.

The manner in which its constitution was framed and adopted is illustrative of the recognition by the Cumberland Church of the power of its G-eneral Assembly. Although organized in 1810 it did not attempt to adopt a constitution until 1883. When steps were taken to frame and adopt this formal compact, no vote of the individual membership or of the church sessions was taken, nor was it ever considered or claimed that the same was an existing right or necessary to the validity of the proposed instrument, but the entire matter, in harmony with the nature of the organization as a representative body, was left to the consideration and determination of the General Assembly and the presbyteries. “If these bodies could thus, in the absence of express authority, determine the form of church government, the statement of its doctrine, the rights and privileges of its members, and the'powers and duties of its various judicatories, it is clear they must have power to do so now since the constitution clearly confers it on them. Limitations are absent as to the form or mode of exercising this power.” The foregoing is the gist of the reasoning on this subject by Judge Shaw of the Supreme Court of California (Com. of Mis. v. Pac. Synod, 157 Cal. l. c. 124) who concludes that “a formal amendment to the constitution is not a measure of this power; but it may be exercised in any reasonable way, and hence a resolution is authorized which declares that henceforth the rights, privileges and powers of the members, ministers, courts and subordinate bodies shall be enjoyed, not separately as before, but in unison and conjunction with another church of similar faith and government but of different name.” Prom which we are justified in the conclusion that the exercise of this power by the General Assembly and presbyteries is not dependent for its validity upon the vote of the individual members.

Church Union: Property Rights: Examination of Creeds and Documents. Y. But it is contended that the existence of this power may be admitted to exist in the judicatories named, yet notwithstanding the civil courts have the authority and it is their duty in investigating property rights, to compare the creeds of two churches attempting union and award the property to the parties whether in the majority or the minority, who, in the judgment of such civil courts, have adhered to the faith and doctrines existing prior to the attempted union. The rule is thus announced here by a divided court in an elaborate and exhaustive opinion by Graves, J. (Boyles v. Roberts, 222 Mo. 613)., in the reasoning and conclusions of which we are unable to agree. While the conclusion reached in the main opinion in Boyles v. Roberts, supra, is clear and unequivocal, as is characteristic of the utterances of the judge there speaking for the court, it is a question whether its effect as to the right of a civil court to review the decisions of an ecclesiastical tribunal incidentally affecting property rights, was not destroyed by the language employed in the opinion of the court (l. c. 696) overruling the motion for rehearing, concurred in by four judges, as follows: “In a case involving title to property, if a question arises as to the meaning of certain clauses in the Confession of Faith of a particular church and if the parties litigant are all members of the same church and if the highest ecclesiastical court of that church has put on the disputed clauses a certain interpretation, this court would adopt that interpretation as conclusive; but if the parties litigant on one side were not members of the church, we would have to take the written Confession of Faith and interpret it as we would any other written instrument.”

• The Supreme Court of Tennessee in Landrith v. Hudgins, 121 Tenn. 556, while admitting the inherent power of the church to unite with another, held as in Boyles v. Roberts, supra, that the civil courts would not be bound by the rulings of the church courts in disposing of the rights to church property.

We may, in the discussion of this branch of the instant case, without ignoring any apposite precedents, dismiss from consideration any cases from the English courts on account of the union between the Church and State in Great Britain, while in this country under both the National and State Constitutions the civil authorities have no right to interfere in matters ecclesiastical.

The question as to the extent to which civil courts will interfere in the affairs of a church, where property rights are involved, has been considered and determined by many courts of- last resort in our different States and by a number of subordinate tribunals. The rulings have not been wholly uniform, but the pronounced trend of authority is that if a church, as an organization, has created a tribunal, or, as termed in the Presbyterian government, a “judicatory,” having jurisdiction to determine differences between its members as to creed, doctrine or discipline, the civil courts will not attempt to review or revise the judgments therein rendered. The lack of uniformity in the rulings of the civil courts consists in the fact that in some the decisions of the church courts are held to be persuasive and are followed by the civil courts except when they are held clearly to be wrong, while in others, if the matter in controversy relates to creed, doctrine or discipline, the judgment of the church court is held to be conclusive upon the civil courts, although property rights may be incidentally involved.

