The plaintiffs pray for an appraisal and sale of the meeting-house, and for general relief, agreeably to the provisions of Gen. Laws, c. 154, s. 17, which is a reenactment of s. 2, c. 10, Laws 1871. The statute provides that when any meeting-house or other real estate is owned by two or more religious societies, or when two or more societies own pews in a meeting-house, and either society is desirous of terminating the joint ownership or ownership in common, it may apply to the supreme court for an appraisal and sale thereof, and the court may direct a sale, and distribute the proceeds to the parties interested. The fee of the house and land is in the defendants. The plaintiffs are not tenants in common or joint tenants with the defendants in the house, and have no interest in the house except as pew-owners of forty-nine and one sixth pews. The defendants own two pews. The right of a pew-owner is the right to the use of the pew during divine service. His right is subject to the right of the owners of the house to take down, rebuild, or remove the house for the purpose of more convenient worship. Fisher v. Glover, 4 N.H. 180; Jones v. Towne,58 N.H. 463. If the court has authority under this statute to order a sale, it can only be of the plaintiffs' and defendants' pews, for the plaintiffs do not own the house, nor are they tenants in common of the house or of the land on which it stands. The plaintiffs do not need a decree to enable them to sell their pews; and the statute does not authorize a sale of the house and a division of the proceeds between the defendants who are and the plaintiffs who are not owners of the house, for the purpose of depriving the defendants of the legal control of their property on account of a difference of theological opinion, and the sectarian use which the independent society makes of its own pulpit. That use is one of the rights of the incorporated owner of the house and pulpit, subject to which the title of the pews is held. *Page 393
But the plaintiffs claim that aside from the statute the court can grant relief under the equity powers which it possesses, and they claim that they make a case for the interposition of this power. Their position is, that the plaintiff society and its members, owning eighty-seven and a half pews out of a total of one hundred and fourteen, of the value of $7,823.94 in a total valuation of $10,018.79, are excluded from any beneficial use of their property by the action of the defendant society in supplying preaching opposed to the doctrines upheld by the plaintiffs, and therefore ask that the house may be sold and its proceeds divided among the pew-owners. Religious societies are voluntary corporations, formed for the purpose of maintaining public religious worship, and are recognized by our Bill of Rights (art. 6) and protected by our laws. The members of the corporation are those who associate together for that purpose by written articles signed by each member. G. L., c. 153, s. 1. The pew-owners, as such, do not constitute the corporation, and have no voice or vote in the management of its affairs. The statute (G. L., c. 153) is, — "Sec. 2. Such society shall possess the powers and be subject to the duties incident to corporations of a similar nature, so far as the same are not limited or enlarged by this chapter; may take and hold real and personal estate for the purpose of erecting and keeping in repair a house of public worship, a parsonage house, and other buildings necessarily connected therewith, and supporting the ministry in such society; and may improve and dispose of the same for the sole use and benefit of such society; but the annual value or income of all the property of such society shall not exceed $5,000.
"Sec. 3. No person shall be liable as a member of any society, without his express consent first had and obtained; and any person may separate from any society, by leaving with the clerk thereof a written notice by him signed of his intention so to separate, and paying all legal assessments and arrearages then due from him to such society.
"Sec. 4. Such society may assess and raise money by taxes upon the polls and ratable estates of the members thereof, and collect and appropriate the same for the purposes aforesaid; and the assessors and collectors, in assessing and collecting any such tax, shall have the powers and be subject to the penalties of similar town officers in like cases."
It is the society that is authorized to hold property for the purpose of erecting a house of worship and parsonage, and for supporting the ministry. Members of the society only are subject to assessment, and to them alone is entrusted the management of its affairs. No pew-owner can become a member against his consent; and if a member, he does not lose his property in his pew by separating from the society.
Various statutes have been passed from time to time which have been consolidated into c. 154, Gen. Laws, having for their object *Page 394 the sale, repair, and modification of meeting-houses. Thus: In 1848 a statute authorizing the sale of meeting-houses unoccupied for two years: in 1865 a statute authorizing the sale of a meeting-house built by the pew-holders which has ceased to be occupied. But none of the provisions of that chapter are applicable to this case. "It merely recognizes the superior rights of the society as they existed at our common law, and provides a mode of compensation to the pew-owner for the loss or destruction of his pew in certain cases." Jones v. Towne, supra, 465.
The bill alleges that this house was built in 1801 by certain members of the church upon land of the town "for the use and benefit of the inhabitants of the town," and was nearly or quite paid for by the sale of pews. Until it was rebuilt it was used by the church as a place of public worship, and by the town for holding town-meetings. In 1833 the town conveyed the house to the defendant society, reserving the right to use it for town purposes, and to the pew-owners their right to their pews. When the house was rebuilt in 1837, it was done by agreement with the pew-owners, the expense of rebuilding and the value of the pews in the old house being paid by a sale of the new pews. It thus appears from the bill that neither the title nor ownership of the house was in the church as a corporation, nor in the pew-holders, but prior to 1833 in the town, and since in the defendant society. The Dublin Case, 38 N.H. 459, 576; Hale v. Everett, 53 N.H. 9, 83, 143-145.
It is doubtless competent for persons to form a religious corporation, and agree among themselves that none except pew-owners shall be members of the corporation, and when a pew-owner sells his pew that he shall cease to be a member. Doubtless they might go farther, and stipulate that the sale of pews be restricted to such persons as the corporation will vote to receive, and this for the purpose of preventing persons of other denominations from obtruding their presence and stirring up dissension. There are such religious societies in Massachusetts, existing under special charters. French v. Old South Society in Boston, 106 Mass. 479, 487. But there are no stipulations of that character in this case and no restrictions upon the sale of the pews.
As there is no law requiring a church to be connected with a religious society, it may exist without such connection. Holt v. Downs, 58 N.H. 170. Such a society is as independent as a church. Its relations are such as it chooses. It may choose none. Whether a church and parish shall carry on all or any part of their work separately, or jointly, is a question for them to decide. The law does not require them to make any stipulation on the subject. Holt v. Downs, supra, 172. It is immaterial, then, what have once been the relations existing between the defendant society and the church formerly associated with it. The church as a church never had any ownership in the house. If members of the church have been or are now members of that society, it is not *Page 395 because they were or are members of the church, but because they entered into a compact with the other members of the society to become such. The defendant society owning the house may carry on its work of furnishing such religious instruction as it alone, or jointly with such church as it may any itself with, may choose to support. See Wood v. Cushing, 6 Met. 448, 456. We are not aware of any case where it has been held that the pew-owners can decide what doctrine shall be preached except where the society is composed of pew-owners only. Any other rule would expose every religious denomination to the risk of having its pews bought up by persons of hostile religious views, and, by becoming a minority, of being turned out of its own house. Attorney Gen. v. Prop. of M. H. c. of Boston, 3 Gray 1, 48. A compulsory sale of the defendants' property, and a transfer of a part of the proceeds to the plaintiffs, would be an inappropriate remedy for anything of which the plaintiffs complain.
Demurrer sustained.
STANLEY, J., did not sit: the others concurred.