delivered the following dissenting opinion:
The facts in this case are few and simple, complicated with but little or no contrariety of evidence.
In March, 1854, Moberly desired to sell his small tract of land and appurtenances of about two and a half acres, within or adjacent to the town of Texas, in Madison county, and near the church edifice, belonging to the Methodist Episcopal Church, South, in which, the congregation of said church at Texas worshiped; and the’ minister in charge, and some of the members, desired to purchase it as a parsonage for said congregation, but were tardy in making up the necessary funds. It was then agreed that Jonas Griggs, James Owens, Jno. Marsh, and Hamilton Norris should, and they did, purchase it with their own means, at two hundred and twenty-five dollars, and took the title to themselves as individuals, but with the understanding, that when the congregation should refund to them the purchase price, they would convey it to trustees for the benefit of said congregation for a parsonage.
This property continued to be so used, save at short intervals, when not needed for a minister in charge of the congregation; and doubtless members of the congregation and others, from time to time, made up and refunded the money to these purchasers and holders of the legal title, save some four or five dollars. The Rev. J. G. Bruce, the then, and for several subsequent years, Presiding Elder of the district in charge, fully explains the reasons why the deed had never been made to trustees for the church. He says there had previously been difficulties about parsonages; therefore, he advised the purchase to be-made, and title taken to' a joint stock *412company, and not to the Methodist Episcopal Church, South, as this would place it under the direction of the quarterly conferences of the district; but that they should have the title so made as to remain private property, at least for that congregation ; that subsequently, the question was several times agitated in the quarterly conferences — some advocating the transfer of the title to trustees for the Methodist Episcopal Church, South, which he always opposed, and which the district conferences had uniformily voted down, because they understood it had been purchased with the means made up by individuals, and was to remain as the private property of the congregation, and not become the property of the general church, as was their general policy. The title thus remained in the original vendees, whilst it was always used as a parsonage, when needed by the ministers in charge, until, since the late war began, when, like many other congregations, unfortunate dissensions grew up in this society, until, in the year 1865, to use the very common but expressive language of many of the witnesses, “ it split up,” a very large majority withdrew, and subsequently organized a society under the auspices of the Methodist Episcopal Church of the United States, or better known as the old church organization.
These two congregations, now bearing the proportion of thirty-seven to one hundred and fifty members, and as both societies have had accessions since the division, it is not improbable that their proportions were relatively about the same then; for, though some of the ■witnesses do say they suppose the minority numbered from thirty-seven to forty, and the majority about sixty-five, at the time of the separation, yet the minister in charge, who holds the church book, fixed the exact *413number from it at thirty-seven, when his deposition was taken; and all agree that they have had accessions, whilst it may be possible that the majority have had a greater pro rata increase.
The title of the church edifice and lot being in the church at large, the majority left the minority in the undisturbed possession, control, and use of it; but as the title of the parsonage was not so, and as the grantees went with the majority,' they claim it exclusively, and having possession, this suit in equity was brought to compel a surrender of the title and possession to the minority.
The court referred the case to the Piaster to ascertain what part of the purchase price the individual members of the minority had paid, and which was found to be twenty-one dollars and fifty cents; and for this judgment, together with their costs, was granted them, and which they seek to reverse. Waiving all questions as to dedication to pious uses, and as to whether the statute of frauds and perjuries apply to the case, but resting the case alone upon the congregational rights of these beneficiaries, and whether the minority, who paid almost nothing for this property, after getting the entire church edifice and lot, which is doubtless worth greatly more, is also to have the parsonage by a rigid, and as 1 think, a too narrow construction of the statute, let us proceed to examine the obvious meaning and intent of the Legislature, and the natural, philological, and legal meaning of the terms used in the statute.
The statute of 1814 merely provided, that in case of schism or division of a religious societjr, the . trustees holding and controlling the trust property should not prevent the respective parties from the use of the property alternately, according to their respective numbers. *414Under this act no rights, as it was construed by the courts, were declared; therefore, when a schism or division occurred, the respective rights of the parties were adjudicated as though no such statute existed. But when our statutes were revised, in the year 1850, very different language was used, and rights in the respective parties were declared.
By subsec. 4 of sec. 3. chap. 14, 1 Stanton's Rev. Stat., 236, it is enacted, that “ in case a schism or division shall take place in a society, the trustees shall permit each party to use the church and appurtenances for divine worship — a part of the time, proportioned to the numbers of each respective party.” And by subsection 5, “the excommunication of one party by the other shall not impair such right, except it be done bona fide on the grounds of immorality.” These sections, when taken in connection with section 3, which -authorize any' society of Christians to hold not exceeding fifty acres of land “for the purpose of erecting thereon houses of public worship, public instruction, a parsonage, a graveyard, and a horse-pond,” legally places all such erections on the same footing, and to be governed by the same rules, under the same conditions, limitations, and rights.