The Supreme Court of the United States, two United States Circuit Courts of Appeals, one United States District Court, the Supreme Courts of eleven of the States, and two State Courts of Appeals have held that the civil courts will not interfere with the judgments and decrees of the highest judicatories of churches in regard to church government or dogma, although property rights may be incidentally involved. The Supreme Courts of two States have held to the contrary. So much for the current of authority. The reasons adduced we have discussed elsewhere.

The leading case upon this subject is Watson v. Jones, 13 Wall. 679, which holds that where a right to property is asserted in a civil court dependent upon doctrine, discipline, church law, rule or custom, and the question has been determined by the highest tribunal within the organization, the civil courts will accept that decision as conclusive and rule accordingly in a case before them. The rule announced in the Watson case is held not to apply (1) to property conveyed to a church where a specific trust has been imposed on same by the grantor or donor; nor (2) where the property is held by a church entirely independent of other religious associations and owes no fealty to a higher authority, but (3) it is held to apply to a class of cases in which property is acquired in any of the usual modes for the general use of a religious body which is itself an integral part of a larger organization, as is the fact in the instant case. State ex rel. Watson v. Farris, 45 Mo. 183, rests upon the doctrine announced in Watson v. Jones, supra, although decided several years before the latter case. The Watson-Parris case, supra, strongly and clearly declares in favor of the doctrine of noninterference by civil courts in the decisions of superior ecclesiastical tribunals, in accord with the present current of authority, but under a different state of facts the court in a later case (Watson v. Garvin, 54 Mo. 353) disapproved the position taken in the Watson-Parris case as to the binding effect of church courts upon the question of their own jurisdiction where property rights were dependent thereon, as is held in Boyles v. Roberts, supra.

In Mack v. Kime, 129 Ga. 1, 24 L. R. A. (N. S.) 675, the Supreme Court of Georgia held in effect, that where property is acquired by a church in the ordinary way by purchase or gift, (as in the case at bar) for the use of such church, the civil courts will only inquire as to who constitutes the church or its legal successors and award to them the use of the property, but will not in case of a schism in the organization, inquire into the existing religious opinions of those who adhere to .the acknowledged organization.

In Presbyterian Church, v. Cumberland Church, 245 Ill. 74, the Supreme Court of Illinois held that in a controversy over property between churches which are but subordinate members of a larger organization, and have a supreme church tribunal with general control over such churches and their property,- which latter is not held under a special trust imposed by deed or devise, civil courts will be bound by the decision of the church’s supreme judicatory as to who is entitled to the property.

In Sanders v. Baggerly, 96 Ark. 117, the Supreme Court of Arkansas held that the law was well established by the great weight of authority that on questions of church doctrine or discipline, in which property rights may be affected, the civil courts are governed exclusively by the decisions of the church courts or judicatories, where such courts are created and vested with authority under the constitution of a given church to decide those questions.

In Pleas. Gr. Cong. v. Riley, 248 Ill. 604, the Supreme Court of Illinois, following its former ruling in Presbyterian Ch. v. Cumberland Ch., supra, held that under the system of church government of the Cumberland Church the General Assembly is the highest authority and its decisions upon questions of faith and doctrine must be accepted as final and binding upon the civil courts.

In Brown v. Clark, 102 Tex. 323, it was held by the Supreme Court of Texas that the decision of the General Assembly of the Cumberland Church that there was no material difference between its articles of faith and those of the Presbyterian Church, was binding upon the civil courts as affecting the question of the succession to property.

In White Lick v. White Lick, 89 Ind. 136, the Supreme Court of Indiana held that where a schism occurs in a church organization which leads to a separation into distinct bodies, the respective claims of such bodies to the control of church property must be determined by the church law accepted and adopted before the division took place, which will be recognized by the civil courts.

