Smith v. Pedigo

McCabe, J.

— This was an action for the recovery of the possession of real estate, in the ordinary form under the code, brought by appellants against the appellees. A change was taken from the court, and the special judge called to try the case first, the lion. Ralph Hill, made a. special finding of the facts and stated conclusions of law, upon which judgment of recovery of the possession in favor of appellants followed. A new trial, as a matter of right under the statute, was granted to the appellees. That special judge declining to hear the case again, the Hon. William M. Franklin was called and tried the case again without a jury. He found generally for the defendants, the appellees, and, over a motion for a new trial, rendered judgment for appellees, the defendants below. The only error assigned here is the overruling the motion for a new trial. The grounds of that motion are, that the finding of the court is not supported by, and is contrary to the evidence and the law.

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 represents, and is the real and true Mount Tabor Regular Baptist Church, if either one is: This involves an inquiry into certain religious doctrines and practices of that church, as a religious society or body. Not because the law which we are to declare recognizes any particular form of doctrine or faith and practice as the true one, nor because the law requires any form of doctrine or religious belief from anyone, or from any society or church whatever; but because, in a. case of a divided congregation of a church or religious society on account of a difference of religious belief, faith, and practice between the disagreeing divisions, it may become necessary, where there is a dispute as to the title to the church property, to inquire which faction, or division, still adheres to the original faith and doctrine, rules and laws upon which the church was founded, if either does, and which one has departed therefrom, if either has; these religious doctrines, faith, and practices, rules and laws, on which the particular church was founded, and the present faith and beliefs of the contending factions, are listened to by the court, not for the purpose of arriving at fundamental or ultimate religious truth, or for the' purpose of learning about our true relation to the supposed author of our being, or what our state is to be after this life; but these religious doctrines and practices are listened to by the court solely as facts, upon which civil rights, and rights, to property are made to depend, regardless of the ultimate truth or soundness of such doctrines, practices, and beliefs. Indeed, ever since the complete separation of church and. state, in the crowning glory of civil government among men, by the constitution of the United States, declaring that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” which, was followed by similar provisions in most of the state constitutions, and especially our own, the law has known no religious- creed, no religious opinion, no religious doctrine, no standard of belief, in matters pertaining to religion. Our State Constitution, framed by wise men, and adopted by the people, has still more securely placed us out of the reach of those fierce and bloody struggles arising out of a difference in religious opinion in former times, by declaring that “All men shall be secured in their natural right to worship Almighty God according to the dictates of their own consciences,” and that “No law shall in any case whatever control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience,” and that “No preference shall be given by law to any creed, religious society or mode of worship; and no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent,” and that “No religious test shall be required as a qualification for any office of trust or profit.”

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 same time insist on his right to exercise and enjoy the benefits and privileges of a member of such church, contrary to the rules and laws upon which such church is established.

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 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.

“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 members 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 evidence shows that all “Regular” .Baptist churches in the United States are founded on substantially the same articles of faith and rules of decorum as those copied above, upon which Mount Tabor Regular Baptist Church was founded, and that these written documents are treated by all such churches as their constitution and law of their existence. The evidence further shows, without any contradiction, that the government of these churches is congregational in form, and that each church is the governing power for itself. The evidence also in like manner shows that the only other ecclesiastical body connected with these local churches is what is called the association and the council of the Regular Baptist churches. The association is an annual meeting, composed of messengers carrying a letter from each church belonging to the association, which letter generally gives some expression of the continued adherence of the church to their articles of faith, a detailed. account of the condition of the church, its progress, travels, trials, and troubles, if any, since the last meeting of the association; which letter constitutes the credentials of such messengers upon which they are either admitted to seats in the association as representatives of the particular local church named in the letter, with power to vote on all questions coming before the association, or they are refused such seats, as to the association shall seem proper, according to the laws, usages, and practices of the Regular Baptist churches and their associations.

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 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 join the association, to apply by letter and messengers, to state their faith and by whom constituted, unless it be a church dismissed by letter from a sister association in our union.

