The present controversy is between two corporations of the same name. The suit is brought to annul a donation made by a majority of the members of Polar Star Lodge No. 1, as it existed under its charter granted by the Grand Lodge of Louisiana in 1855, to the defendant, and to recover back the property. It is made a question whether the plaintiff is the same corporation as that formed in 1855, or whether it is not one having its origin since the act of donation was passed and taking date in 1858 ? It is obvious that this question is vital, and if the plaintiff cannot trace back its origin to a time anterior to the date of the act of donation, that the controversy is ended.
If, on the other hand, the plaintiff is the identical corporation which existed in 1855, then as the defendant claims title through the plaintiff, the only remaining question is whether the act of donation irrevocably transferred the property to the defendant ? And it will be a matter of useless labor to trace back the history of the Masonic body acting under the title and name of Polar Star Lodge No. One to its origin in 1794.
In 1816 the Legislature, by a generallaw, incorporated the Grand Lodge’of Louisiana, and all other lodges under its jurisdiction so long as said lodges should remain under the power and juiisdiction of said Grand Lodge. 2 Martin’s Digest, 6C0.
*75In 1819 the power was conferred by the Legislature upon the Grand Lodge to create Masonic corporations under its jurisdiction, in these words, viz : “Be it enacted, &c., That all the regular lodges which have been constituted by the Grand Lodge of the State of Louisiana since the passage of the Act to which this is a supplement, (1816) as well as all the regular lodges which shall be hereafter constituted by the same, are hereby declared to be bodies corporate and politic in name and deed, by whatever style or name they may be called and known in their constitution, with equal powers to those given to said Grand Lodg’e by said.act, so long as the said lodges shall remain under the power and jurisdiction of said Grand Lodge, and in all things abide and conform-themselves to the resolutions and by-laws of the same, and no longer.” Acts 1819, p. 16.
In February, 1855, the Grand Lodge granted a charter to the Polar Star Lodge No. 1. This lodge, being the only Masonic body of that name, continued to act under the jurisdiction of the Grand Lodge until 1858.
At this time, viz: January 9th, 1858, twenty-two out of the forty-four remaining members of the corporation, with one other person, formed, under the general laws of the State, another corporation of the same name, viz : Polar Star Lodge No. One. After the formation of the new corporation, a meeting was called of the members of the old corporation, at which were present seventeen members of the new corporation and four of those still attached to the old lodge, and by the votes of the former against the protests of the latter, it was resolved to donate the property of the old corporation to the new one. An act of donation was executed in conformity to the resolution. Afterwards, at another meeting, substantially the same members passed a resolution withdrawing themselves from the jurisdiction of the Grand Lodge of Louisiana. They directed the Secretary to inform the Grand Lodge officially of their resolution. He surrendered to the Grand Lodge the original charter after having written these words across its face, viz : 11 This charier has been cancelled and surrendered according to the resolution by which the M.\ W.\ Lodge, Polar Star No. 1, withdraws itself from the jurisdiction of the Grand Lodge of the State of Louisiana. New Orleans, Feb. 16,1858. L. Gloeckner, Secretary.”
The remaining members of the old corporation present protested and denied that the corporation was dissolved. They, with four others, eight in all, also applied to the Grand Lodge for a duplicate or exemplification of their charter, and protesting against the act of the majority, denied that it could have the effect of extinguishing their charter.
The Grand Lodge passed the following resolution on the 9th of Feb., 1858.
“Resolved, That the charter of Polar Star Lodge No. 1 be entrusted to brothers P. Deverges, M.Mcilleur, J. L. Tissot, Charles Claiborne, F.Levasseur, O. Schwaner, A. Texier and F. A. Lumsden, and such other members of Polar Star Lodge No. 1 not otherwise named in the foregoing report, who shall give their allegiance to the Grand Lodge and who shall be received by the said eight brethren first named with power at once to proceed to organize their Lodge by the election and installment of officers ; and in default of obtaining the charter of said Lodge tor said purpose, this resolution shall be their warrant until such time as a regular charter can be furnished them.”
The District Judge was of the opinion that the resolution was the creation of a new charter, and that the very act of withdrawing from the Grand Lodge was, by the terms of the law, an extinction of the charter of 1855.
But it is manifest that the question, when pursued further, resolves itself into *76this : had the majority the right to dissolve the corporation to the prejudice of the minority,-by voting to withdraw from the jurisdiction of the Grand Lodge, and can a Masonic corporation be dissolved without the action of the public authorities, or at least of the Grand Lodge ? For the destruction or cancellation of the parchment on which the charter is written is not per se an annihilation of the corporation.
