Opinion on Petition for Rehearing.
McCabe, J.— 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 *393by reason of such expulsion, and not being a majority 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, *394the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations. If the principle of government in snch cases is that the majority rules, then the numerical majority of members must control the right to use the property. If there be within the congregation, officers in whom are vested the powers of such control, then those who adhere to the acknowledged organization by which the body is governed are entitled to the use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the governing body, can claim no rights in the property from the fact that they had once been members of the church or congregation. This ruling admits of no inquiry into the existing religious opinions of those who comprise the legal or regular organization; for, if such was permitted, a very small minority, without any officers of the church among them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the property when purchased or given, the court will not imply one for the purpose of expelling from its use those who by regular succession and order constitute the church, because they have changed in some respect their views of religious truth.”
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 *395church was founded, but has reference rather to the conflicting views of the two opposing bodies, as to Christian duty to adhere to the lawful’government of the country in time of war or rebellion. There was no pretense that the original faith on which the church was founded, in that case, made any declaration on that subject.
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 *396used as a means of support and dissemination of the Unitarian doctrine, and a place of Unitarian worship. Nor is the principle varied when the organization to which the trust is confided is of the second or associated form of church government. The protection which the law throws around the trust is the same. And though the tast may be a delicate one and a difficult one, it will be the duty of the court, in such cases, when the doctrine to be taught or the form of worship to be used is definitely and clearly laid down, to inquire whether the party accused of violating the trust is holding or teaching a different doctrine, or using a form of worship which is so far variant as to defeat the declared objects of the trust.” Therefore, that case not only does not lend any sanction to appellees’ contention, but is against it.
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 *397faitli or a creed, and abolished the old. But there is no pretense that the church had abandoned the original doctrine or faith upon which it was founded. The division arose entirely out of the exclusion of Keyser from the church in the course of discipline, and had no reference to any change or departure by the majority from thé original faith on which the church had been founded.
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 *398a minority faction adhering to such faith. It would be very much in point if there had been a division of the church in that case on a difference of religious belief, but there was no such division in that case.
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.
*399The court of appeals held that the statute did not apply. The only other point decided was as to the legality of the election of the trustees by the plaintiffs after constituting themselves into a new society. That point we shall notice further on. The next case cited in support of the proposition in question is Petty v. Tooker, 21 N. Y. 267. That case does squarely hold that a religious society, incorporated under the act of the legislature of 1813, in the State of New York, had power, through its trustees, elected under that act, ■to change from a Congregational to a Presbyterian church, even over the protest of the minority of the members, and carry the church property with them. But that was owing to the peculiar provision of the statute mentioned, and the peculiar construction placed upon it by the court of appeals of that state.
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, *400243; Petty v. Tooker, 21 N. Y. 267; Burrel v. Associate Reformed Church, 44 Barb. 282).
“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*401erty may have been obtained. This was the practical abuse which the Laws of 1875-6 were designed in the future to prevent, and they are required to be so construed as to carry that policy into effect.” To the same effect are The Reformed Presbyterian Church v. Bowden, 10 Abb. N. Cas. 1; Same v. Same, 14 Abb. N. Cas. 356; Isham v. Fullager, 14 Abb. N. Cas. 363; Field v. Field, 9 Wend. 395.
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.
*402And now, having examined all the cases cited in support of the proposition that the majority of a divided church may repudiate the original faith and hold the property, and having shown that those cases lend no support to such proposition whatever, and that there is no authority to that effect anywhere, we proceed to examine the third proposition, namely, whether the appellants, and those represented by them, ceased to have any interest in the church property by their alleged expulsion from the church. The case last referred to, together with Lawyer v. Cipperly, 7 Paige (N. Y.) 281, are both referred to as authority that appellants were no longer members of the church, but those cases do not lend any support to the proposition nor .to any proposition urged by counsel.
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*403ity were out of the church and could not raise the question of departure, and are not and were not members of the Regular Baptist Church of Mount Tabor, when this litigation began. This, too, in the teeth of the decision of three of the church judicatories to the contrary. The language employed by the Supreme Court of Iowa, in tile case of Mt. Zion Baptist Church v. Whitmore, 83 Ia. 138, 13 L. R. A. 198, referred to in the original opinion, is so much in point here that we appropriate it. “The minority lay at the door of the majority the charge of heresy. The majority says: ‘We constitute the church. All power is vested in the church, and, hence .in us. We determine that the charge is false.’ This is the precise claim made by the appellees as to the power of a majority, and it is the preciso action taken by the appellees as a majority in Mt. Zion Baptist Church, after which the council was called, the action of which it would now repudiate. * * * “The position leads to this: Consider the majority of a particular Baptist church as guilty of the grossest violations of and the widest departure from the church covenants and faith. Bmng accused by the minority, the accused sit in judgment, which it declares in its own favor, and then pleads the judgment it declares, as conclusive of its innocence, because no other man or body of men has authority to interfere. However such a rule may serve in purely ecclesiastical relations, we unhesitatingly say the civil law will not adhere to it where the result is to divert trust property from its proper channel.”
