145 Ind. 361 | Ind. | 1893
Lead Opinion
— This was an action for the recovery of the possession of real estate, in the ordinary form
The real estate sought to be recovered in the action, is a church building, erected on the land described in the complaint for, and was used as a house of worship unitedly by the Mount Tabor Regular Baptist Church, of Boone county, Indiana, from a time when the building was erected, shortly after the date of the deed conveying the land to her trustees named, and their successors in office, for the use of said church, on June 30, 1857, until the summer of 1889, when a division took place in the congregation, on account of a difference in belief between the two' factions on points of doctrine and practice. Ever since the last named date, each of these factions has been claiming to be the only Mount Tabor Regular Baptist Church; the appellants being the trustees lawfully elected by the minority faction, and the appellees being the trustees elected by the majority. This state of affairs renders it incumbent on the court to ascertain from the evidence, if we can, which one of these factions
These provisions of the fundamental law not only take away all power of the State to interfere with religious beliefs, but they leave the citizen perfectly free to repudiate the faith and belief he once professed, and adhere to and adopt a new creed and faith differing from that of the church to which he belongs, or he may repudiate his old belief and faith without adopting any new one, and these changes he may adopt as often as to him may seem proper, and the law will protect him. in it. In other words, the law allows every one to believe as he pleases, and practice that belief so long as that practice does not interfere with the equal rights of others.
But that is a very different thing from the claim of a right of a church member to repudiate the faith and doctrine upon which his church was founded, and at
The main contention of the appellees is that they represent the majority of the members of the church that belonged thereto’ at the time that the division took place, and that the acts, rules and orders adopted by them in the regular course of church business are the acts of Mount Tabor Regular Baptist Church, and therefore binding on all members, both majority and minority, whether those acts were in accord with the laws, usages,, practice, faith, and belief upon which the church was originally founded or not.
In other words, their contention substantially amounts to this: that the acts of the majority, done in the regular course of church business, is. the law of the church, no matter how great the departure from the original faith and law upon which the church is founded.
While the appellants contend that the acts of the majority, though done in the regular course of church business, but in violation of the laws, usages, faith, and principles upon which the church was founded, and over the protest and objection of the minority, are not binding on anybody, and are not the acts of the church.
We have read the evidence, which is very voluminous, consisting of over six hundred printed pages, and find that there is no substantial conflict on any material point in the case.
This church was organized on the third Saturday of July, 1835, and it then adopted articles of faith, which read as follows, to-wit:
“A declaration of the faith and practice of the church of Jesus Christ, called Mount Tabor. Having*367 been enabled, through Divine grace, to give up ourselves to the Lord, and likewise to one another, by the will of God we count it a duty incumbent upon us to make a declaration of our faith and practice to the honor of Christ and to the glory of His name, knowing that with the heart man believes unto righteousness, so with the mouth confession is made unto salvation.
“First. We believe in one only true and living God, and that there are three that bear record in heaven, the Father, the Son, and Holy Ghost, and that these three are one.
“Second. We believe that the Scriptures of the Old and New Testament to be of Divine authority, and the only infallible rule of faith and practice.
“Third. We believe in the fall of man, and that all of Adam’s posterity are sinners by nature, and that they have neither will nor power to save themselves from their tempted and sinful state by their ability which they possess by nature.
“Fourth. We believe in the election by grace, according as He has chosen us in Him before the foundation of the world, that -we should be holy and without blame before Him, in love, having predestinated us to the adoption of children by Jesus Christ to crown us according to the good pleasure of His will.
“Fifth. We believe that sinners are justified by the righteousness of God, which is in Jesus Christ imputed to them by Divine and supernatural operation of the spirit of God, and that they are kept by the power of God through faith unto salvation.
“Sixth. We believe that baptism and the Lord’s supper are ordinances of Jesus Christ, appointed in His church, and none but true believers are fit subjects for either; and that the proper mode of baptism is immersion.
*368 “Seventh. We believe that no minister has a right to administer those ordinances only such as have been regularly baptized and come under the interposition of the hands of a presbytery by the authority of the church of Jesus Christ.
“Eighth. We believe in the resurrection of the body, both of the just and the unjust, but everyone in his own order; they that have done good to the resurrection of life, and they that have done evil to the resurrection of damnation; and that God has appointed a day in which He will judge the world in righteousness by Jesus Christ, and that the joys of the righteous will be eternal, and the punishment of the wicked everlasting.
“Ninth. AITóf which doctrines are contained in the Old and New Testament, and we do agree sincerely, to practice and maintain them to the glory and honor of the Lord Jesus Christ, and to the mutual peace and comfort of one another.”
And the church adopted at the nest meeting in August of that year the following rules of decorum, to-wit:
“First. It shall be the duty of the church to appoint a moderator, and it shall be the duty of the moderator, when appointed by the church, to open the meeting by singing and prayer, at least by prayer; give timé and opportunity for any business that may come before the church; keep order and reprove the unruly.
“Second. It shall further be the duty of the moderator to notify the brethren of sister churches that may visit us to sit with us; and who so notified shall be at liberty to give their views on any question that may come before the church, but not to vote on the decision.
“Third. To open a door for the reception of mem*369 bers in.the church; to give time and opportunity for matters and dealings that may be in gospel order.
“Fifth. To give time for reference, giving preference to matters touching fellowship.
“Sixth. It shall be the duty of a member, when he w'ishes to speak to any question, first to rise from his seat and address the moderator in a Christian-like manner; and when speaking, if he shall wander from the subject, it shall be the duty of the moderator to call him to order; and when called to order, he shall immediately sit down, unless suffered to explain himself by the church.
“Seventh. No brother shall speak more than twice to any question without leave from the church.
“Eighth. No motion shall be taken up in the church without first being seconded.
“Ninth. All questions coming before the church in order, shall be taken up and determined by a majority, except the reception of members in the church and appointing officers, which shall be by unanimity, except there be but two objectors. In that case, the objectors will let their objections be known, and then, if the church think them to be trifling and unfounded, they may act as if there were no objections.
“Tenth. We declare an unfellowship' with all benevolent institutions designed for religious purposes; that is to say, Sunday and theological schools, Baptist conventions, temperance societies, foreign and home mission societies.
“Eleventh. It shall be the duty of the clerk of this, church to keep a record of all proceedings of this church in a book provided by the church for that purpose, and sign the orders of the church; and also to keep a list of the names of members in the church separate from any other business of the church.”
The Mount Tabor Regular Baptist Church joined, and became a member of what is known as the Dan-ville association. This association was organized in 1853. Those parts of its constitution material to the question here involved are as follows, to-wit:
“1. The association shall be established on the*371 principles of the union, and shall be composed of members chosen by the different churches and sent to represent them in the association, who, upon producing letters certifying their appointment, shall be entitled to a seat
“2. The letters from the different churches shall be expressive of their situation, together with their days of their church meetings.