In Carothers v. Moseley, 99 Miss. 671, the Supreme Court of Mississippi held that the union between the Prebyterian and Cumberland Churches was an ecclesiastical question, and the decision of the highest judicatory under the Presbyterian form of government adjudging the union valid will be recognized by the civil courts, and the church court’s decision, that the united church is entitled to the property will be upheld.

In Harris v. Cosby, 173 Ala. 81, the Supreme Court of Alabama held that where a religious association holds property as a member of some general church organization in which there is a supreme ecclesiastical tribunal with general and ultimate power of control, its rulings will be recognized by the civil courts.

The great weight of authority supports the rule announced in the foregoing cases that the decisions of the highest court of a church as to purely ecclesiastical questions within the jurisdiction of such courts to decide, will be accepted as conclusive by the civil courts in the determination of property rights. The curious may consult in support of this conclusion these additional cases: Barkley v. Hayes, 208 Fed. 319; Perm. Com. of Miss. v. Pacific Synod, 157 Cal. 105; Trinity M. E. Church v. Harris., 73 Conn. 216, 50 L. R. A. 636; Ramsey v. Hicks, 174 Ind. 428, 30 L. R. A. (N. S.) 665; Lamb v. Cain, 129 Ind. 486, 14 L. R. A. 518; Brundage v. Deardorf, 34 C. C. A. 304, 92 Fed. 214; East Norway Lake Church v. Halvorson, 42 Minn. 503; Presby. Church v. Cumberland Church, 34 Okla. 503; Id. v. Id, 245 Ill. 74; Bentle v. Ulay, 175 Ind. 494; Middleton v. Ellison, 95 S. C. 158.

The rule that civil courts mil not attempt to review or revise the judgments of the highest church courts has its foundation in the provisions of the National and State constitutions having reference to religious freedom. While Fussell v. Hail, 233 Ill. 73, is held not to involve a question of property rights, it nevertheless very clearly states the reason why the civil courts will not interfere with the rulings of purely ecclesiastical courts as follows: “Our constitution says: ‘The free exercise and enjoyment of religious profession and worship, without discrimination, shall he forever guaranteed.’ Such freedom . . . cannot be maintained if the civil courts may interfere in matters of church organization, creed and discipline, construe the constitution, canons or rulings of the church and regulate and revise its trials and the proceedings of its governing bodies.”

Church Property: Impressed With Specific Religious Trust. VI. Respondents contend, however, that the property in question is impressed with a specific religious trust and that they are holding to the faith adhered to by the church when the property was acquired, and consequently it should be awarded to them. Is the assumption of the existence of a specific trust correct? Such a trust is created when property is deeded or donated for the express purpose of inculcating or advancing some particular form of faith or creed, and not where, as in this case, the property has been purchased by the organization for use as a house of worship or a minister’s residence, and conveyed to the trustees of the church.

There is nothing in the deed under which the title passed to the church or the trustee in its behalf which limits the use of the property.. The presumption arising from this state of facts is that it was the intention of the grantor, or for that matter, the purchasers of the property, that the same be devoted to religious purposes in such a manner and way as the governing body shall, under the rules and the organic law, determine; and so long as any religious organization can be reasonably ascertained to be that governing body or its regular successor it is entitled to be awarded the possession and use of the property. This rule has the well reasoned sanction of many cases in different jurisdictions, to-wit: Watson v. Jones, 80 U. S. 726; Wallace v. Hughes, supra; Mack v. Kime, supra; First Bap. Ch. v. Fort, 93 Tex. 215, 49 L. R. A. 617; Brown v. Clark, supra; McGinnis v. Watson, 41 Pa. St. 16; Com. of Mis. v. Pac. Synod, supra; Horsman v. Allen, 129 Cal. 136.