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 *404that such majority has excluded the minority from the church, and then argue that the appellants being such excluded minority cannot raise the question as to the title to the church property, elect trustees, or-dispute the claim of the majority that they are the church, because appellees, being such excommunicated minority, are no longer members of the church, and have no interest in the question as to who constitutes the church, or who owns the church property.
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 *405by one pastor. One was known by the name of the Eastern Church, another by the name of the Western Church, and the other by the name of the Liberty Prairie Church. The three churches in many things acted jointly in their businesis affairs. Each one of the congregations became divided on the doctrine of election. The different factions in each congregation became known as Missourians and anti-Missourians. In an action by one faction against the pastor, representing the other, for the possession of the church property, the question of the validity of the exclusion of one faction by the other being in the majority, became involved in the case, being the case of the West Koshkonong Congregation v. Ottesen, 80 Wis. 62, referred to in the original opinion, the court there said: “But it is here objected that, even if a corporation was created by these proceedings, it was simply a corporation of the anti-Missourian faction, and did not represent nor succeed to the rights of the pre-existing voluntary organization known as the ‘Eastern Church;’ in other words, that the anti-Missourian faction had not only seceded from but had been expelled from the Eastern Church, and consequently, could form no corporation which would include or become the legal successor of the voluntary organization known as the ‘Eastern Church.’ This objection demands careful consideration, because, if the anti-Missourians were not members of the Eastern Congregation, they could not give the notice required by section 1990, E. S., nor execute the certificate required by the following section, which must be executed by the members of the society. The question is, were t'he members, of the a.nti-Missourian minority still members of the Eastern Church? It is undeniably true that they were members of that church up to the time of the troubles in 1885 or 1886. Have they lost their membership since *406that time? Now,' if they have lost their membership, it must be in one of two ways — either by voluntary withdrawal or by expulsion. * *
“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 *407in the case from which the proposition is quoted, there was no question made, and none arose or existed in the case, as to the authority of those that performed the act or adopted the resolution or order of expulsion. It was not denied that it was done by the church. There was no division of the church on account of differences in religious belief, and there was no division on any other account. Simply the church expelled seven members, and they, uniting with others, formed a new organization and claimed the right to use the church house a part of the time; contending that they had been wrongfully expelled, but did not deny that the church had expelled them. But here it is denied that the expulsion was by the church. We agree that no judicial inquiry can be made as to whether the act of the church in expelling members is right or wrong, fair or unfair, so long as such act is in harmony with the law of the church. Nor can any such inquiry be allowed as to whether the laws, usages, practice, or faith of the church are right or wrong. That belongs to the exclusive province of the church, to fix, order, and establish. And when the church acts within its sphere or province, such act or acts are universally held binding and conclusive, not only upon the members of the: church, but also on the secular or civil courts, even where the rights of property are involved, and are dependent upon the action, rules or orders of the church.
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.
*408The evidence shows that each faction, thus claiming to be the church, expelled the other.
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 *409order to reach a resting ground for the claim that appellees, and those represented by them, are the church. But no rational man can say that either of the expulsions mentioned has changed the relations of either body to the church, unless such expulsion was the act of the church.
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 *410thus dedicated is being diverted from the use intended by the donor, by teaching a doctrine different from that contemplated at the time the donation was made, however delicate and difficult it may be* it is the duty of the court to inquire whether the party accused of violating the trust is teaching a doctrine so far at variance with that intended as to defeat the objects of the trust, and if the charge is found true, to make such orders in the premises as will secure a faithful execution of the trust confided. Watson v. Jones, supra; Miller v. Gable, 2 Denio. 492; Attorney-General, ex rel., v. Pearson, 3 Mer. 353; Watkins v. Wilcox, 66 N. Y. 654; Attorney-General, ex rel., v. Town of Dublin, 38 N. H. 459; Happy v. Morton, 33 Ill. 398; Fadness v. Braunborg, 73 Wis. 257.”