“3. The members thus chosen and convened shall be denominated the ‘Danville Association,’ but shall not have power to lord it over God’s heritage so as to infringe on any of the internal rights of the churches. Nevertheless, we agree that the churches composing this association shall stand in the same relation to each other in the association as the individual members in churches do to each other, viz: If one church trespass against a sister church she shall be dealt with according to the directions given in the 18th chapter of St. Matthew, and other scriptures which respect discipline; and if she cannot be regained, shall be dropped from the union, and the association will not take cognizance of any case of the above kind unless tire above proceedings shall have been had thereon.”
Section 5 provides for a moderator and clerk, to be chosen by the members, to continue in office until the letters of the next association are read and the names of their messengers enrolled, and in case of a failure of the moderator, the clerk shall nominate one to act; and in case of the, failure of the clerk, the moderator shall nominate one to act. Section 6 provides that the moderator shall keep order, state all questions fairly, collect the suffrages of the churches, etc., and vote only in case of a tie. Section 7 provides for the keeping of a record by the clerk of the proceedings.
“8. It shall be the duty of any church wishing to
“9. Any association wishing to correspond with this association must express her faith in her letter, and if not objected to, shall be received, and when received, her messengers shall be entitled to a seat in council.
“10. All queries laid before the association shall be first debated in the church where it originated, and if they cannot decide on it, they shall insert it in their letter. * * * *
“12. The association shall give advice to the churches in matters of difficulty.” * * * * Section 17 provides that by a two-thirds vote this plan of government may be amended.
The evidence shows that twenty-two churches compose the Danville Association, and did so at the time the division took place in Mount Tabor Church, and are still members of that association. The council is a body of messengers or representatives of a number of sister churches, generally belonging to the same association, that may be called by a church wherein internal difficulty has arisen in such church where such church is unable to settle the difficulty herself.
The difficulty which resulted in the unfortunate division of Mount Tabor Church, arose out of a difference of opinion and belief as to a certain doctrinal point •which sprang up between the members shortly previous to the division. That difference related to the “means” by which sinners are to be made Christians. The majority, represented by appellees, believe in the use of “means” for that purpose, while the minority, represented by the appellants, do not believe in the use of means for that purpose. And thus they became
Elder E. E>. Thomas, on behalf of appellants, testified as to the difference as follows, to-wit: “When .simmered down to its finest point, one party believes that the Holy Spirit acts independently, directly, and through no communication whatever except the immediate contact with the life-giving spirit given to the sinner’s heart. The other party believes that God does sometimes1 communicate the same life-giving power in some other way than directly and abstractly.
There is no conflict in the evidence that the foregoing statements truly represent the substantial and real difference in doctrine between the majority and minority divisions of Mount' Tabor Church. It is true, there was some evidence tending to show that the doctrine of the means party leads to the fostering of Sunday schools and missions by the majority, but there was some conflict on those points, and we cannot weigh the testimony so as to disturb the finding of the court on any point where there is a conflict of evidence. There is no dispute between the parties that the foregoing difference of opinion existed in the church, and led to, and was the cause of the division; it is also conceded that the evidence shows that this difference in belief arose a short time before the division; and appellees’ counsel contend that the above defined belief of the majority was the original belief and faith of the church on that point, and that the above defined belief of the minority was new, an innovation, and a, departure from the original faith of the church. But all the evidence tends to prove, without a conflict, directly to the reverse of this contention. The articles of faith, which the evidence shows, are subscribed or agreed ta by each member in the church, would amply warrant us, were it a secular document,in holding that
While the courts of this State have no ecclesiastical jurisdiction whatever, yet they are charged with the duty and clothed with the jurisdiction of protecting property-rights of religious societies, corporations and churches, as well as that of individuals, and thereby, of necessity, they may be compelled to decide a question of ecclesiastical law when that law becomes a fact upon which property-rights depend. They ought not, however, to be inclined to “Rush in where angels fear to tread,” and where necessity does not compel them.
In Roshi’s Appeal, 69 Pa. St. 462, it was said: “That it is the duty of the court to decide in favor of those, whether a minority or majority of the congregation, who are adhering to the doctrine professed by the congregation, and the form of worship in practice, as also' in favor of the government of the church in operation, with which it was connected at the time the trust was declared.” * * *
“The title to the church property of a divided congregation is in that part of it which is acting in harmony with its own law, and the ecclesiastical laws, usages, customs and principles which were accepted among them before the' dispute began, are the standard for determining which party is right.” These quotations from the case named are but quotations from previous cases, a long line of which, both English and American, are cited in that case. That case has been so frequently quoted with approval by American courts of last resort on questions of this kind, that the principles announced therein may be regarded as settled law in
The controversy in Roshi’s Appeal, supra, as here, was between two factions of a divided congregation over the title to the house of worship and the ground upon which it was situated; and there, as here, the church was organized in 1835. The lot was after-wards conveyed by the owner to three named “trustees of the German Reformed Church, in trust for the use of the said German Reformed Church.” The house was erected afterwards. The lot here in question was conveyed by the owner on the 12th day of October, 1857, to three named “trustees of the Mount Tabor Regular Baptist Church of Jesus Christ, in Boone county, for the use of said church, for the sum of $75.00.” The houpe was afterwards built on it by the church. The court, in the case quoted from, further said, in relation to the title deed in that case, equally pertinent to this, that “a religious society, incorporated or unincorporated, is but the trustee of a charity, and it has always been peculiarly within the province and duty of a court of equity to prevent the diversion of property, held in trust for such purposes, from the object and design of the original endowment. * * * Whenever a church or religious society has been originally endowed in connection with, or subordination to, some ecclesiastical organization and form of church government, it can no more unite with some other organization, or become independent, than it can renounce its faith or doctrine and adopt others. * * * It was ultra vires. They might, indeed, as individuals, have formed any kind of church they pleased, independent or connected with any other
But counsel for appellees, as before observed, have mainly relied on the rules of decorum to justify the action of the majority. The 9th section thereof, as we have before seen, provides that “all questions coming before the church in order shall be taken up and determined by a majority, except the reception of members in the church and appointing officers, which shall be by unanimity, except that there be but two objectors. In that case, the objectors will let their objection be known, and. then, if the1 church thinks them to be trifling and unfounded, they may act as if there were no objections.” This rule cannot be held to authorize a change of faith and practice by a vote of the majority, as contended. The evidence shows that all members, according to the usages and practice of the Regular Baptist Churches, are expected to either subscribe or assent to the articles of faith, or be in harmony therewith, in faith and belief. Hence, the propriety of the exception to the right of the majority to rule, in case of receiving members into the church. If the candidate does not give satisfactory evidence that he is in harmony with the articles of faith, the
But if we had any doubt as to the correctness of our construction of the fundamental law of this church, contained in the articles of faith and rules of decorum, that doubt would be entirely cleared away by the action of the Danville Association, to which this church belonged, and the action of two councils, to each of which these very troubles were submitted.