There is no doubt of the right of individual members to withdraw themselves from the lodge and from the jurisdiction of the Grand Lodge. And doubtless the whole of the members might do the same thing by their unanimous resolution. But so long as a sufficient number of members to represent and continue the corporation exists, it does not appear to us to be within the power of the majority to dissolve the corporation. They may dissolve their own connection with it, but they cannot prejudice the vested rights of their co-corporators by any act foreign to the objects of the corporation.
As a general rule, the question as to the forfeiture or dissolution of charters and acts of incorporation is one which concerns the public order, and the corporation is presumed to exist for all purposes of justice until the forfeiture is declared by the judgment of the courts in some proceeding in which the State is a party. No provision has been made which we recollect for the surrender of charters except those in 1842 in relation to banks. Whether the Grand Lodge has the power to declare the forfeiture of Masonic charters granted by itself, or to receive the surrender of the same, it is not now necessary to determine ; for it does not appear it has accepted the surrender of the charter of 1855, nor declared the forfeiture of the same.
It must,'therefore, be assumed that it still exists.
It is then contended that it exists, if at all, with its old officers and members, and in substance, that the proceedings under the resolution of the Grand Lodge are irregular.
To this it may be replied, that this suit has been brought by attorneys-at-law representing the original Polar Star Lodge No. 1, and the position now assumed is somewhat inconsistent with the defense, which is based on the supposition that the corporators forming the new Polar Star Lodge No. 1 have dissolved the old lodge as a consequence of their withdrawal from the jurisdiction of the Grand Lodge. If they affirm it to be dissolved, they virtually deny that they are cor-porators in it.»
At all events, the question goes to the right of the plaintiff to stand in judgment, for want of a resolution of the corporation authorizing the suit. This is a dilatory plea, which implies no want of absolute right in the corporation itself, and, therefore, should have been pleaded a limine litis.
The defendant, as already said, claims title to the property in dispute, through the plaintiff, and if it recovers at all, it must be by virtue of the donation passed before Joseph Lisbony, the 16th of January, 1858.
This donation was made (it has already been shown) in virtue of a resolution passed by the votes of the members of the defendant corporation acting also as members of the Polar Star Lodge, No. 1, under its charter of 1855, and against the protest of such of the remaining members as were present at that meeting.
The effect of a lease made in this manner was recently considered by us in the case of Knabe v. Ternot et al., and we then held that the adverse interest of the corporators disqualified them from leasing the property to the new corporation in which they were interested, if done against the wishes of the remaining cor-*77porators, and that such lease was violable. Were any other doctrine law, in our State, where corporations are so easily organized, a majority of the new corporation might form a third corporation and the property might be in the same manner transferred to the latter, and then again to a fourth, and so on, and thus a large corporation aggregate might find its property in the hands and enjoyment of the few, and perverted to uses never intended by the founders of the original corporation.
Under the authority of the case of Knabe v. Ternot, el al., the donation must be declared void.
On the question of revenues the testimony is conflicting. Plaintiff’s witnesses testify what rent might be raised from the property. Defendant’s witnesses testify what the rent would be if the hall were occupied for the purposes for which designed, and we shall adopt the highest estimate of these witnesses.
The proof is also unsatisfactory as to what particular personal effects belonged to the plaintiff and were transferred by said act of donation. We shall remand the case, in order that proof may be adduced on this head, and also of the value of any articles which may have been disposed of or destroyed by the new corporation.
It is, therefore, ordered, adjudged and decreed by the Oourt, that the judgment of the lower court be avoided and reversed, and that the said resolution of the 14th day of January, A. D., 1858, and the said donation passed before Joseph Lisbony, on the 16th day of January of the same year, A. D. 1858,. be declared null and void; and it is further ordered, adjudged and decreed, that the pla intiff do recover and have judgment against the defendant for the property and possession of the real estate described in the plaintiff’s petition, and situtated in the square bounded by Love, St. Olaude, Esplanade and History or Annette streets in the city of New Orleans, and that the plaintiff do recover and have judgment against said defendant for rent at the rate of six hundred dollars per annum, from the sixteenth day of January, 1858, until said property be surrendered to the plaintiff for the use of the same, and the movables mentioned in said act of donation ; and it is further ordered, that this case be remanded to the lower court, to inquire what movables were included in the act of donation passed before said Joseph Lisbony, and to render judgment for the same, including the value of such as may have been disposed of or destroyed, if such there be ; and it is further ordered, that the defendant pay the costs of the apppeal.