[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 325
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 326 If the incorporation of 1867 at the house of Ritter can be sustained as that of the church congregation or society in question, there is no doubt but the corporation thus created became vested with the title to the church property which had been before conveyed to the trustees of the unincorporated society by force of section 12 (4) of the act. The circumstance that the certificate, as recorded, does not appear to have had seals is not necessarily fatal to its validity. It was undisputed at the trial that it had seals attached when it was executed, and whether the omission appearing upon the record was occasioned by the mistake of the recording officer, or by the loss of the seals before its delivery for record does not appear. The holding of the meeting, the election of trustees and the execution of the certificate in accordance with the statute, constitute the substantial requirements to create the corporation, and although the recording is necessary to its complete consummation, I do not think that an error in recording, or the accidental loss of one or more seals after they were legally and properly affixed, would prevent the corporation from taking effect as such.
It is insisted that the Ritter faction were not at the time of the incorporation a part of the congregation or society. It is not necessary to determine to what extent this question can be litigated collaterally. If they had no connection with the society, I think that fact might be interposed as a defense in this action, because they could succeed only to the property of the society of which they were members, and which they organized into a corporation.
The facts necessary to determine this question accurately do not very clearly appear. It is undisputed that the adherents of both parties, which are respectively denominated the Ritter and Bly party, originally constituted the church and congregation, and carried on religious services together, and *Page 328 were attached to the Buffalo synod. This relation was recognized in the deed of the property to the unincorporated trustees.
I infer that the quarrel arose in consequence of a change of ecclesiastical relations; a majority of the members becoming attached to the Missouri synod and receiving ministers and teachers from that judicatory, while the minority known as the Ritter party adhered to the Buffalo synod, and received ministers and teachers from that authority. It does not appear when this took place, but I infer that for a time both parties occupied the church edifice; but in 1867, when the alleged incorporation took place, the Ritter party were holding religious services at the house of Ritter and the Bly party at the church edifice. There was no withdrawal of the persons attached to the Ritter party from the church or congregation, nor were they removed therefrom, and I think they must be regarded as belonging to it. It is the case of a society or congregation holding religious services in two places and with separate ministers, but neither excluded from participating in the services of either. The Ritter party although in a minority, as is not unusual with minorities, was the most active and vigilant, and gave the requisite notices for a meeting to organize a corporation. These notices were read in the church as well as at the house of Ritter, and the meeting was called at the latter place. Regarding the congregation as worshipping at two places, according to the division indicated by their respective attachment to the Buffalo and Missouri synod, the place of meeting was within the statute, being "the place where they statedly attend for divine worship." This was one of the places. The meeting thus held incorporated that church, society and congregation, and the corporation when created, became by force of the statute, vested with all the temporalities belonging to it. I infer, although the evidence has left it quite vague, that after the incorporation the trustees took possession of the church edifice, and while engaged in holding religious services therein were interfered with, and compelled to withdraw *Page 329 therefrom by the defendants, and the defendants have held possession to the exclusion of the plaintiffs' rights ever since. If I have drawn the proper inferences from the facts the plaintiffs have the legal right to recover.
The subsequent attempt of the defendants to create a corporation was unauthorized, as the statute contemplates but one corporation for the same society or congregation, and at all events the first became vested with title to the property. It is true, as claimed by the appellants, that under our laws the temporalities of a church are controlled by a majority of the congregation, but this can only be done by the election of trustees favorable to their views. In this case the minority had the trustees, and the latter had the right of control. At future elections all the members may participate, and in a contest for trustees the majority will of course prevail, although the exercise of a moderate degree of that toleration and charity which the Christian religion teaches would enable all the members of this small church to dwell together in peace and unity, a consummation which would redound to the honor of all concerned, and to the interest of the religion which they all profess.
The judgment must be affirmed.
All concur, except RAPALLO and MILLER, JJ., absent; EARL, J., not voting.
Judgment affirmed.