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 *411property to another purpose is an injustice of the same character as the application of other trust property to purposes other than those designed by the donor. Hence it is, that those who adhere to- the original tenets and doctrines for the promulgation of which a church has been erected, are the sole beneficiaries, designed by the donors; and those who depart from and abandon these tenets and doctrines cease to be beneficiaries, and forfeit all claim to the title and use of such property. These are the principles on which all these decisions are founded; and so long as we keep these principles distinctly in view, we can have1 no great difficulty in applying them to the facts of each particular case. * * * . ”
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 *412fully settled in Baker v. Fales, 16 Mass. R. 503, and Sandwich v. Tilden, there cited.” To the same effect is Roshi’s Appeal, supra, and many other cases, too numerous to cite. Therefore, it follows that if the minority were acting in harmony with the ecclesiastical laws of the church, and were adhering to the faith, and the majority were not, the minority, in law, was the real and true Mount Tabor Regular Baptist Church.
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 *413Mount Tabor Regular Baptist Church, and could not expel anybody from it, but that the minority represented by the appellants, were that church, because they were acting, as we there held, in accordance with the law of the church in adhering to- the faith, a-nd teaching the doctrines expressed in such articles of faith.
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 *414able to point to these lines in evidence as establishing that fact in the testimony of Elder Shirley, to-wit: “It — Mount Tabor Church — has always been means since my knowledge of it. So far as I know of its church history it has been means since the beginning of its constitution.”
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.
*415And here we notice, counsel urge that appellants relied hitherto on the theory that the decision of .the Danville Association was conclusive evidence of such departure, and we, having decided that it was not conclusive, but advisory only, appellants, it is contended, must succeed on that theory or fail. The theory on which the appeal was sought to be maintained, is that the finding was contrary to law, in that, it was contrary to the evidence. Appellants’ contention that the decision of the Danville Association was conclusive evidence of the charge of departure, was not inconsistent with the specification in the motion for a new trial, that the finding was contrary to the law and the evidence in the case. It was not essential to that theory that the evidence, or one item of it, should be conclusive against appellees, but it was a sufficient maintenance thereof that the finding was contrary to the evidence, without showing that any particular item of it was conclusive of the fact it tended to prove.
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 *416the decisions by the three several judicatories of the church had wrongly construed the articles of faith to be in conflict with the “means doctrine.”
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. *41716 Am. R. 118, 191; Ferraria v. Vasconcelos, supra; Kniskern v. Lutheran Churches, 1 Sanf. Ch. supra; First Presbyterian Church v. Bowdin, supra; Miller v. Gable, supra.
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.
*418These two doctrines, in the light of historical facts, of which courts take notice, are recognized as in irreconcilable conflict in Miller v. Gable, supra.
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 *419‘The First Society of Presbyterians in C,’ or ‘The First Society of Quakers in C,’ would be understood as made up of persons of the sect which the name of the society indicated; and if a donation of a church ha.d been made to certain persons * * * to be forever subject to the control of the First Society of Roman Catholics in C * * * the trust would have been held subject to the control of such, of the society, and such only, as adhered to the fundamental doctrines of the society as indicated by the name, even though they might be a minority of those who at first were numbered among its members.”
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*420sociation have in deciding that the means doctrine is a, departure from the faith as expressed in the articles of faith.
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 *421as he knows, believes in the means doctrine. That fact was not denied. How it was at the constitution of the church he does not state. What did he know? He was speaking more than fifty years after the church was founded, and only spoke so far as he knew. He testified that he was but a boy in 1859, which was twenty-four years after the church was founded. He did not profess to know wka.t the original faith was, on which the church was constituted. Such testimony, it has been held, affords no information as to what the original faith was on which the church was founded, and the faith at that time is the vital and turning point. Kniskern v. Lutheran Churches, supra; Roshi’s Appeal, supra; so that there is really no. conflict between the item of testimony in question and the articles of faith, and other evidence as to. what the original faith of the church was; but if there was such conflict the solemn written compact must be held conclusive.
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 *422reason- why the legality of the election of the appellees in this case is not to be considered, and that is there was no issue under which the authority of the appellants as trustees to sue could be inquired into.
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 *423be supported by affidavit. The character or capacity in which a party sues or is sued, and the authority by virtue of which he sues, shall require no proof on the trial of the cause, unless such character, capacity, or authority, be denied by a pleading under oath, or by an affidavit filed therewith. An answer in abatement must precede, and cannot be pleaded with an answer in bar, and the issue thereon must be tried first and separately. If the issue be found against the answer, the judgment must be that the party plead over, and against him for all costs of the action up to that time.” R. S. 1894, section 368 (R. S. 1881, section 365).
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.”
*424The answer here did not ask to abate the action, but asked judgment on the merits for the defendants. Therefore, under the statute and the previous decisions of this court, the matter in abatement was waived, thus making it wholly unnecessary to prove the character or capacity in which appellants sued.
Petition overruled.