“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 designated as the “means” party and the “anti-means'” party. The difference between the two beliefs upon that point is aptly explained by the two leading witnesses, one on behalf of appellants, and the other on behalf of appellees. Elder Shirley, on behalf of appellees, stated that “The anti-means brethren believe that sinners are regenerated by personal contact with the Holy Spirit; that persons are regenerated without means or any instruments whatever; that it is the sole original work of the Holy Spirit. While the means believe the work of regeneration, the power of quickening, is, in every sense, by the Holy Spirit, yet, that God uses the ministry of the gospel and Christian service and prayers and" intercessions, as a means of leading sinners to Christ; and hence, that they are quickened, being penitent of their sins, by the Holy Spirit and the life that comes from God. The anti-means party declare that just as many sinners of Adam’s race and of the different nations would be saved .if there never had been a Bible written or a sermon preached. While the means party believe that ministers are now working under the original commission that Christ gave the apostles, and that it is God’s wish and God’s plan that the gospel shall be preached, * * and He has promised He will go with them to bless the word preached for the regeneration of sinners and the up-building of the church of Christ.”

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. I never limit Jehovah * * let Him do just as He pleases. * * * But I don’t believe He needs any vehicle to convey His spirit. '"' ':f But when persons take the position that God has to have the gospel as a vehicle, or He has to have the gospel, or something else, as a means in order to get to the sinner, then it is seriously objected to * * * by the anti-means party; * * * as the thief on the cross * * * there was no gospel there at all, yet God quickened and saved him.”

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 the above defined belief of the minority, represented by appellants, was the original belief and faith of Mount Tabor Church, and that the above defined belief of the majority, represented by appellees, was an innovation and a departure therefrom.

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 this country. This court, in the case of White Lick Quar. Meet. of Friends, et al. v. Same, 89 Ind. 136, quoted from that case with approval, the same we now quote, but the quotation was not so applicable to that case as it is to this.

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 ecclesiastical organization. The land was before them, but then they must cease to be a German Reformed Church, and abandon all claim of right to hold any of the property of that church. It was a part of their religious liberty, guaranteed to them by the constitution of the Commonwealth, to separate from their former association, if they became dissatisfied with its faith or order, and build for themselves another church and organize on other principles; but it was no part of that liberty to appropriate to themselves, in their new capacity, property which had been solemnly consecrated to other tises. * * * To this question there can be but one answer in law, equity, good conscience, justice as well to the living as to the dead.” The court adjudged that the minority were acting in harmony with the law of the church, and that they were entitled to the property. These principles were recognized and reaffirmed by this court in the late case of Lamb, et al. v. Cain, et al., 129 Ind. 486, where it is said, that, “there is no doubt that a person owning property in his own right may dedicate such property, by way of trust, to support and propagate any definite doctrines or principles, provided it does not violate any law of morality, and sufficiently expresses in the instrument by which the dedication is made the object of the trust. In such cases it is the duty of the courts, in a case properly made, to see that the property so dedicated is not diverted from the trust attaching to it, and so long as there are persons in interest, standing in such a relation to the property as that they have a right to direct its control, they may prevent the diversion of the property to any use different from that intended by the d'onor. If such trust is confided to a religious denomination or congregation it is not in the power of a majority of that denomination or congregation, however large the majority* may be, by reason of a change of religious views, to carry the property thus dedicated to a new and different doctrine.” The particular doctrine, practice, and faith of Mount Tabor Regular Baptist Church, as expressed in their articles of faith and rules of decorum, had been long established, and were well knowm and regarded by all as the law of the church when the deed in this ease was made conveying the lot to the three trustees named, for the use of said church. We, therefore, do not think it was in the power of the majority, by reason of a change of religious views, to carry the property thus dedicated to a new and different doctrine.

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 fundamental law of the church, in his faith and belief the majority cannot carry him into the church and make him a member. If the majority cannot admit one who does not believe or acquiesce in the articles of faith, then it would be equally true that the majority have no power to change the faith of the church against the objection or protest of the minority. As well might it be contended that a banking corporation or association, by a majority vote of its stockholders or directors, could change its business from banking to insurance business, or into that of a railroad company against the protest of the minority, and vice versa.

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. The majority paid no attention to these things, further than to exclude the minority from the church because of these proceedings. Before the next association met, another council was called from a majority of the churches composing the association, an unavailing request having been made of the majority by the minority to take part in it, which they declined. That council also heard the evidence in support of the charge against the majority, and it also decided that the charge of departure from the faith, contained in the articles of faith, was established against the majority, and that the minority was the true Mount Tabor Church, walking in gospel order. And they recommend to sister churches to recognize the minority as the Mount Tabor Church.

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 which concern the doctrines and discipline of the respective religious denominations to which they belong.” Therefore, we feel doubly assured that the decision we reach on the question of doctrine and departure from faith by the majority is correct, since three several ecclesiastical tribunals of this church have so construed the articles of faith, rules of decorum, and the doctrine believed and practiced by the majority.

