(dissenting.)
I dissent from tbe judgment of the court. Tbe receiver asks tbe court to order William B. Preston to deliver forthwith to him, as receiver, the personal property in his possession, and described in the petition. It is alleged in tbe petition that tbe title and possession of this property was in the defendant, tbe Church of Jesus Christ of Latter-Day Saints at the time of its dissolution by the act of Congress of March 3, 1887. That corporation and a number of other defendants file their joint and several answer, in which they allege that on the 28th day of February, 1887, the late John Taylor was the trustee in trust for the corporation above named, and was in possession of the property in question; and on that day, as trustee, he assigned, transferred, and delivered the same to the Church Association of the Salt Lake Stake of Zion, a corporation, which then and there took possession of it; and that afterwards, on the 12th day of March, 1887, the latter corporation assigned and transferred the property to William B. Preston, presiding bishop of said church, in trust to be used and employed in the construction of the Salt Lake Temple, property owned by the church on and before July 1, 1862, and that said property at all times has been used by it exclus-sively for religious purposes; and that Preston then and there took possession of such property, and is using it in building the temple, and in no other way.
The assignments above mentioned are produced in evidence; and the incorporation on the 3rd day of July, 1886, of the Church Association of the Salt Lake Stake of Zion is also shown. This latter corporation is not made a party to the original bill or to this proceeding. In view of these facts, and without a trial, ought the court to assume that this corporation and its trustee, Preston, has no title or right to the possession of the property, and grant a per*549emptory order to deliver tbe possession to tbe receiver, or should tbe court leave tbe receiver to bis appropriate remedy by action? When tbe receiver finds property in tbe possession of a person other than tbe defen danti and tbat person claims tbe right to it by virtue of a superior title, be should institute an appropriate action to determine the title and right of possession. Courts will not assume tbat such third party, claiming by virtue of a superior title, has no right to tbe property, and premptorily order him to turn over tbe possession to tbe receiver, unless it is clear tbat such third party has no right to it. Tbe court can act in .such a summary way only when tbe rights of tbe parties are obvious, and not tbe subject of serious controversy. 1 High. Rec., sec. 149; Gelpeke v. Railroad Co., 11 Wis., 454. Tbe Church of Jesus Christ of Latter-Day Saints is. tbe name adopted by a religious sect or denomination tbat professes a set of doctrines held by tbe members in common. Tbe church consists of societies and congregations in this and other territories, and in tbe various states and foreign countries. Its members residing in Utah incorporated under a special act of tbe territorial legislature, in force January 19, 1855. Tbat act was repealed by tbe congressional enactment of March 3, 1887. 'But it appears tbat tbe members of tbe church in Salt Lake county associated themselves under tbe name of tbe “Church Association of Salt Lake Stake of Zion,” and by tbat name were incorporated under tbe general law of tbe territory authorizing incorporations for religious, educational, and other purposes. This is not tbe corporation organized under the special act of 1855, and disincorporated by tbe act of Congress of March 8d. Tbe Church Association of tbe Salt Lake Stake of Zion is still in existence, and I am not prepared to say tbat it bad not tbe right to receive such money and property as might be necessary in order to acquire such real estate as might be necessary, whereon to erect houses of worship and parsonages, and for burial grounds, and to receive tbe funds and means necessary to erect such bouses of worship and parsonages, and to improve such burial grounds. Such right is clearly recognized by sections 13, 17 and ‘¿6 of tbe act of Congress of March 3, 1887,
*550In view of some of tbe positions taken and arguments advanced by the majority of the court, and in order that I may be better understood, I will refer to the sections mentioned in connection with section 3 of the act of Congress of July 1, 1862. This last section prohibited any corporation or association for religious purposes from ac-, quiring or holding real estate in any territory of the United States of greater value than $50,000, declared that such real estate acquired or held contrary to such provision should be forfeited and escheated to the United States, and provided that vested rights then existing in real estate should not be impaired thereby. Section 13 of the act of Congress of March 3, 1887, made it the duty of the attorney general to prosecute proceedings to forfeit and escheat to the United States, for the use of common schools, the property of corporations obtained or held in violation of said section 3, but provided that no building, or the grounds appurtenant thereto, held and occupied exclusively for the purpose of the worship of God, or parsonages connected therewith, or burial ground, should be forfeited. This section does not limit the value of real estate acquired after the act of 1862 to $50,000, but exempts from forfeiture all buildings, and the grounds appurtenant thereto, held and occupied exclusively for the purposes of the worship of God, and parsonages connected therewith, and burial grounds, even though exceeding that value.. The seventeenth section of the act of March 3, 1887, annuls the charter of the corporation called the “Church of Jesus Christ of Latter-day Saints,” dissolves the corporation, and requires proceedings to be taken to wind up its affairs, and makes it the duty of the court to make proper decrees for transferring the title to real property held and used by the corporation for places of worship, parsonages, and burial grounds of the description mentioned in sections 13 and 26 of the same act, to the trustees named therein. While this section dissolves the corporation, and annuls its charter, it does not; in terms, forfeit and es-cheat to the United States any property. It does provide for the transfer of-real estate of the description named to trustees mentioned in sections 13 and '26. Section 26 au*551thorizes the authorities of any sect, society, or congregation to bold, through trustees, such real property for houses of worship, parsonages, and burial grounds as may be necessary for the convenient use of the several congregations of such religious sect. To this extent the right is expressly given by this section to hold real estate, and, by implication, to acquire real estate, and to erect houses of worship and parsonages, and to improve burial grounds, and to receive and expend the money or other means necessary to those ends. We cannot assume that the act of March 3, 1887, forfeited and escheated to the United States all the property held by the corporation known as the “Church of Jesus Christ of Datter-day Saints” at the time that act took effect. It only forfeited and escheated such real estate as had been obtained and was held in violation of the act of 1862, and only so much of that as did not consist of buildings, and the grounds appurtenant thereto, held and occupied exclusively for the purposes of the worship of God, and parsonages connected therewith, and burial grounds. Beal property, consisting of houses of worship, parsonages, and the grounds necessary therefor, and burial grounds, such as were necessary for the convenience and use of the several religious congregations and societies of such sect, were not forfeited and escheated to the United States. Such property the seventeenth sec-' tion mentioned, required the court, by decree, to transfer to the trustees of the congregations or societies of such sect Mentioned in section 26. To whom the personal property of the late corporation of the Church of Jesus Christ of Latter-day Saints, owned by it at the time of its dissolution, shall go, must be determined by the final decree. In the case of U. S. v. Church, ante p. 861 the court said: “In deciding this motion, we are not called upon to finally determine the rights of the parties .with respect to the property involved in this case. Such rights will be decided as they ultimately appear; and if the receiver appointed shall claim a right to the _ possession of any property, as receiver, to which third parties also claim a right, the issue will then be determined.” And in my judgment, if such third party in possession claims a right, by a *552superior, title, as in tbis proceeding, the proper remedy to test the right is an appropriate action, not a peremptory order, such as is asked.
Under the facts, as they appear, I am clearly of the opinion that the teceiver should institute the proper action if he wishes to test the right of the Church Association of the Salt Lake Stake of Zion and its trustee to the property in question. Then they would be given their day in court; and have an opportunity to be heard on the facts and the law. Such would be due process of law. I am unable to concur in much of the reasoning of the majority of the court, and in the conclusion reached.