In 1889 both factions claiming to be the church, sent a letter and messengers to the association. These letters were both returned to the senders, requesting and advising them to become reconciled; the minority then, in accordance with Baptist practice; usages and custom, requested the majority to join them in calling a council from sister churches, which the majority declined to do. The minority called a council, consisting of messengers, or representatives, from seven sister churches; that council met, the minority appeared before them and requested the majority to do the same, but they declined. The council heard the evidence in support of the charge that the majority had departed from the faith, and other matters, and found the charge true, which was reported back to the churches sending the members of the council.
Both parties again sent letters and messengers to the next meeting of the Danville Association in 1890, the majority and the minority, each claiming to be the only true Mount Tabor Church, and each inserting in its letter, its respective version of the controversy. The association unanimously received the letter from the minority, and admitted her messengers to seats in the association, as the representatives of the only true Mount Tabor Church, and recommended that sister churches of their faith and order should recognize the minority as the true Mount Tabor Church. And the association refused to receive the letter of the majority, though it was read and discussed, and refused to admit the messengers of the majority to seats in the association. This action was on the ground that the majority was guilty of a departure from the faith expressed in the articles of faith.
In White Lick Quar. Meet. of Friends v. Same, supra, this court said: “The civil courts act upon the theory that the ecclesiastical courts are the best judges of merely ecclesiastical questions, and of all matters
But it is contended that the decisions of these ecclesiastical courts, the councils and the association, is not binding on anybody, much less that they are binding on the civil courts. This extraordinary position is earnestly and, we may say, even ably contended for, on the ground that the Eegular Baptist Church government, being congregational, and therefore independent of any higher judicatory than the local church itself, and the powers of the council and the association; if the particular church concerned, or majority thereof, sees fit not to take the advice of the association, that such majority may go on as they please. It must be conceded that the evidence shows that the power of the association is only advisory, and the same is true of the council; the association, however, as shown by the evidence, has plenary power where two sets of messengers, with separate letters from each of two factions into which a church is divided, and each claiming to represent the true church, to authoritatively declare which is the true church, by the reception of one of these letters and by the admission of the messengers of that one to seats in the association. But it is earnestly contended that by the church polity and government of the Regular Baptist denomination, as shown by the evidence, a church may withdraw from an association and still continue to be a Eegular Baptist church, with all powers it had before
Appellants7 contention amounts to this: that the majority may rule over the minority with a high hand in violation of the laws, rules, usages, faith and practice upon which the church is founded, and on appeal by both parties to,the association for its approval, advice and recognition, the majority receiving therefrom an unfavorable decision, may turn around, deny the power of the association to deal with the matter, go back home and oppress the minority by going through the form of excluding them from the church, withdraw from the association, organize a new one and join it; and thereupon claim the right to be heard to say in the civil courts that because the Danville As
• But suppose we treat the action of the association as purely advisory and not judicatory, still its action must have a controlling influence on the civil courts. The Supreme Court of the United States, in a case, in some of its aspects much like the present, said: “They claimed to be the Third Colored Baptist Church, and as such they were recognized by councils of Baptist churches, duly called, and by the Philadelphia Baptist Association, an ecclesiastical body with which the church was associated. That body, it is true, was not a judicatory. Its action was not conclusive of any lights. But the fact that the complainants, and those acting with them applied for recognition as the Third Colored Baptist Church, and that the associa
The undisputed evidence shows that the form of church government in the different denominations of Baptists in the United States is substantially the same.
On the question of the weight to be given to the decision of the Danville Association, we find a very pertinent case, decided by the Supreme Court of Ohio. Harrison v. Hoyle, 24 O. St. 254. That court said: “According to the rules of the society, we think the question of succession in the Ohio Yearly Meeting was a proper subject for the consideration and judgment of other yearly meetings. And it is quite certain that both parties so understood the polity of the society at the time of the separation, as each submitted to the several other yearly meetings its claim for recognition as the only true and legitimate Ohio Yearly Meeting. The several meetings then in existence (save only Philadelphia, in which there was a divided sentiment) decided in favor of Binns and his associates, upon full consideration of all the facts involved in the controversy. Are these decisions entitled to consideration and weight in this case? * * The civil courts, in determining the question of legitimate succession, in cases where a separation has taken place in a voluntary religious society, will adopt its rules, and will enforce its polity in the spirit and to the effect for which it was designed. * * * * Applying these principles to the facts' of the' case before us, we are of opinion that the decisions of the several yearly meetings of the society, in relation to the succession in the Ohio Yearly Meeting, are proper and legitimate evidence in the case, and are entitled to great weight as intelligent opinions and judgments
We therefore conclude that even though the Dan-ville Association had nothing but advisory power in the matter, yet, as both parties submitted their claims to it, on their own statement and version of the controversy, seeking its recognition, the decision of the association is entitled to very. great weight as to which faction is the real and true Mount Tabor Church, and while not conclusive upon the courts, its decision, composed as it was of delegates, called messengers, from the whole twenty-two churches composing the association, a majority of whom, in council, had decided the same way, would be a safer guide for the civil courts on questions of religious doctrine, discipline, faith, and practice, than any judgment we might form contrary thereto.
In a recent case, the Supreme Court of Iowa has decided almost every single point here involved, where the minority of a divided Baptist Church was held to be the true church. Mount Zion Baptist Church, et al. v. Whitmore, et al., 83 Ia. 138. The point there involved,, and the contentions were so similar to those in this case, that we are induced to quote from the very able opinion in that case. That court said: “The petition recited the substance of the foregoing [which was a
“The Mt. Zion Baptist Church came into possession and ownership of the property it now holds under a profession of faith and practice limited by the ‘articles of faith and church covenants published in the minutes of the Des Moines Baptist Association, in the year 1848,’which we understand to accord with the teachings of the Baptist denomination. These articles of faith and church covenants, and the teachings with which they accord, are a limitation on the trust or use to which the property may be applied. * * * * The council selected by the parties declared, in effect, the doctrines taught by the Smith brothers to be a deadly error, and destructive of the peace of the church. Treating this finding for the present as legitimate and true for the purpose of the case, and the situation is that property given and devoted to the promotion of the Baptist church is being used for its destruction. The appellees’ contention because of their claims for the distinctive or independent character of the Baptist church, by which a majority may, without limitation, govern, would permit this result. * * * * p]le error of appellees in their claim for the ‘independency’ of the majority in a Baptist church lies in a mistaken conception of what should be understood by ‘government.’ The power of the majority to govern is derivative, and the source of deriva
This case is so nearly the exact case now in hearing, and the points in controversy so nearly the same in both, that it decides every material point contended for by appellees against them, and if it correctly declares the law, as we think it does, it is decisive of this case against appellees. It is true, it differs with this case in that the ecclesiastical decision there was by
The evidence shows that appellants and the majority were at one time since the division, in possession of the church building, claiming to be the true church, and that appellees, and the majority represented by them, afterward broke open the house by the use of a fence rail, and ever since have had exclusive possession. And ever since that, appellants, and the minority they represent, have kept up a, separate organization and church services, claiming to be the true church, and have been ever since so treated and recognized by the Danville Association, while the .majority have been disowned by that association. That their action did not take the minority out of Mount Tabor Church, and the action of the majority in excluding them did not have that effect, see West Koshkonong Congregation v. Ottesen, 80 Wis. 62, 49 N. W. Rep. 24.