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 it joined the association, and hence the refusal of the association to receive the letter and messengers sent by the majority, amounted only to a withdrawal of Mount Tabor Church from the Danville Association. The majority were not seeking a withdrawal, but recognition as the only true Mount Tabor Church, and admission to seats as such by her messengers in the Danville Association. Defeated in that, they turn around and say the ■ Danville Association had no power to enforce her decisions, and they assume to withdraw Mount Tabor Church from the Danville Association, and they organize a new association and join it, called Mount Tabor Association. But they are foiled in that, because, from the records of the Dan-ville Association, shown in evidence, it appears that Mount Tabor Church is still a member of the Dan-ville Association. While the evidence clearly shows that by the laws, rules, usages and practices of the Regular Baptist churches, a church may withdraw from an association without destroying its identity as such, and without disorganizing its self-existent government, yet there was not a particle of evidence to show that a part or faction of a church might do so.

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 Association had. no power to enforce its decision and decree, that the civil courts, therefore, are powerless to protect a title to1 property, dependent upon that ecclesiastical decision and decree. According to the code of morals which the civil law requires us to uphold in all cases-, the majority are estopped from such a contention. If their contention were to- prevail, the civil courts would find themselves recognizing one faction of a divided church as the true church, while the ecclesiastical courts of that denomination would be recognizing the other faction as the true church. In other words, appellants’ contention requires us to hold that the faction of Mount Tabor Church known as the majority, is the true Mount Tabor Church, while the undisputed evidence shows that all the ecclesiastical courts of that denomination, outside of that -faction itself, has recognized the other faction, the minority, as the only true Mount Tabor Church. Such a -contention has never been upheld by the decision of any court of last resort that we have been able to find, either in America or England, and our duty forbids us to be first to set the example.

• 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 association thus recognized them, is persuasive evidence that they were not seceders, and that their rights have not been forfeited.” Bouldin v. Alexander, 15 Wall. 131.

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 upon the subject. And. when considered in connection with the circumstances of the separation, and in view of the principles upon which the Ohio Yearly Meeting was organized, they satisfactorily show that the meeting over which Binns presided affiliated with the undoubted regular women’s meeting, was and is the true ‘Ohio Yearly Meeting of the Society of Friends,’ within the terms and meaning of the grant, whereby the trust estate in controversy was created.” This case was cited with approval by this court in White Lick Quar. Meet. of Friends v. Same, supra.