Now what was the intent of the Legislature when it enacted this pro rata right in the respective parties on a schism or division of a society? The philological meaning of the term “ schism,” as defined by Webster, is—
“ 1st. In a general sense, division or separation; but appropriately, a division or separation in a church or denomination of Christians, occasioned by a diversity of opinions; breach of unity among people of the same religious faith.”
Whilst the same author defines “ division”—
*415“1st. The act of dividing or separating into parts any entire body.
“ 2d. The state of being divided-
“3d. That which divides or separates; that which keeps apart; partition.”
The common philological meaning of the statute, that, “ in case a schism or division shall take place in a society,” is exactly equivalent to saying, that in case a society shall separate, divide, or become partitioned, each party is to use the church without any reference as to whether it shall have any other or external ecclesiastical relation, or if so, with whom. And if anything else were necessary to show that the legal signification of these terms were of the same identical meaning, this is most clearly manifested in the fifth section, which also saves alike rights of the respective parties, though the one should excommunicate the other, save that this be done in good faith for immorality.
Now it is quite apparent, however this may be done for schismatical doctrine, and however regular may be the expulsion, and however deprived the party may be of all the church privileges as members, yet, when done for other than immoral conduct, it cannot affect their property rights. Nor did the Legislature intend to or really perpetrate the absurdity of keeping the expelled party from the. enjoyment of all ecclesiastical relations, by debarring them, on pain of forfeiture, from joining any other than the one they may be so excluded from.
The whole history of religious controversy in this State alike forbid this absurdity. The Baptist Church had met with several disruptions, and a very formidable one in the separation of a large paid of their members now known as “ Christians.” The Presbyterians had divided into Old and New School and Cumberlands. The Meth*416odist had divided into the Methodist Episcopal, and Methodist Episcopal, South, and Protestants; all the offshoots forming new and different ecclesiastical relations, and from which sprung many angry law suits, most generally resulting in great injustice, owing to the limited operation of the statute of 1814, often leaving an insignificant few, who still held to the old organization as the entire beneficiaries of valuable church property, erected by the substance and means of the deprived majority.
With this limited construction of the statute of 1814, the history of these controversies, and these gross injustices, can it be doubted what the Legislature meant by this statute of 1850 ? It was to relieve the courts and the parties of this iniquity, this injustice, this tyranny and oppression, perpetrated in the name and under the guise of religion. Nor are the rights of seceding parties, any more than expelled ones, in the least dependent on continued membership in the same society; but this fifth subsection was added by way of a prudent saving, and equivalent to adding to the fourth subsection: neither shall the expulsion of one party by the other deprive it of the right herein secured, unless this be done in good faith for immorality.
The sense of the two sections, taken together, is simply this: In case a schism or division shall take place in a society, the trustees shall permit each party to use the church and appurtenances for divine service a part of the time, proportioned to each party; and the excommunication of one party by the other shall not impair such right, except it be done bona fide, on the ground of immorality. This fifth subsection declared no new right in the expelled party, but preserved the right declared in the fourth subsection to the schismatical party, unless expelled for immorality.
*417Now how can this be construed as reserving this right to either party, on condition that it shall remain in the same ecclesiastical relations? Did the Legislature intend to perpetrate the absurdity and mockery of securing the beneficial rights then existing of parties who should differ as to their religious tenets or administration of discipline or other cause, not involving moral dereliction, by saying: when you thus divide, the joint property procured by your joint means shall inure to each party of beneficiaries, according to numbers; and you will not be required to worship together, but may do so on different days, under the ministration of different officers; but you are not to sever your ecclesiastical relations ?
The words “ schism ” and “ division ” were not used as equivalent to dissension, which, says Webster, means “ disagreement in opinion, usually a disagreement which is violent, producing warm debates or angry words, contention, strife, discord, quarrel, breach of friendship and union.’1'1 This word would have given the exact idea, that, notwithstanding these things, their respective rights are to still depend on their ecclesiastical unity, though in feelings, heart, sentiment, and for every essential religious purpose, they be totally estranged. But to suppose the law-makers used the words schism and division as equivalent to dissension, is to impute to the revising committee, three of the most distinguished lawyers of the State, and the whole legislative assembly, a monstrous ignorance of the meaning of terms, and to give this statute a most unnatural operation, producing the most absurd results, far less innocent than its inefficient prototype of 1814. Beside, as without the statute, the respective rights of mere dissentients would be just what this construction of the statute makes them, what earthly *418motive could there have been in its enactment; for no civil court would invade the precincts of the church, and determine its controversies upon questions of faith, discipline, or morals, and adjudicate which party was in the right or wrong? But it was for this exact case of division, separation, or partition of the congregation or society, that the rights in the joint property were to be preserved by this statute. This society had a schism, growing out of the disturbances and disasters of the late war, which created a división, separation, or partition, much the larger part going off or withdrawing; but their lights vested whilst they were members and beneficiaries, which the statute preserved intact, and prevented from being lost by the division, separation, or partition, and being so preserved, could not be forfeited by their uniting with another ecclesiastical organization.