We, therefore, conclude that the finding of the circuit court was contrary to law, for which error the motion for a new trial ought to have been sustained.
Rehearing
Opinion on Petition for Rehearing.
— Appellees have presented what they call a petition for a rehearing. It is, however, not a petition, measured by the rule of this court, No. 37. It is but an elaborate printed brief or argument, of sixty-two closely printed pages. The rule requires a petition “setting forth the cause for which the judgment is supposed to be erroneous.” The same rule also requires a brief in support of the petition.- We would be justified in disregarding the so-called petition, but the importance of the questions involved induces us to carefully reconsider the questions discussed in such brief.
The entire argument therein is confined to- four propositions: 1. That the opinion is based on an incorrect statement of the facts established by the evidence, to the effect that the appellees, and those represented by them, had departed from the original faith upon which the church was founded; 2, that it was wholly immaterial if they had so departed, so long as they constituted a majority -of the membership of the church; 3, that appellants, could not recover because all their interest in the church property and the interest of those they represent had ceased by reason of their expulsion from the church before the suit was brought, and 4, that they could not recover even if all other questions of law and fact were decided in their favor, for the reason that appellants were not legally elected trustees, there being no vacancy in the office of trustees of said church, and those electing them not being members of the church
The leading case cited in support of the proposition, that the majority of a church divided into two conflicting bodies may hold the church property, though such majority have abandoned the religious faith on which it was founded, is Watson v. Jones, 13 Wall. (U. S.) 679. That was a case where the Third Walnut-street Presbyterian Church of Louisville, Kentucky, became divided into two conflicting bodies, each claiming to be the church, and each claiming the right to the control and possession of the chnrch edifice and property. The case has no application here, because the division there did not arise ont of any difference in religious faith or belief, nor was there any claim that either side had changed their religions belief from that on which the church was founded. But the division was solely on account of differences in political belief. One side adhered to the cause of the Union during the war of the rebellion, and the other side adhered to the cause of the rebellion.
Appellee’s counsel quote most of the following passage in the opinion in that case in support of their contention: “The second class of cases which we kaAre described has ref erence to the case of a church of a strictly congregational or independent organization, governed solely within itself, either by a majority of its members or by such local organization as it may have instituted for the purpose of ecclesiastical government; and to property held by such a church, either by way of purchase or donation, with no other specific trust attached to it in the hands of the church than it is for the use of that congregation as a religious society.
“In such a case where there is a schism which leads to a separation into distinct and conflicting bodies,
There was not only no case before the court of a church divided into two factions on account of one of them having abandoned the original faith on which it was founded, but the court was not speaking of such a case, nor a violation of a trust arising out of such a case, by the use of the house of Avorship by the departing majority. The existing religious opinions, the right of inquiry into which is denied in the opinion, has no reference to the original faith on which the
There are many minor differences of opinion as to religious duty and practice among the members of the same denomination, and even of the same church upon which the confession or articles of faith are silent. For instance, the propriety of attending balls or dances, playing cards, washing each other’s feet, maintaining musical instruments in public worship, and the like, which differences ordinarily furnish no ground for a charge of a desertion of faith. It was such differences that led to the separation of the Third or Walnut-street Church in Louisville, and it was that class of differences the court had in mind in the use of the language above quoted. That it Avas not intended to apply the language to all cases, is rendered clear by another passage in the opinion, Avhich counsel do not quote and make no mention of. It reads thus: “In such case, if the trust is confided to a religious congregation of the independent or congregational form of church government, it is not in the power of the majority of that congregation, however preponderant, by reason of a change of views on religious subjects, to carry the property so confided to them to the support of new and conflicting doctrine. A pious man, building and dedicating a house of worship to the sole and exclusive use of those who believe in the doctrine of the Holy Trinity, and placing it under the control of a congregation which a.t the time holds the same belief, has a right to expect that the law will prevent that, property from being
The next case cited by appellees’ counsel in support of the proposition in question, is Keyser v. Stansifer, 6 Ohio 363. That also was a suit for possession of a church-house property by Keyser and others, a small faction of a Baptist church, who had separated themselves from the church about a matter that had nothing whatever to do with the original faith upon which the church was founded. And it was held, in accordance with the rule laid down in the last-mentioned case, that in such a division of a church the property, as in ordinary voluntary associations, is held at the will of the majority. The division, in the' Ohio case, was caused by the church excluding Keyser on charges preferred against him in'the course of discipline for misconduct. I-Ie afterwards got another member named Cox and some married women to join him to sue for the church edifice. The ground on which he and his associates claimed that they were the real church, was that sometime after Keyser had been excluded the church adopted new articles of
The next case cited in support of the right of the majority to rule in matters of this kind, is Shannon v. Frost, 3 B. Mon. (Ky.) 253. Counsel complainingly remark that “this case was cited by appellees in their original brief. * * But no mention is made of it in the opinion rendered herein. It did not receive the cold respect of a passing glance.” Counsel must speak from actual knowledge in making this charge. One of them happens to know that all his statements are true except that that case was in the original brief. Because he knows that that case was not cited in the original brief, but was cited on a separate piece of paper filed nearly a month after the original brief was filed. That paper contained nothing else but a citation of that case, and was filed on the same day the opinion was handed down, and after the case had been decided. Then the writer of the opinion pasted that paper fast to appellees’ original brief. He knows it was too late then to give the case even the cold respect of a passing glance, after the cause in which it was cited had been decided. However, this court is not bound to cite and comment on all cases cited by counsel. Such citations may not be worthy of such notice.
But the case has not the slightest bearing on the question of the rights of the majority faction of a divided church, who have departed from the original faith on which the church was founded, as against
In that case, seven members of a Baptist, church in Frankfort, Kentucky, were regularly excommunicated from the church, presumably for immoral conduct. The expelled members, associating themselves with some other persons professing the same religion, organized themselves into a separate1 community of professed Christians, elected trustees, which election was ratified by the county court of Franklin county.
