(dissenting). I am unable to concur in the majority-opinions in the above-entitled case.
I am willing to concede, in fact, I have actually stated in my dissenting opinion in the case of Gudmundson v. Thingvalla Lutheran Church, 29 N. D. 291, 150 N. W. 750, that a civil court can only assume jurisdiction in church matters where property rights are involved. I am also willing to concede that the courts should not attempt to settle theological and ecclesiastical disputes except where it is absolutely necessary, and that whenever such a question has been submitted to and passed upon by a church tribunal the finding of that tribunal should be conclusive upon the courts. I am also willing to concede, as in the case of the so-called Nrederiekson resolution in the Gudmundson suit, that even though the particular dispute has not been passed upon by the church authorities, a prior ruling on a similar theological or ecclesiastical question should be considered as highly persuasive authority and be followed by the courts.
I also realize that many cases hold that, where the organization of a church is purely congregational and no particular faith or creed is defined in its constitution or deed of trust and no superior body controls, what are legitimate and what are not legitimate church usages, and what doctrines should be taught, is for the majority to determine.
I am, however, firmly of the opinion that when, as in the case at bar, the plaintiff seeks to have a conveyance of church property set aside and the interests of an allegedly seceding faction forfeited therein, property rights are involved and a civil court has jurisdiction of the controversy. I am also of the opinion that when, as in the case at bar, the complaint clearly alleges a departure from the original faith on which membership in the corporation is dependent, and the defendants demur to that complaint, the demurrer admits the facts properly pleaded in the complaint, including the departure from the faith; and that there is, therefore, on such a demurrer, no theological question to decide.
*301I am also of tbe opinion that when a complaint, as does the one in the •case at bar, clearly alleges the adoption of a church constitution, which recognizes a particular faith, and which pro /ides that in case of a schism ■those who adhere to that faith shall hold the property, and also alleges the joining with a synod of the same faith, and gifts and contributions to the church both by the synod and the members of the congregation on the ■strength of this fact of dedication and belief, and that this synod has passed upon the theological question involved though not in a direct controversy between the parties nor in the exercise of appellate jurisdiction over them, and a demurrer is filed which necessarily admits the facts which are properly pleaded, the departure from the faith and the violation of the provisions of the constitution are conceded, and there is again no theological question for the courts to decide.
Under such a state of facts I can see no difference between a case where the church property is given to the congregation by some third party and dedicated by such third party by way of trust to the congregation for the furtherance of certain religious doctrines, and one, as in the •case at bar, where the organizers of the church and the seceders themselves dedicate the property to that use by means of a written constitution.
I am of the opinion that the order of the district judge should be affirmed, and that the demurrer was properly overruled.