Lochrane, C. J.
It appears from the record in this case that on the 24th September, 1845, the trustees of the Methodist Episcopal Church, of Savannah, made a deed to the trustees of the Methodist Episcopal Church, South, to a certain lot of land for the consideration of ...... hundred dollars in trust, upon certain conditions and for certain uses therein specified ; that such trustees were to erect and build upon the land conveyed a house of worship for the use of the colored members of the Methodist Episcopal Church, South, according to the rules and discipline which, from time to time, may have been adopted by the preachers and ministers of said church, at their General Conferences. The deed further provides for the appointment of trustees to fill vacancies arising from any cause; and, by virtue of this conveyance, such trustees went into possession and erected a house of worship for the purposes expressed, and called it Andrew Chapel. In the quiet administration of its spiritual affairs, it remained undisturbed and within the protection of the General Conferences of the Methodist Episcopal Church, South, until the capture of the city of Savannah by the Federal forces. In the convulsion of public sentiment consequent upon the fall of the city, several of the members of Andrew Chapel joined the African Methodist Episcopal Church, and, in this condition, the Trus[568]*568tees of the Methodist Episcopal Church, South, permitted the occupancy of the church by them for the purposes of public worship, which was continued by the members of the new organization or African Methodist Episcopal Church. It also appears that Mr. Walker offered, in writing, to let them have this use, to which no reply was made, and in December, 1865, a memorial was addressed by the parties plaintiffs in error to the Georgia Conference, stating that they had associated themselves with the African Methodist Episcopal Church, and requesting that Andrew Chapel might be ceded to them. To this, as well as several similar applications, the reply of the Conference, by its minutes, is found in the resolution, “that the titles of the houses of worship used by colored charges are vested in the trustees for the use of colored members of the Methodist Episcopal Church, South, so that the Georgia Conference has no power to convey the property to any other organization whatever ; ” and concludes by recommending that the colored people who were lately members of our churches be permitted to use them temporarily for worship.
It also appears that in September, 1868, a notice to quit was served upon the parties, and responded to in January, 1869, declining to give up the possession until compelled by law.
In this condition of affairs, upon the 10th February, 1869, the Chairman of the Board of Trustees of Andrew Chapel made his affidavit, under the 4005th section of the Revised Code, praying process to dispossess the parties, in terms of the law, to which a counter-affidavit, under section 4007, was made, setting up that they did not hold the property in dispute by lease or rent, or at will, or by sufferance from the persons named, to-wit: The Trustees of the Methodist Episcopal Church, South.
Upon the issue joined on these proceedings, the case came on for a hearing, and the plaintiffs introduced the deed referred to in evidence, and the proof from which the recital [569]*569of facts have been stated; and the jury found the plaintiffs were entitled to the possession of the premises in dispute, upon which a judgment was entered. A new trial was moved upon thirteen grounds, which was overruled by the Court and excepted to, and now comes before this Court by writ of error.
The importance of this case may properly invoke, at our hands, a more than summary disposal of the questions involved, inasmuch as it involves the legal rights of occupancy to premises consecrated to the services and ordinances of religion, and the relative relations of those who, while clothed with the civil rights of trustees, also appear in such character, with the investiture of more than mere civil duty, as representatives of those who claim to be the rightful cestui que trusts, as colored members of the Methodist Episcopal Church, South, to their house of worship.
1. The first ground of error alleged, is the admission of the testimony of Mr. Rogers. This objection arises upon two grounds: First, in permitting him to prove the notice by parol, and not producing the original in writing; and, second, that its service on the pastor in charge was insufficient. We do not think that the Court erred in either of these particulars. Mr. Rogers stated that he was secretary of the board of trustees, and that he had received the communication from the chairman, and sent a copy to the church, and served notice to quit on the pastor in charge; he had hunted for the original and could not find it. Why, was this not sufficient to have let in the evidence ? Under the rulings of this Court, at the present term, we have held this to be sufficient; and, further, under section 3714 of the Code, the fact of the primary evidence not being accessible to the diligence of the party, is made to the Court, who will hear the party himself and adjudge the question; and this Court will not interfere with his judgment, except the discretion is abused. In this case, the oath of the witness, that “ he had hunted for the original paper and, after diligent search, failed to find [570]*570it,” was all that could. be required; it was not accessible to the diligence of the party and the secondary evidence was properly admitted.
2. Was the service upon the preacher in charge a sufficient notice? In this case, the church was occupied by a congregation, not in the light of individuals, but as an organization. The pastor, without going into any learned disquisitions of the duties of his office, stands, encircled by history, with special honors and privileges, associated with his sacerdotal duties. But, from the beginning, down to the last tragedy of Jewish history, we find little to enlighten a judicial opinion. In this country, church property vests, generally, in trustees, and not in the pastor. This is true, particularly of the Methodist churches, whose pastors are scattered and remain in only temporary positions; and, where there are trustees of churches, we deem them the proper parties to bring suit, or to defend them, or to serve with process or papers. In this case, the evidence is, that notice was given to both, and the answer of Godfrey is the admission of receiving such notice, being evidence that it had been known. And if it appears as a fact, in the case that they had the notice, we deem this sufficient.
3. The next ground of error is, that the Court erred in admitting a printed copy of the Minutes of the Georgia Conference held in 1866. The evidence was received upon the statement, under oath, of the Assistant Secretary of the Conference, who says the communication came under his personal supervision; that these are the minutes, etc., and that, as presiding elder, he went down and read them to the colored people. We are of opinion that the testimony of the secretary was sufficient to have let the proceedings on the minutes in evidence, for it was the very strongest testimony which could have been offered. The personal information of the secretary was stated, and that the communication was not preserved. In matters which appear, by properly organized bodies of men, upon their minutes, the evidence of the sec[571]
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Lochrane, C. J.