Afterwards insisting on their right to enjoy to some extent the house of worship built for and still occupied by the original church, they took possession and made periodical use of it, without the consent and in defiance of the prohibition of the church.
To settle the controversy, the members of the original church sued to enjoin them. The defendants did not claim to own the church edifice, but claimed the right to use it a part of the time, under a statute of Kentucky. That statute provides for the election of trustees by religious societies, and among other things regulates the power and control by such trustees of the house of worship belonging to such church or society. It is also provided therein that in case of a division in any congregation or church from any other cause than immorality of its members, the trustees are not to prevent either of the parties so divided from using the house or houses of worship for the purposes of devotion a part of the time, proportioned to the number of each party.
It was under this provision that the defendants justified their attempted use of the house. There was-no question of a difference of religious belief involved in the case between the two parties.
Yet, at the same time, in cases of divided churches, incorporated under previous statutes of that state, it was held uniformly by its courts, in harmony with all authority elsewhere, that a majority could not carry or divert the church property to a contrary doctrine and faith against the objection of a minority of the membership of the church adhering to' the original faith on which the church was founded. Miller v. Cable, 2 Den. (N. Y.) 492; Kniskern v. The Lutheran Churches, 1 Sanf. Chancery (N. Y.) 439.
But that statute has been since modified in a subsequent act of the legislature of that State. In Isham v. Trustees, etc., 63 How. Pr. 465, it was said: “As the act of 1813 has been construed, the members of a religious corporation were under its provisions left at liberty to divert the church property from the dissemination of the views of the persons acquiring it to that of any other view, whether religious or secular, which might, be sanctioned and adopted by a voting majority of the congregation. (Robertson v. Bullions, 1 Kernan,
“This was an extreme construction of the terms in which the carefully guarded act of 1813 was enacted, and by chapter 79 of the Laws of 1875 the legislature undertook its correction, and for that purpose provided and declared that the trustees of a religious society, incorporated under the act of 1813, should administer its temporalities and hold its property and revenues for the benefit of the corporation, according to the discipline, rules, and usages of the denomination to which the corporation belongs. (Laws 1875, p. 79, section 4.)
“This enactment was preserved and in terms extended by chapter 176 of the laws of 1876. The plain purpose of these acts was to abrogate the rule which had grown out of the preceding construction given to the act of 1813, and to deprive the congregation, as well as the trustees of the society of the power after-wards to divert the church property from the promotion and dissemination of the. religious views of the persons obtaining and acquiring it to the promulgation and maintenance of any different systems of religious belief. Instead of holding the property subject, simply, to the disposition of the voting majority of the congregation, the trustees were henceforward to hold and devote it to the uses and purposes of the denomination of Christians in which the society should be included that obtained and acquired it. * * * *
“It was manifestly unjust to allow persons becoming members of a religious society, formed for the purpose of inculcating particular views, by their subsequent votes, to appropriate the property they might have done nothing to acquire to the promotion of views of an entirely different character from those entertained by the persons through whose contributions the prop
It thus appears that Petty v. Tooker, supra, so confidently relied on for a rehearing, is no longer the law or authority either in or out of the state of New York.
Counsel for appellees cite and quote from Baptist Church v. Witherell, 3 Paige (N. Y.) 296, without definitely stating what point it is designed by it to support, the following passage: “All questions relating to the faith and practice of the church and its members, belong to the church judicatories to which they have voluntarily subjected themselves.” If it is meant by this to support the proposition that the majority departing from the faith can hold the property against the minority adhering thereto in a case of division, the answer is that that case was one where the church was incorporated under the act of 1813,. and, like Petty v. Tooker, supra, was governed and controlled by that statute, and hence is no longer authority in the state of New York or elsewhere.
But, if it was intended to support the proposition that the action of the judicatories of the Regular Baptist Church are absolutely binding upon • the courts, then it is against the appellees, because the undisputed evidence shows that three several judicatories of that denomination had decided that appellees had departed from the faith as expressed in the articles of faith adopted at the foundation of the church, though such decisions were only advisory.
The contention amounts to this: the church, becoming divided into two factions on account of a difference in religious belief and faith, the majority being accused by a minority of departing from the original faith, they sit in judgment in their own case, pass solemn judgment in their favor that they, being a majority, and hence the church, had' a right to change the faith, and hence are not guilty of the charge.
Appellees assume the position that the majority had the right to act as the 'judicatory for themselves, and pass solemn judgment upon their own acts and adjudge that they are not guilty of a departure from the faith. And they condemn and exclude the minority from the church, and thus seek to preclude the civil courts from inquiring into the charge against them. And now they coolly ask this court to adjudge that their action, while acting as judges in their own case, shall be conclusive, not only on the opposite party, but conclusive on the courts as well, that the majority had not departed from the faith, and that the minor
This position of appellees at once assumes the truth of the very proposition that is in dispute, namely, the claim that the majority faction is the real and true Mount Tabor Eegular Baptist Church. Having assumed that as a fact, they seek to prove it by showing
The only thing that can rescue this claim from the charge of unmitigated assumption pure and simple, is the contention that a majority faction of a church divided into two conflicting bodies on account of differences as to the standard of faith is the real and true, church. That contention, we have seen, has no foundation in law or authority. To permit such majority, under such groundless assumption, to exclude or excommunicate the minority, who still adhere to the original faith, and claim to be the church so as to affect property rights, would be a. reproach to the law. It would be the law making the title to the property turn upon a mere trick. Such action is vastly different from the action of the church in excommunicating members before it had become divided into two conflicting bodies on account of such differences in religious belief. The minority that succeeded in the Iowa case, referred to above, had been excluded from the church by the majority because of their difference in religious belief from the majority, and yet, the claim of the minority that it constituted the real Mt. Zion Baptist Church was sustained by the Supreme Court of Iowa.
There were three churches in Wisconsin, the denominational name by which they were known was Koshkonong’s Lutheran Congregations, in Dane and Jefferson counties. The three churches were served
“We cannot entertain for a moment the idea that the action of the Missourian faction in the Eastern Church, in March, 1887, by which they attempted to declare the anti-Missourians as withdrawn or suspended from the church, has in fact affected the rights of the anti-Missourians in the least.” The same legal principle, under like circumstances, is distinctly recognized in Nance v. Buby, 91 Tenn., at page 303, 15 L. R. A. 801.
