Dissenting Opinion
White, J.It is conceded that the plaintiff-appellees “made out a prima facie case with reference to the legal title to this property.”1 That title was, in fact, conceded before the trial began.2 It is also conceded “that the Appellees are, in fact, the rightful legal successors in interest to the grantees of the deed executed in 1891.”3
The appellees are, by their own description in the captions of their own complaint, pleadings, and briefs “The Trustees of the Evangelical United Brethren Church of Mt. Lebanon.” The 1891 grantees were “Trustees of Mt. Lebanon U. B. Church of Clay County in the State of Indiana.”4 Thus it logically follows that what was in 1891 the “Mt. Lebanon U. B. Church of Clay County” is now the “Evangelical United Brethren Church of Mt. Lebanon”.5
Plaintiff appellees are, and the original grantees were, both merely trustees. It is, I should think, axiomatic that trustees of any organization must perform the duties of their office in conformity to the legally adopted rules of their organization.6 And that is what this lawsuit was all about. Not the *318legal title; it was never in dispute. Only the rules were in dispute.
It was the “claim” of the defendant-appellants (the “Claim” which the trial court held to be “unfounded and without right”) that (1) plaintiff-appellees “hold this legal title subject to all the terms and conditions of the Discipline of the Evangelical United Brethren Denomination, which Discipline, among other things, contains certain provisions and restrictions concerning the use of and the conveyance of said real estate . . .”7 and/or (2) plaintiff-appellees “hold the title as Trustees for the use and benefit of the Evangelical United Brethren Denomination as a whole, and subject to the rules and regulations of said Denomination.”8 If, as the court held, this claim is “unfounded and without right”, the local congregation is left free to regulate and direct the trustees, wholly unhampered by the Discipline (in this respect the “polity”) of the larger denomination. That is precisely the legal effect of the judgment the majority today affirms.
The defendants offered as evidence the “Discipline” of the Evangelical United Brethren Denomination and the same was admitted without objection by the plaintiffs. No evidence was offered by plaintiffs, or received from any source, to the effect that the rules and regulations of the denomination were not those stated in said Discipline. Plaintiffs made a written pre-trial admission that “they are members of the Evangelical United Brethren Church” and offered no evidence that this was not the same denomination. On the contrary, they *319testified on cross-examination to acts of participation by the local church congregation in very recent years in the functions of the denomination. There was other evidence brought out by defendants, both from their own witnesses and by cross-examination of plaintiffs’ witnesses (including plaintiffs themselves) tending to support defendants’ claim that the Mt. Lebanon Church was a part of the Evangelical United Brethren Church denomination and that plaintiffs, as its trustees, were subject to the rules of that denomination. Yet notwithstanding that evidence and in spite of the fact that appellees have failed to point out any contradictory evidence, the trial court made no findings of fact relative to the ultimate facts which such evidence tended to prove.
The trial court apparently adopted the argument made by plaintiffs to the effect that the title was fixed at the time the deed of 1891 was made; that since there was no evidence as to what denomination the Mt. Lebanon Church was a part of at that time, if any,9 the defendants had failed to prove that the plaintiff-trustees held title subject to the rules of the Evangelical United Brethren denomination. This theory is premised on the cryptic reasoning voiced by way of dicta in a concurring opinion in Ind. Annual Conf. v. Lemon (1956), 285 Ind. 163, 172, 131 N. E. 2d 780, as follows:
“However, it would seem that whatever authority the superior Methodist Church may have over this real estate will depend upon what its Church Discipline or constitution and by-laws provided at the time the deeds were executed. It would be a denial of due process for the General Assembly to attempt to divest title by subsequent legislative act, and it naturally follows that a superior church organization could have no greater power than a sovereign Legislature. A deed is generally held to be within the protection of the contract clause against impairment. Edwards v. Jagers (1862), 19 Ind. 407.”
*320And plaintiffs rely on dicta in Doughty v. Herr (1933), 97 Ind. App. 427, 430, 185 N. E. 657, quoted from two Illinois cases, as follows:
“ ‘Where a deed to trustees for the benefit of a church society contains no express declaration of trust for the general body of any church denomination, or for the teaching or practice of any particular religious principles or doctrines of faith, the right to the possession, control, and use of the property is solely in the members of the church society. This conveyance was for the sole benefit of the organizations whose trustees were named as grantees, and the right, title, possession, control, and use of the property were vested solely in them. The deed contained no clause providing for a reverter; therefore the heirs of Lupton had no interest.’ Glader et al. v. Schwinge et al. (1929), 336 Ill. 551, 168 N. E. 658, 600, 66 A.L.R. 172.