The mere conveyance of the property to the trustees of the Cumberland Church under the above authorities, does not create such a specific trust as will authorize the awarding of same to respondents; but it may be contended that it was purchased with donations made for and in aid of the church, and that this perforce creats a trust that would be violated and the funds perverted if the possession of the property be awarded to the united church.

In determining the nature of the tenure of the property, the fact must not be ignored that it was purchased by and conveyed to “the trustees of the Cumberland Church,” and that the title thereto as a consequence is subject to such changes as may be made in the constitution and laws of the organization.

The identity of the Cumberland Church, save as to the word “Cumberland,” is not lost. Its synods, presbyteries, church sessions and particular churches remain the same as before the union, except that they are now acting conjointly with the united church. Its confession of faith has been held by its highest judicatory, which holding has been approved by its presbyteries, to be the same as that of the united church. Can it, therefore, be reasonably contended- that the elimination of the word “Cumberland” and the substitution in lieu thereof of the words “Presbyterian Church, U. S>. A.” destroys the identity of the former and renders the latter a different and a distinct organization? There is nothing to support the contention that the property was purchased under a specific trust and that it be retained for the use of the church under any particular name or while the exact creed as defined in the articles and constitution of the Cumberland Church was being taught; on the contrary property deeded, devised or donated under the facts appearing here, whether for the use of a particular church or for the entire church, is not impressed with a specific trust, and its power to unite with another church of like faith and order carries with it, if need be, the power to eliminate its name and substitute another therefor, especially when it adheres to the generic term “Presbyterian” under which we designate the followers of the Calvinistic faith in this country. [Pleas. Grove Cong. v. Riley, 248 Ill. 604; Com. of Missions v. Pac. Synod, 157 Cal. 105.]

Church union: R¡ghteto°f Property. VII. The facts authorize the application of the doctrine of waiver in this case. This is a feature which does not appear from the evidence in Boyles v. Roberts, supra, and in this particular the cases may be clearly distinguished. It is well in the discussion of this branch of the case to mark out some of the distinctive differences between waiver and estoppel in order that the rules applicable to each may not be erroneously applied. As pithily put by Russell, J., of the Court of Appeals of Georgia in Kennedy v. Manry, 6 Ga. App. 816, “while waiver is a member of the family of estoppel, an estoppel in,pais has connections in nowise akin to waiver.” Waiver is a voluntary surrender of some known advantage, benefit or right which, except for such waiver, the party would have enjoyed. This court, in Henderson v. Koenig, 192 Mo. 714, said: “A waiver occurs ‘when one in possession of any right, whether conferred by law or by contract, and with full information of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards. ’ ’ ’

An estoppel most briefly stated is a previous act which precludes denial. While difficult at times to distinguish estoppel from waiver, these distinctive differences may be noted: Waiver, as defined, is the voluntary surrender of a right, while estoppel is the inhibition to assert a right from the mischief that has followed; waiver involves knowledge and intention, while estoppel may arise where there is no intention to mislead; waiver depends upon what he himself intends to do, while estoppel depends rather upon what he has caused his adversary to do; waiver may affect the other party beneficially, while estoppel results form an act which operates to the injury of the other party; waiver does not imply that one has been misled to his prejudice, while estoppel always involves this element. In short, waiver may be created by acts or declarations insufficient to create an estoppel. [Shaw v. Spencer, 100 Mass. 382; Libby v. Haley, 91 Me. 331; Kiernan v. Dutchess Co. Mut. Ins. Co., 150 N. Y. 190; Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 53; Insurance Co. v. Young, 86 Ala. 424; Cassimus Bros. v. Scottish Union & Natl. Ins. Co., 135 Ala. 256; Knarston v. Manhattan Life, 140 Cal. 57.]