This is sufficient to dispose of all the cases counsel cite in support of the proposition, that civil courts are not authorized to determine- whether the church judicatories decided right or wrong, and hence cannot, in this case, determine whether the minority was wrongfully or rightfully expelled from the church. They quote from Shannon v. Frost, supra, among others the following passage: “We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this Court. For every judicial purpose in this case, therefore, we must consider the persons who were expelled by a vote of the Church, as no longer members of that Church, or entitled to. any rights or privileges incidental to or resulting from membership therein.” They cite as sustaining this proposition Chase v. Cheney, 58 Ill. 509; The White Lick Quar.Meet. of Friends v. Same, 89 Ind. 136; Lamb v. Cain, 129 Ind. 486, 14 L. R. A. 518, and Bouldin v. Alexander, 15 Wall. (U. S.) 131.
There is no question but that the proposition stated is thoroughly settled law. But it is equally true that
But it must be the act of the church, and not the act of persons who are not the church. In this case it was not denied that the church had become divided into two conflicting bodies, the minority charging that the majority had departed from the standard of faith set up at the foundation of the church, and that both factions were claiming to be the church, and both acting accordingly when the expulsion took place.
How absurd it is, then, to say, as counsel do in this case, that there can be no inquiry beyond the fact of expulsion, to determine whether appellants are still members of the church.
Appellees’ proposition is that appellants are not members because they have been expelled by the church. It is not sufficient to make good this claim to prove the mere act of expulsion, because that only proves one part of the claim. The other part is that the act of expulsion was1 done by the church, not merely by persons claiming to be the church, but by those who were really and truly the church. If the •evidence falls short of proving both parts of the claim, then the evidence does not prove the claim that appellants are not members of the church. It is conceded that they were members unless the church has expelled them. The evidence showing that there were two conflicting bodies, each made up of members of this church, and each claiming to be the only real and true Mount Tabor Regular Baptist Church, and each of such bodies having expelled all the members of the other from that church, as shown by the evidence, it inevitably follows that the court must judicially investigate the question which of the two conflicting bodies is the real and true church, before it can determine that anybody has been expelled therefrom and ceased to be a member or members thereof. When such investigation results in establishing that one of these bodies is the real church, that ends the whole controversy in this case, without any inquiry about expulsions; that is so because the expulsions occurred after the division. Appellants’ counsel, with tireless ingenuity, put the cart before the horse by first attempting to show that appellants • were expelled in
It was quite unnecessary for appellees’ counsel to resort to or rely on the act of expulsion, if their other oft-repeated claim was well founded, namely, that the majority of a church, divided on account of religious differences, is the church. It is conceded that the church was so divided, each of the two bodies claiming to be the only true and real Mount Tabor Regular Baptist Church. Both claims cannot be admitted, hence judicial investigation must inevitably be resorted to, to ascertain which is the true church, and expulsions, since the separation by either side, can throw no light upon that investigation. What is the touchstone that tests which of the conflicting cláimants is the true Mount Tabor Regular Baptist Church? This court in White Lick Quar. Meet.,etc., v. Same, 89 Ind. 136, supra, furnished an answer. It is there said: “The title to the property of a divided church is in that part of the organization which is acting in harmony with its own law; and the ecclesiastical laws, usages, customs, principles, and practices which were accepted and adopted by the church before the division toot place, constitute the standard for determining which of the contesting parties is in the right. Watson v. Jones, supra; McGinnis v. Watson, 41 Pa. St. 9; Winebrenner v. Colder, 43 Pa. St. 244; Schnorr’s Appeal, 67 Pa. St. 138, 5 Am. R. 415; Roshi’s Appeal, 69 Pa. St. 462, 8 Am. R. 275.”
And again, in Lamb v. Cain, 129 Ind. 510, this court further answered the question thus: “Where it is alleged, in a cause properly pending, that property
The rule, as stated by the Supreme Court of Illinois in Ferraria v. Vasconcellos, 31 Ill. 54, 55, and recognized by a great many decisions in courts of last resort in other states, is as follows: “As a matter of law, as I understand the decisions, the rule is that where a church is erected for the use of a particular denomination, or religious persuasion, a majority of the members of the church cannot abandon the tenets and doctrines of the denomination, and retain the right to the use of the property; but such secessionists forfeit all right to the property, even if but a single member adheres to the original faith of the church. This rule is founded in reason and justice, and is not departed from in this case. Church property is rarely paid for by those alone who there worship, and those who contribute to its purchase or erection are presumed to- do so with reference to a particular form of worship or to- promote the promulgation or teachings of particular doctrines or tenets of religion, which,-in their estimation, tend most to the salvation of souls; and to pervert the
The same rule was stated by the Supreme Court of Iowa, in Mt. Zion Baptist Church, v. Whitmore, supra, as follows: “Upon authority so general as to be beyond question it is held, that property given or set apart to a church or religious association, for its use in the enjoyment and promulgation of its adopted faith and teachings, is by said church or association held in trust for that purpose, and any member of the church or association less than the whole, may not divert it therefrom.” Accordingly, it is said by Sharswood, J., speaking for the Supreme Court of Pennsylvania, in Schnorr’s Appeal, 67 Pa. St., cited in the original opinion, that: “In church organizations, those- who adhere and submit to the regular order of the church “ * though a minority are the true congregation and corporation, if incorporated.” Chief Justice Shaw, speaking for the Supreme Court of Massachusetts in a. similar case, Stebbins v. Jennings, 27 Mass., at page 181, said: “That an adhering minority of a local or territorial parish, and not a seceding majority, constitutes the church of such parish to all civil purposes, was
One of the very cases relied upon by appellants’ counsel, Bouldin v. Alexander, 15 Wall, 139, 140, the Supreme Court of the United States said: “It may be conceded, that we have no power to revise or question ordinary acts of church discipline, or excision from membership. We have only to do with the rights of property. As was said in Shannon v. Frost, we cannot decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off. We must take the fact of excommunication as conclusive proof that the persons exscinded are not members. But we may inquire whether the resolution of expulsion was the act of the church, or of persons who were not the church and who consequently had no right to excommunicate others.”
It follows, as conclusively as that two and two make four, that appellants, anid those acting with them, did not cease to be members of the church by the act of the majority in expelling them, if we were right in the original opinion in holding that such majority had departed from the chosen faith, declared in the articles of faith adopted at the foundation of the church, and were teaching doctrines contrary thereto, because the unbroken line of judicial authority everywhere, as we have seen, declares the law to be, in such case, that such majority was not the real and true
This brings us in the natural order to the first proposition on which a rehearing is asked, namely, that our former conclusion that the evidence showed such departure from the faith by the appellees, and those represented by them, the majority, is based on an incorrect statement of the facts established by the evidence.
The conflicting doctrines held by the two bodies are known as the “means doctrine,” held to by the majority, -and the “anti-means doctrine,” held to by the minority. The epitome of the two doctrines may be stated thus: The “anti-means doctrine” is a belief and faith that conversions of sinners to Christianity and the salvation of human souls is not and cannot be brought about or aided by any human means or effort whatever, but that the same must be and is wholly and entirely the work of the Lord. The “means doctrine” is a belief and faith in the exact opposite, that such conversions and salvation may be aided by the use of human means.