“In the instant case the trustees of Union Chappel were elected in 1909 and 1927 and there would be no need for appointment by the court. The above quoted case follows and amplifies an earlier Illinois case which uses this language: ‘Though the grantees in the deeds were not incorporated, the deeds were not void, but all the members of the respective congregations became beneficiaries of the property. Such deeds are solely for the benefit of the congregations whose trustees are named as the grantees, and the right to possession, control, and use of the property is vested solely in them. It may be that these congregations were subject to the discipline of the Reformed Church, but their property was not subject to the control of that church.’ Illinois Classis of Reformed Church in the United States v. Holben, et al. (1919), 286 Ill. 473, 122 N. E. 46, 47.”10
*321The majority opinion in Ind. Annual Conf. v. Lemon, supra, (235 Ind. at 168) counters the dicta of the concurring opinion and distinguishes Doughty v. Herr, supra, (97 Ind. App. 427) on grounds which also bear on the case at bar:
“This case is to be distinguished from Doughty v. Herr (1933), 97 Ind. App 427, 185 N. E. 657, where a deed was made to ‘Trustees of Union Chapel (sic) of Hancock County, in the state of Indiana.’ In that case the deed was made to a particular local church not referred to as a part of a larger church organization. In the case before us the deed was made to a church which was an integral part of the then Methodist Episcopal Church (now Methodist Church). It is also true, where a local church of a larger church organization of faith is dissolved or abandoned, the church property vests in the superior or larger organization of that faith if the Church Discipline, by-laws or regulations so provide. 76 C.J.S., Religious Societies, § 100 pp. 889, 890; Trustees of New Hampshire A. C. Methodist Church v. Methodist Church (1954), 98 N. H. 498, 104 A. 2d 204; Brooks v. Chinn (1951), La. App., 52 So. 2d 583; Board of Trustees v. Rader (1930), 210 Iowa 482, 231 N. W. 329; Hardin et al. v. Starnes et al. (1949), 32 Tenn. App. 66, 221 S. W. 2d 824.”
The Illinois cases quoted in Doughty are not in harmony with the rationale of the majority in Ind. Annual Conference or in later decisions by the Appellate Court, particularly Presbytery of Indianapolis v. First United Presbyterian Church (1968), 143 Ind. App. 72, 238 N. E. 2d 479, 240 N. E. 2d 77, which the majority in the case at bar finds it necessary to say: “To the extent that the Presbytery of Indianapolis case imposed an implied trust and based such imposition upon principles of ecclesiastical law and church doctrine, the same cannot stand in view of the decisions in the Mary Elizabeth Blue Hull case”.11 This then leads the majority to *322the implied conclusion that appellants never could have won this case, no matter what their evidence, because their “position . . . cannot be sustained without reference to ecclesiastical law, church discipline or church doctrine.” The majority apparently believe that Hull holds it to be a violation of the First Amendment to the Constitution of the United States to refer to ecclesiastical or church law or polity to decide church property disputes. I cannot agree.
In my opinion appellants’ position and our opinion in Presbytery of Indianapolis are consistent with Maryland and Virginia Eldership of the Churches of God v. The Church of God at Sharpsburg (1970), 396 U. S. 367, 90 S. Ct. 499, a Per Curiam decision which is the latest pronouncement of the United States Supreme Court, saying:
“In resolving a church property dispute . . . the Maryland Court of Appeals relied upon . . . and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property. 254 Md. 162, 254 A. 2d 162 (1969),. . . . Since . . . the . . . resolution of the dispute involved no inquiry into religious doctrine . . . the appeal is dismissed for want of a substantial federal question.”
Appellants’ position in this case involves no inquiry into religious doctrine, but only into the rules of the denomination; the equivalent of “provisions in the Constitution of the General Eldership”. The same is true of the Presbytery of Indianapolis case which the majority holds unconstitutional. But my constitutional opinions and the majority’s constitutional opinions are irrelevant for two reasons: No constitutional question has been presented by the parties and if one had, we could not decide it. Under Burns IND. ST AT. ANN. §§ 4-214 and 4-217, we would be required to transfer the appeal to the Supreme Court of Indiana.
The factual differences between Presbytery of Indianapolis and the case at bar, which the majority opinion points out, are not sufficient to distinguish the two cases on principle. *323That case should be followed or this appeal should be transferred to the Supreme Court. We have no jurisdiction to refuse to follow it on constitutional grounds. Burns § 4-214.
