(dissenting): I am unable to agree with the majority of the Court as to the nature of this action. The complaint, after reciting certain church regulations, alleges that the defendants “entered forcibly into said church or chapel and took possession thereof, and that said parties have forcibly withheld possession thereof ever since.” Their prayer is, among other things, “ that *779they be let into possession of the property ” and “ that the defendants be restrained and enjoined from interfering in any way with the plaintiffs’ possession and use of said property.” The defendants deny the material allegations of the complaint. Much evidence was introduced, including the Carson deed to certain trustees, in trust for “ the religions congregation known as the African Methodist Church in the city aforesaid (Charlotte) exclusively.”
The first issue submitted was, “ Are the plaintiffs ...as trustees of the African Methodist Episcopal Zion Church, the legal owners and entitled to the possession of the premises described in the complaint?” After verdict the judgment was “ that plaintiffs are the legal owners and lawfully entitled to the possession of the premises in dispute,” and a writ of possession to put plaintiffs in possession is ordered to issue, and judgment against defendants for cost and damages.
I am persuaded that this is an action of ejectment, and that the purpose of the parties was to try the title of the church lot under the Carson deed. After unfriendly'and bitter feelings arose between the parties, it was agreed by them and their counsel that, in the interest of peace and orderly proceeding, the sheriff of the county should take possession pending litigation. This in no way affects the gist of the action.
I think errors were committed in the course of the trial, materially affecting the verdict of the jury, and that a new trial ought to be granted. I deem it unnecessary to discuss the merits of the controversy, in its present complicated condition, as no new trial is granted by the Court.