There is no controversy about the meaning of the two terms “means” and “anti-means,” nor as to the conflicting beliefs as above expressed, but the strange charge is now made that the “anti-means” party are the ones that have departed from the faith, and that the “means doctrine” was the original doctrine of the church. And out of the vast volume of about 600 pages of evidence appellees’ learned counsel are only
Counsel say of this evidence, that: “On the other hand, the appellants did not introduce a single witness to contradict the testimony of Elder Shirley on that proposition, or prove that Mount Tabor Church was or ever had been anti-means in its doctrines or teachings, and not a single witness so testified. In the evidence of all the witnesses examined during the protracted trial of this case, there was not a word from any one of them to sustain the assumption on which this opinion is predicated, that thehneans’ party had departed from the faith on which Mount Tabor Church was constituted.” This sweeping and startling declaration is made in defiance of,and by ignoring the conclusive documentary and other evidence adduced. It treats the articles of faith put in evidence, as having no force, and it ignores the evidence of the solemn decisions of two councils of the churches, and the decision of the Danville Association, that the majority, or “means” party, had departed from the faith as expressed in the articles of faith, and that the “anti-means” party, the minority, were still adhering to that faith, and were the real and true and only Mount Tabor Regular Baptist Church. It is true, the' decisions of these three ecclesiastical tribunals recognized judicatories of that church, were not conclusive on the parties according to the governmental polity of the church, but advisory only; but nevertheless, as was said by the Supreme Court of the United States in Bouldin v. Alexander, supra, such decisions “are persuasive evidence” of the facts thus decided.
Two of the articles of faith read thus: “Fourth— We believe in the election- by grace, according as He has chosen us in Him before the foundation of the world, that we should be holy and without blame before Him, in love, having predestinated us to the adoption of children by Jesus Christ, to crown us according to the good pleasure of His will. Fifth — We believe that sinners are justified by the righteousness of God, which is in Christ Jesus imputed to them by Divine and supernatural operation of the spirit of God, and that they are kept by the power of God through unto salvation.” In all this long controversy it has never been hinted by a single witness that this declaration of faith was consistent with the means doctrine, nor have counsel for appellees, in all their long and earnest argument, either on the original hearing or on this petition for rehearing, claimed that
Nor is there a scintilla of evidence that there was ever but the one construction put upon this declaration of faith. What, then, was this long protracted hearing of evidence about, occupying about ten days, if the item of evidence we have quoted was uncontradicted? Why it was all, except that item, devoted to an effort on the part of appellees to prove that the majority in a church with a congregational form of government, as here, could change at pleasure their standard of faith. Hence it was that the discussion of the item of evidence in question in appellees7 original brief occupied only two lines, and in the present brief of over sixty pages, only a little over a page is devoted to this item of evidence. The whole evidence proceeded on the theory of a conceded departure in faith by the majority and an attempted justification thereof on the ground that the majority had the right to change or alter the faith and doctrine of the church, unless the item of evidence in question can be construed as a denial of such departure by the majority. That theory still occupies all of appellees7 elaborate brief except a page or two. But there is still another item of evidence of a very vital and controlling character that counsel ignore. And that is, that the church record, put in evidence, shows that, when the church was organized it was named a “Regular Baptist Church,77 and its denominational name has never been changed.
No principle is better settled than that property conveyed to trustees for the use of a church by its denominational name, as was the case here, creates a trust, for the promulgation of the tenets and doctrines of that denomination. Hale v. Everett, 53 N. H. 9, s. c.
History records that one branch of the Baptist denomination is what is known as, and called Regular Baptists. History says that they are strongly Calvinistic in doctrine; American Church History, vol. 1, p. 19. A summary of their articles of faith, by the same history, is stated as follows: “Articles 1 and 2 state the doctrine of the Trinity, and accept the Scriptures of the Old and New Testament as the word of God and only ‘rule of faith and practice;7 Article 3 declares that ‘God chose his people in Christ Jesus before the foundation of the world7 and ‘predestinated them unto the adoption of children;7 Article 4, that man is a sinner and consequently in a lost condition; Article 5, that he has no power of his own free will and ability to recover himself from Ms fallen state; Article 6, that sinners are ‘justified in the- sight of God only by the righteousness of Jesus Christ;7 Article 7, that the elect are ‘called and regenerated by the Holy Spirit through the Gospel;7 Article 8, that nothing can separate true believers from the love of God, and that they shall be kept by the power of God through faith unto salvation.77 American Church History, Yol. 1, p. 21, 1893.
This is Calvinistic doctrine, and corresponds exactly to the doctrine designated in the evidence as “anti-means" doctrine. Tyler’s Ecclesiastical Law, sections 830, 831.
The doctrine designated in the evidence as the “means doctrine" corresponds exactly to what is known as Arminian doctrine. Tyler’s Ecclesiastical Law, sections 830, 831.
But there is another item of vital and controlling evidence which counsel ignore. It is evidence which shows that appellees, and the majority acting with, and represented by them, construed the articles of faith and the denominational tenets of the Eegular Baptist Church to be in conflict with the “means doctrine,” just as the two councils and the association had. After a two years’ struggle by the contending factions, seeking recognition and admission to the Danville Association, to which the church belonged, and each claiming that it was the only true Mount Tabor Eegular Baptist Church, the majority party was disowned and refused admittance because of such departure from the faith, and the minority party received and recognized as the church; the majority party went home and organized a new association, and after grave deliberation, they named it “The Mount Tabor Means Baptist Association.” Thus it will be seen that the denominational name of Eegular Baptist was changed by dropping out the word regular, which distinguishes that denomination of Baptists in the United States from twelve or thirteen other denominations of Baptists. And in the place of the word “Regular” they substituted the word “means.” American Church History, Vol. 1, p. 18. There is no such church known to' history as Means Baptists.
If the church was and always had been a “means” church, if the denominational faith and belief was in the means doctrine, then the denominational name of “Regular Baptist” carried that idea with it, and there was no cause for changing it. As was said in. Hale v. Everett, supra: “A society which should take for its name ‘The First Society of Roman Catholics in C,’ or
By dropping out the very word, and the only word, from the denominational name that distinguished the denomination from twelve or thirteen other sects of Baptists, and substituting in its place the word “means,” about which the whole trouble had arisen, is an act that as plainly construes the articles of faith and the tenets of the denomination to be in conflict with the means doctrine, as any act could be on the part of the majority. If the means doctrine was taught in the articles of faith, if it belonged to the tenets of the denomination, the majority would have refused to the last to change the name.