These distinctions having been made, let us examine the facts as to the conduct of plaintiffs to enable it to be determined whether or not the doctrine of waiver may properly be applied. The declaration by the General Assembly that the union had been adopted as required by the constitution was made in May, 1905. In May, 1906, the Cumberland General Assembly adjourned sine die and immediately thereafter the minority who constituted the dissenting commissioners, formed the separate organization which styled itself “The Cumberland Church.” With a full knowledge of these facts, plaintiffs not only remained in the Marshall church so far as their formal memberships were concerned, but they participated in all of the services; one of them was an elder and several others were officers who continued to discharge their respective duties as before the union. The relationship of plaintiffs as officers and members of the church after the union was in nowise different from that of defendants. This condition continued until December, 1906, or more than six months after the union had been effected, when plaintiffs withdrew from connection and communion with the Marshall church. However, it was not until March 29, 1907, that plaintiffs essayed to organize a separate congregation, and this suit for the possession of the property was not brought until November, 1909. For more than six months, therefore, plaintiffs, with seeming approval, not only acquiesced in the union, but personally participated in evident good faith in the various activities of the church. “Actions,” says the homely adage, “speak louder than words,” and no other reasonable construction of plaintiffs ’ conduct, measured by human experience, can be given than that they not only accepted but approved the action of their judicatories in effecting the union. This acceptance and approval, while lacking the essentials of estoppel, falls properly under the classification of a waiver. This court has said, not once, but many times, that-no man is compelled to stand on a right given him by law. [Henderson v. Koenig, supra; Williams v. Railroad, 153 Mo. l. c. 519; Fulkerson v. Lynn, 64 Mo. App. 649.] Whatever this right may be, he may waive it if he chooses so to do, and without agreement or consideration, and lacking the essentials of an estoppel the waiver may be held to be valid and binding. The contention is not tenable that plaintiffs were entitled to wait until the meeting of the congregation for the election of officers, six or seven months after the union had been consummated, before affirmatively announcing their opposition to the same. This could better and with more semblance of good faith have been done when the pastor of the church, who was the stated clerk of the General Assembly, returned from the meeting of that body in 1906 after the union had been effected, and publicly announced the action that had been taken by the church’s highest judicatory. Of this plaintiffs were aware and, in fact, they well knew every step that had been taken, as did the membership of this and other congregations of like faith, because the matter was. one of public notoriety, which had long been discussed, and the presumption might properly be indulged, if the record did not disclose the fact, that the members of the church at Marshall and elsewhere were familiar with the entire matter. Equity does not favor inertia where one in possession of all the facts fails to act; but we have more here than inaction, viz: acquiescence coupled with conduct, which rightly construed meant approval not for the nonce, but by repeated acts of fellowship and service for months after the Marshall church had been affiliated with the united church. Under these facts, which, if not expressly admitted are not denied, a court of conscience is asked to decree that the plaintiffs are entitled to the possession of the property in question. If no other sufficient reason existed to preclude our so holding, plaintiffs ’ pronounced waiver would suffice.

Comment upon the influence for good reasonably resulting from the union of two such religious organizations as we have here, we have avoided as beyond the province of a judicial opinion; we have therefore contented'ourselves after having ascertained the facts, in applying the rules of law thereto necessary to determine the matter at issue. Whether we subscribe to them or not, wé respect the different forms of religious faith to which men give their honest allegiance, because each is in a way a factor for good, a helpful lever to lift civilization to a higher level. In this spirit, although our remarks may be gratuitous and irrelevant, we are impelled by history to award a meed of praise to the followers of the gloomy Genevan, who, while subscribing to what Taine calls the “harshest of all religious conceptions, ’ ’ have, nevertheless, everywhere at all times been the champions of human liberty. “To the Calvinists,” says Motley, who was not of the faith, “more than to any other class of men, the political liberties of Holland, England and America are due. ’ ’ Mark also what Froude says in this regard: “If it be a creed of intellectual servitude, it has been able to inspire and sustain the greatest efforts ever made by man to break the yoke of unjust authority. When all else failed; when patriotism covered its. face and human courage broke down; when intellect yielded, as Gibbon says: ‘with a smile or a sigh-,’ content to philosophize in the closet or worship abroad with the vulgar; when emotion and sentiment and tender piety became the handmaids of superstition and forgot that there was any difference between lies and truth — that slavish belief called Calvinism, in one or the other of its forms, has ever borne an inflexible front to illussion and mendacity and has preferred rather to be ground to powder like flint than to bend before violence or melt under enervating temptation.”