This court, at its last term, in Gartin, &c., vs. Penick, &c., held, that the seceding members of a Presbyterian Church, known as the “Declaration and Testimony” party, did not lose their interest in the Bethel Union Church by their withdrawal from the ecclesiastical organization to which they had before belonged, but from which, on account of schism, they had withdrawn, leaving the remaining part of their local congregation still within the old organization and under the same officers, whilst they connected themselves with a different ecclesiastical body and jurisdiction. (Gartin, &c., vs. Penick, &c., ante, 110.)
The following quotation from the majority opinion, by Judge Robertson, is made to show that their rights were not considered as dependent on still continuing the same ecclesiastical relations, either internally or externally:
“ The inevitable conclusion is, that the General Assem bly itself forced the dismemberment of the Presbyterian Church, by acts which are void for want of higher au*419thority. And consequently, even if appellants held their interest in the church property by the tenure of adherance to the assembly, a severance of that connection by the unauthorized acts of the Assembly cannot affect the title to the property. They are still, in every essential element of identity, the same ‘ Bethel Union Church,’ as always hitherto.”
There might be more reason for saying that the General Assembly has lost its identity. It is certainly not what it was always before the war. By its belligerent antislaveryism and -political propagandism, it forced a division of a once American and once homogeneous church into two sectional and alien churches, and the disruption of the union between itself and many dissenting churches of the Northern section; and its changed conduct has, without any constitutional amendment, practically made innovations in its Confession of Faith and its Constitution of Government. In this way, and by its exscinding resolutions of 1867, it compelled a dissolution of ties of government and allegiance between itself, as the organic head of the church, and the appellants, as a reorganized and independent church.”
This withdrawing portion of the Bethel Union Church had never been exscinded, but had voluntarily withdrawn and joined a different ecclesiastical organization. The exscinding resolution referred to was applicable to the ministers and officers who had signed the “ Declaration and Testimony,” and refused to recant, but still abided by it.
The l’ights of the seceders in that case to participation in the church property was secured by a unanimous court. The Chief Justice was for applying the statute to the case, though he did not agree with the majority of the court in their reasoning and arguments; therefore, he delivered a separate opinion.
*420It will be observed that the statute assigns only one isolated cause of forfeiture, to-wit: for expulsion in good faith for immorality; so that the civil courts can inquire into but the one cause of schism, division, or disruption; it being all sufficient for them to know that there has been such schism and division in the society, and then divide the property pro rata, according /to the numerical strength of the respective parties.
This most wholesome and benign statute should be applied equally to either and both sides, without inquiry or solicitude as to which political or “religious party they may belong. It is sufficient to know that the statute applies, and, by its equitable provisions, that it will prevent either side from sequestrating and taking the property of the other, and unjustly converting it to their own purposes, and this, too, under the guise of religion, faith, duty, and right. This is so foreign from the ethical teachings of our great masters in equity jurisprudence, and the exalted equity therein taught, and so utterly at war with my conceptions of the teachings of the Divine Master, whose suffering, life, and doctrines form the most perfect and sublime system of justice and morals ever deigned by God to man, that a conforming spirit would seem to demand the liberalization of the just conceptions of the Legislature in this enactment, rather than restricting and rendering it inefficient by a narrow and rigid construction. Having applied it to what is conceived to be, essentially, just such a case, in ■ favor of t'he “Declaration and Testimony” Presbyterians, fairness and equality would seem to demand it should be applied to the Methodist Episcopal members — as seceders from all churches, societies, or congregations, on account of schism or division, should be alike protected and governed by the same legal and equitable rules; for no *421favorite church establishment is known to our Constitution and laws.
Whatever, therefore, may be the inapplicability of this statute, when the property is in the ecclesiastical organization at large, as much of it is in both the Methodist Episcopal Church and Methodist Episcopal Church, South, and understood to be in the Catholic and Episcopalian, yet, when the property belongs to the local society or congregation, it must apply, or be wholly incapable of performing its intended mission.
Believing that neither law nor justice gives this entire property to this small non-contributing minority, but that this would violate the letter and spirit of the statute, and be wholly inequitable, this, my dissent, is entered.