This change was a frank confession, on the part of the majority, at a time, perhaps, when the uppermost thought in their minds was to express their belief that the denominational name “Regular Baptist Church” did not carry with it a correct expression of their religious faith and belief, and that the articles of faith did not do so. And the act of the minority in adhering to the old name is equally significant. Thus it is that the majority, represented by the appellees, have, by a:n unequivocal act, placed the same construction upon the articles of faith and the tenets of the denomination that the minority, the two councils and the as
And the civil courts accept the construction placed upon the ecclesiastical laws of an ecclesiastical body by such body as binding on the civil courts. Lamb v. Cain, supra; White Lick, etc., v. White Lick, etc., supra; Mt. Zion Baptist Church v. Whitmore, supra.
Here, both the conflicting bodies, as well as the ecclesiastical courts of the denomination, have so construed the articles of faith and the denominational tenets as to hold, impliedly at least, that the means doctrine is a departure therefrom. That construction is binding on this court.
The articles of faith being a solemn written compact, are conclusive on the question of faith.
If the item of testimony, quoted from Elder Shirley, was in conflict with the articles of faith thus construed, his testimony being oral only, it cannot be considered in opposition to the written compact Robinson v. Snyder, 97 Ind. 56; Oiler v. Rodkey, 17 Ind. 600; Symmes v. Brown, 13 Ind. 318. But, aside from that, his testimony, when examined, may be harmonized with all the other evidence, which it is the duty of the court or jury to do, if that can be reasonably done.
He was speaking from his standpoint. He, and all the witnesses on that side; were testifying that the majority constituted the church. As the learned counsel have, in the brief on this petition, repeated nearly fifty times, that the majority is. the church and the church is the majority. He said: “So far as I know of its church history, it has been means since the beginning in its constitution,” that is, according to all the witnesses on that side, the majority is the church. Therefore, he means that the majority, so far
The fourth and last proposition made is; that appellants were not legally elected trustees by the minority, because there was no vacancy in such offices, and that a minority could not elect, and hence appellants could not maintain this suit. In Schnorr’s Appeal, supra, Sharswood, J., speaking for the court, said: “The corporation or society are trustees, and can no more divert the property from the use to which it was originally dedicated, than any other trustee can. If they should undertake to divert the funds, equity will raise some other trustee to administer them and apply them according to the intention of the original donors or subscribers.” That was a case where both factions, as here, had elected trustees. To the same effect are several of the cases cited in this and .the original opinion.
But there is another, and perhaps, a more conclusive
The complaint shows on its face that appellants sued in their capacity as trustees of Mount Tabor Regular Baptist Church.
The only answer to the complaint reads thus: “The defendants in the above case for answer say, that the said Albert Smith, Samuel Schenck and Thomas Shepherd are not the trustees of the Mount Tabor Regular Baptist Church, and were not at the time of the commencement of this action; that the defendants, Robert G-. Pedigo, Preston Smith and Levi Shirley, are the trustees of said church and corporation, and were so at the time of the commencement of this suit, and the said defendants deny each and every allegation in said complaint contained. Wherefore they demand judgment for costs and all proper relief.” This answer was verified. But it was a palpable attempt to defeat the merits by dilatory matter in abatement, that has nothing to do with the merits by commingling them together. They sought to try the merits1 under cover of matter in abatement; and failing in their defense on the merits, fall back on the matter in abatement, and insist, not on abating the suit, but on a finding and judgment in their favor on the merits. The common law would not permit this to be done, and for a long time our code was construed not to have changed the common law in this respect, but it was afterwards construed to have modified the common law so- as to allow matter in abatement and in bar to be pleaded together in the same answer. But immediately thereafter the legislature enacted the following: “Pleadings denying the jurisdiction of the court, or in abatement of the action, and all dilatory pleadings, must
It was held, before the enactment of this* statute, that the authority of a party to sue could only be put in issue by a plea in abatement verified. Nolte v. Libbert, Admr., 34 Ind. 163. It has also been held by this court that at common law, as well as under this provision of the code, that matter in abatement must precede. and cannot be pleaded with matter in bar. Field v. Malone, 102 Ind. 251; Dwiggins v. Clark, 94 Ind. 49; Moore v. Harmon, 142 Ind. 555.
It was frequently held, prior to the enactment of the revision of the code above quoted, that a plea in abatement, aiong with one in bar, is a waiver of the matter in abatement, and that such matter in abatement cannot be considered by the court. Kenyon v. Williams, 19 Ind. 44; Jones v. Cincinnati, etc., Co., 14 Ind. 89; Keller v. Miller, 17 Ind. 206. And since that enactment the same rulewas applied in Field v. Malone, supra, at pages 256-7, where this court said: “The appellee insists that the plea in abatement, having been filed with the general denial, and forming the second paragraph of the same answer, cannot be considered. * * * And this unquestionably was. the rule under the common law, and is the rule under the present code.”
Petition overruled.
Dissenting Opinion
Dissenting Opinion.
— With the greater part of the original opinion in this case, as well as of the principal opinion on the petition for a rehearing, I fully concur. There can be no question that those who retain the original faith of a church, or congregation are entitled to retain also the property acquired by or given to such church or congregation. Those who fall away from the original faith, whether the majority or the minority can have no right to take with them any of the property of the church. The property having been given to the church, or acquired by it, for the purpose of sustaining or spreading the belief taught by the church and the practice of its doctrine, it would be manifestly inequitable that members afterwards rejecting the faith should have any part in the property used in disseminating the same faith. I am of opinion, however, that there was evidence in this case quite sufficient to sustain the finding of the trial court, and, this being true, that we have ■ no right to disturb the judgment so rendered. The evidence, as I read it, and even'the original articles of faith and practice, and the code of rules adopted by the church on its organization, sustain the finding that Mount Tabor Regular Baptist Church taught from the beginning the faith now professed by the appellees, and hence, that it was a Means Church from its foundation. The decisions of the various councils, and of the Danville Association, are all con
Much evidence was also given to show that, by the original constitution, of this church, the form of government is that the majority vote is the voice of the church, even in articles of faith; that each church must put its own construction upon the Scriptures, and that this must be done by a majority vote: There is no appeal to any other authority. The local church is supreme. The record further shows that, as a matter of fact, the anti-means minority was not expelled for any belief or want of belief, but “for disorderly conduct in declaring an unfellowship for a portion of the members of Mount Tabor Church.”
The evidence here referred to was believed by the trial court, who therefore found that the means majority were the true Mount Tabor Church, and rightfully entitled to the church property. I am at a loss, consequently, to know how we can, consistently with the rules of this court, disregard the finding so made, and reverse the judgment based upon it.
For the reasons here given, I must dissent from the conclusion reached by the majority of my brethren.