So much for the testimony of three witnesses who certainly cannot, on account of their personal convictions widely at a variance with Calvinism, be said to be biased. Buckle, Lecky, Bancroft, Carlyle, Macaulay and Greene render like testimony that the followers of this creed whether known as Puritans, Covenanters, Roundheads, Independents or Presbyterians, have in every land sustained the cause of liberty against the tyranny of princes. It matters not, therefore, except as to the extent of its efforts for the emancipation of the individual, whether its churches be divided or united. Divided, each in its own sphere will work out its destiny; united, it will'present a solid phalanx against all forms of oppression.

From all of the foregoing the conclusion follows that the judgment of the trial court is in error; the case will, therefore, be reversed and remanded, with directions to the circuit court to dissolve the injunction, dismiss plaintiffs’ petition, and enter judgment in favor of the defendants for the possession of the property and against the plaintiffs for all costs.

Lamm, G. J., Woodson and Far is, JJ., concur; Brown, J., concurs in the result; Bond, J., concurs in the result for • the reason that plaintiffs ratified the church union; Graves, J., dissents and files a separate opinion.

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Dissenting Opinion

GRAVES, J..

(dissenting). — I shall write but little in this dissent. For a full discussion of the question in this case I refer the curious to the opinion in Boyles v. Roberts, 222 Mo. 691. I dissent here for the reasons there expressed. It is indicated in the opinion here that the opinion of Valliant, O. J., in the Boyles case, supra, on motion for rehearing, modifies the original opinion. This is not true in any sense when the two opinions are carefully read. The distinguished Chief Justice in the very opening of his opinion says:

“The opinion of my learned brother Graves, in which I concur, so completely covers all the points in the case that I hesitate to attempt to add anything more, but in the motion for a rehearing there are two points urged with so much earnestness and force by the learned counsel for respondents that in deference to them I feel constrained to say a few words.”

The italics are ours. Nor would the writer have concurred in such opinion on the motion for rehearing it had it changed the original opinion “one jot or tittle.” These opinions, however, speak for themselves and need not be further discussed.

In my brother’s opinion it is said that the doctrine announced in the Boyles ease, supra, to the effect that civil courts will compare the creeds of two churches, and award the property to the church which has adhered to the doctrine of the original church pri- or to the seism, is not approved, or to be more exact, that the Boyles case is not approved' upon that question. The Boyles case is not the only Missouri case announcing the rule (as announced in Boyles case) that civil courts will adjudge church creeds in performing their constitutional duty of determining property rights. The rule announced in the Boyles case was the same rule announced in the following Missouri cases: Watson v. Garvin, 54 Mo. l. c. 377, in an opinion by Adams, J., concurred in by Vories, Sherwood and Napton, JJ.; Prickett v. Wells, 117 Mo. l. c. 504, by Barclay, J., concurred in by Black, C. J., and Macearlane, J.; Brace, J., taking no part; Fulbright v. Higginbotham, 133 Mo. l. c. 677, by Macfarlane, J., concurred in by Brace, P. J., and Barclay and Robinson, JJ.; and Russie v. Brazzell, 128 Mo. l. c. 113, by Macearlane, J., in which Brace, P. J., Barclay and Robinson, JJ., concurred. So that omitting the concurrence of Valliant, C. J., and Burgess and Pox, JJ., in the Boyles case, we have the concurrence of nine former judges of this court to the rule announced in the Boyles case. Including the Boyles case we have the, judgment of thirteen judges of this court upon the exact doctrine now disowned. With the views of these judges I am as yet satisfied, and accordingly dissent to the opinion in this case.