I do agree with the majority that what they call the “formal title” approach (and which the note in 54 Iowa L. Rev. 899, 907 calls “the ‘formal title’ doctrine”) has many advantages including avoidance of First Amendment questions. But the majority opinion does not make clear to me what the majority understands that doctrine to be. Nor have they told me how it applies to the case at bar or to any case except those in which the legal and equitable titles are stated of record. Where, as here, the record title expresses only the legal title and clearly implies a trust without stating its terms and it is the terms of that implied trust which are in dispute, I fail to see how a “ ‘formal title’ approach” could possibly resolve that dispute.
The majority says “the result . . . sought by the appellees can be justified on neutral principles of property law without reference to ecclesiastical law, church discipline or church doctrine.” But what those “neutral principles” are is never stated. Concerning the result, however, “arbitrary” would be more truly descriptive than “neutral”. For if I understand what the majority holds today it is that when real estate is conveyed to Trustees of a church without any words declaring the terms of the trust, it will arbitrarily be held that the trust is free of any rules of the denomination of which the local church may be a part. This arbitrarily makes congregational churches out of all churches whose property is thus titled. Those denominations whose polity is episcopal, connectional, hierachical, presbyterial or something else other than congregational can hardly be expected to see this as a neutral rule of law.
If my understanding of this dispute (including the trial evidence and the rules of the denomination) is correct, the judgment should be reversed and the cause remanded with *324directions to the trial judge to find all the facts pertinent to the resolution of that dispute, to restate his conclusions of law consistent with the views expressed in Presbytery of Indianapolis v. First United Presbyterian Church (1968), 143 Ind. App. 72, 238 N. E. 2d 479, 240 N. E. 2d 77, and Ind. Annual Conference v. Lemon (1956), 235 Ind. 163, 131 N. E. 2d 780 (majority opinion only) and to render judgment accordingly. On the other hand, if the majority view is correct, this appeal should be transferred to the Supreme Court. If that court sees in this case the same constitutional question which the majority opinion purports to decide, then that court should accept transfer and settle that issue. If it sees no constitutional question, the case should be remanded to us for decision of the nonconstitutional issues presented to us by the parties.
Note. — Reported in 259 N. E. 2d 883.
. Majority opinion, ante, p. 295.
. The mere fact that defendant-appellants’ first paragraph of answer denied all the allegations of the complaint does not negate the practical reality and factual truth of this statement.
. Majority opinion, ante, p. 295.
. The majority opinion quotes the deeds, ante, p. 301.
. If that is not true plaintiff-appellees have no case.
. Which is not to say that acts of trustees not in conformity with such rules may not bind the organization or that persons dealing with the trustees must, at their peril, determine whether such trustees are acting in conformity to such rules. McCrary v. McFarland (1884) 93 *318Ind. 466; Trustees of M.E. Church v. Shulze (1878), 61 Ind. 511; 1 R.S. 1852, ch. 101, § 13, p. 458, being also Burns IND. STAT. ANN. (1960 Rpl.) § 25-1515. This lawsuit is between officers of the organization and, as the issues were framed and tried, involves their rights and powers as between themselves and not as between the trustees and outsiders, as in Doughty v. Herr, cited and discussed post. See note 10.
. Defendant-appellants’ Paragraph II of Answer quoted by the majority, ante, p. 297.
. Defendant-appellants’ Paragraph III of Answer quoted by the majority, ante, p. 298.
. This finding ignores inferences which could be drawn from evidence that over fifty years prior to trial, less than thirty years after the deed was executed, the church and its members were of the United Brethren denomination.
. Even though Doughty v. Herr expressly states that the reasoning of these two Illinois cases is decisive of the dispute in Doughty, it is apparent that much of that reasoning is far removed from what was actually decided in Doughty. The opinion is disorganized and confusing in its recital of the facts and the record, but it was a quiet title action by the “Trustees of Union Chappel of Hancock County” against Myrtle Herr, to whom the church property was conveyed by trustees elected by the quarterly conference although there were duly elected trustees of Union Chappel. The true holding in Doughty is this paragraph beginning on page 429 of 97 Ind. App.:
“There is an attempt here to show that Union Chappel was but a unit in a large governing body and that the conference really had control of all the affairs of the local unit. As to the faith followed, this was probably true. However, this realty was deeded to ‘Trustees *321of Union Chappel of Hancock County’ and it was never by them deeded to anyone and they must be held to be the owner.”
What was thus decided in Doughty was never an issue in the case at bar. Title in the plaintiff-trustees was conceded from the beginning.
. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658. Quotation from majority opinion, ante p. 304.