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 narration of the church troubles and the calling of a council and its decision], and contains averments that the defendants, and those associated with them, have departed from the faith and practice of the Baptist church, and are using the church building and records for the benefit and promotion of doctrines and faith contrary to and in violation of the faith, covenants and practice of the Baptist denominations, to maintain which the church was organized and the buildings erected. The relief sought is, that the defendants be restrained from interfering with the plaintiff in the free use of the church buildings and property for their legitimate use as a place of worship, and teaching the doctrines of the denomination. The answer puts in issue the allegations of the petition. * * * * The council found the doctrine of ‘entire sanctification,’ as taught by Smith brothers, was ‘not in harmony with the teachings of the Baptist denomination,’ but ‘subversive to the very end sought,’ and ‘destructive of the peace’ of the churches. The correctness of this doctrine as a rule of faith and observance in the Baptist church was in dispute between the factions. It was ■ not, as indicated by appellees’ argument, a question of the truth or falsity of the doctrine on Scriptural authority, but was it in accord with, or subversive of, the covenants and practice of the Baptist church, with the limitations imposed by its articles of association. This was a purely theological question, and a council of theologians from that church was a proper tribunal to determine such a question, and was so recognized and agreed upon by the parties. It is, however, contended by the appellees that they are not bound by this finding of the council, and we notice their reasons, or at least some of them. Much stress is laid upon the fact that each Baptist society is an independent body, with no- higher ecclesiastical authority for its control; that its form of government is congregational where a majority govern; and that it is within itself ‘a little republic.’ It should be borne in mind that it is the distinctive character of the Baptist church government that is relied upon to make it an exception, and free it from the generally expressed rule of law, by which a minority of an association may claim its property against a majority seeking to divert it from its legitimate use. A quotation from the appellees’argument will indicate clearly the objection to be met. It is said: ‘Yes, we repeat again if this church or any other Baptist church desires to change its “articles of faith” or belief, it may do so, if a majority of its members concur therein. If it -desires to change to a Mormon church it may do so, and no person or persons, no man or body of men, either civil or ecclesiastical, has any right to interfere. It owes no allegiance to any man, or body of men, except a majority of its. own members. It has no creed except the Bible, and the right of its own members to interpret that according to the dictates of their own consciences. If a majority of the members of that church believe the Bible to teach a certain doctrine, then that is “Baptist doctrine,” because that church has the right and the power to determine for itself what the Bible teaches, and no other church or churches has any right to interfere therein.' The Baptist as a denomination, have no creed. There is no such thing as a one Baptist church with a one Baptist creed or belief. All there is of “Baptist creed” consists in the right of each separate church to inter, pret the Scriptures for itself, and to say for itself what it believes the Scriptures to teach. There are a,s many “Baptist churches” as there are several societies or congregations. There are as many “Baptist denomina, tions or creeds” as there are several societies or congregations which have given expression to their belief of what the Scriptures teach.’ Afterwards follows the conclusion: ‘We conclude, then, if there be a difference of opinion between the plaintiffs and defendants as to what the Bible teaches with reference to sanctification, and the defendants are in a majority and plaintiffs a minority, according to Baptist practice and usage, there is but one remedy, namely, “they may retire, and find a home in some other church; or, they may organize themselves into a new one.” ’ ” The court then goes on to say: “This exclusiveness of government within the strict lines of ecclesiastical authority may be conceded; but we are constrained to doubt that any writer, either upon ecclesiastical or civil law, where a controversy involved the right of a minority of an association to have its property devoted to the purpose for which it was given or granted, has laid down a rule so broad. * * * We are not adjudicating the right of any person to a religious belief or practice, nor are we to determine the truth or falsity of the doctrine of ‘sanctification,’ or ‘sinless perfection.’ 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. The following, cases, more or less directly sustain the rule, and are but a few of the many bearing on the question: Kniskern v. The Lutheran Churches, 1 Sanf. Ch. 439; Attorney-General v. Pearson, 3 Mer. 353; Baker v. Fales, 16 Mass. 147; Stebbins v. Jennings, 10 Pick. 172; Hale v. Everett, 53 N.H. 9; Lawyer v. Cipperly, 7Paige281; Baptist Church v. Witherell, 3 Paige 296; Harrison v. Hoyle, 24 O. St. 254; Fielde v. Field, 9Wend. 395,401; Miller v. Gable, 10 Paige, 627, 2 Denio, 492; M. E. Church v. Wood, 5 Ohio, 284; Happy v. Morton, 33 Ill. 398; Lawson v. Kolbenson, 61 Ill. 407; Dublin Case, 38 N. H. 459; Watson v. Jones, 13 Wall. 679; Fadness v. Braunborg, 73 Wis. 257, 41 N. W. Rep. 84; Presbyterian Church v. Congregational Society, 23 Ia. 567; Schnorr's Appeal, 67 Pa. St. 138; Roshi’s Appeal, 69 Pa. St. 462.

“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 derivaticm limits the power. The organization gave birth to the church, and a power to govern the church. The church is Baptist because of the faith and covenants that make it so. It is mot the faith and covenants that need, or are to be governed, but the members in the enjoyment and fulfillment of the same. The power to govern the church gives no power to' change the church or the faith and covenants that fix its character. The property of this church is the common property of all its members, and each has such an interest therein that he may insist that it shall be devoted to the religious faith for which it was given. * * * But there is no delegation of authority to the majority to apply it to the advancement of a church of another faith 9 * 9 or by changing the faith of the majority of the1 members of the church. * * * If, perchance, a bare majority of some Baptist church should determine, on Scriptural authority, their right to a plurality of wives, and, against the protests of a minority, devote the property of the church to the advocacy and practice of such a doctrine, under the claim of appellees that the church ‘owes no allegiance to any man or body of men, civil or ecclesiastical, except a majority of its members/ the only redress of the minority would be to retire from the church, and leave the property to the majority for such a purpose. Such a surrender of civil rights is without support on any principle of natural justice, and we believe without the sanction of any judicial tribunal.”

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 a council only, in which, the appellees participated, whereas, here the appellees did not participate in either one of the councils that decided against them, though they were invited to do so. But they did participate, or asked recognition as the true church at the hands of the association, the same as the appellants did; and the association was a more extensive ecclesiastical body than the council, and though its powers were like the council, advisory only, they were more extensive. The same conclusion was reached in favor of a minority of a. Baptist church of the same faith and order in the Supreme Court of Tennessee. Nance v. Busby, 18 S. W. Rep. 874, The following cases are closely in point. Rottman v. Bartling (Neb.), 35 N. W. Rep. 126; Baker v. Ducker, 79 Cal. 365. See also annotation in 33 L. R. A. 832.

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.

Pot this error the judgment is reversed, with instruction to sustain the motion for a new trial.