It appears from the record in this case that on the 24th September, 1845, the trustees of the Methodist Episcopal Church, of Savannah, made a deed to the trustees of the Methodist Episcopal Church, South, to a certain lot of land for the consideration of ...... hundred dollars in trust, upon certain conditions and for certain uses therein specified ; that such trustees were to erect and build upon the land conveyed a house of worship for the use of the colored members of the Methodist Episcopal Church, South, according to the rules and discipline which, from time to time, may have been adopted by the preachers and ministers of said church, at their General Conferences. The deed further provides for the appointment of trustees to fill vacancies arising from any cause; and, by virtue of this conveyance, such trustees went into possession and erected a house of worship for the purposes expressed, and called it Andrew Chapel. In the quiet administration of its spiritual affairs, it remained undisturbed and within the protection of the General Conferences of the Methodist Episcopal Church, South, until the capture of the city of Savannah by the Federal forces. In the convulsion of public sentiment consequent upon the fall of the city, several of the members of Andrew Chapel joined the African Methodist Episcopal Church, and, in this condition, the Trus[568]*568tees of the Methodist Episcopal Church, South, permitted the occupancy of the church by them for the purposes of public worship, which was continued by the members of the new organization or African Methodist Episcopal Church. It also appears that Mr. Walker offered, in writing, to let them have this use, to which no reply was made, and in December, 1865, a memorial was addressed by the parties plaintiffs in error to the Georgia Conference, stating that they had associated themselves with the African Methodist Episcopal Church, and requesting that Andrew Chapel might be ceded to them. To this, as well as several similar applications, the reply of the Conference, by its minutes, is found in the resolution, “that the titles of the houses of worship used by colored charges are vested in the trustees for the use of colored members of the Methodist Episcopal Church, South, so that the Georgia Conference has no power to convey the property to any other organization whatever ; ” and concludes by recommending that the colored people who were lately members of our churches be permitted to use them temporarily for worship.
It also appears that in September, 1868, a notice to quit was served upon the parties, and responded to in January, 1869, declining to give up the possession until compelled by law.
In this condition of affairs, upon the 10th February, 1869, the Chairman of the Board of Trustees of Andrew Chapel made his affidavit, under the 4005th section of the Revised Code, praying process to dispossess the parties, in terms of the law, to which a counter-affidavit, under section 4007, was made, setting up that they did not hold the property in dispute by lease or rent, or at will, or by sufferance from the persons named, to-wit: The Trustees of the Methodist Episcopal Church, South.
Upon the issue joined on these proceedings, the case came on for a hearing, and the plaintiffs introduced the deed referred to in evidence, and the proof from which the recital [569]*569of facts have been stated; and the jury found the plaintiffs were entitled to the possession of the premises in dispute, upon which a judgment was entered. A new trial was moved upon thirteen grounds, which was overruled by the Court and excepted to, and now comes before this Court by writ of error.
The importance of this case may properly invoke, at our hands, a more than summary disposal of the questions involved, inasmuch as it involves the legal rights of occupancy to premises consecrated to the services and ordinances of religion, and the relative relations of those who, while clothed with the civil rights of trustees, also appear in such character, with the investiture of more than mere civil duty, as representatives of those who claim to be the rightful cestui que trusts, as colored members of the Methodist Episcopal Church, South, to their house of worship.
1. The first ground of error alleged, is the admission of the testimony of Mr. Rogers. This objection arises upon two grounds: First, in permitting him to prove the notice by parol, and not producing the original in writing; and, second, that its service on the pastor in charge was insufficient. We do not think that the Court erred in either of these particulars. Mr. Rogers stated that he was secretary of the board of trustees, and that he had received the communication from the chairman, and sent a copy to the church, and served notice to quit on the pastor in charge; he had hunted for the original and could not find it. Why, was this not sufficient to have let in the evidence ? Under the rulings of this Court, at the present term, we have held this to be sufficient; and, further, under section 3714 of the Code, the fact of the primary evidence not being accessible to the diligence of the party, is made to the Court, who will hear the party himself and adjudge the question; and this Court will not interfere with his judgment, except the discretion is abused. In this case, the oath of the witness, that “ he had hunted for the original paper and, after diligent search, failed to find [570]*570it,” was all that could. be required; it was not accessible to the diligence of the party and the secondary evidence was properly admitted.
2. Was the service upon the preacher in charge a sufficient notice? In this case, the church was occupied by a congregation, not in the light of individuals, but as an organization. The pastor, without going into any learned disquisitions of the duties of his office, stands, encircled by history, with special honors and privileges, associated with his sacerdotal duties. But, from the beginning, down to the last tragedy of Jewish history, we find little to enlighten a judicial opinion. In this country, church property vests, generally, in trustees, and not in the pastor. This is true, particularly of the Methodist churches, whose pastors are scattered and remain in only temporary positions; and, where there are trustees of churches, we deem them the proper parties to bring suit, or to defend them, or to serve with process or papers. In this case, the evidence is, that notice was given to both, and the answer of Godfrey is the admission of receiving such notice, being evidence that it had been known. And if it appears as a fact, in the case that they had the notice, we deem this sufficient.
3. The next ground of error is, that the Court erred in admitting a printed copy of the Minutes of the Georgia Conference held in 1866. The evidence was received upon the statement, under oath, of the Assistant Secretary of the Conference, who says the communication came under his personal supervision; that these are the minutes, etc., and that, as presiding elder, he went down and read them to the colored people. We are of opinion that the testimony of the secretary was sufficient to have let the proceedings on the minutes in evidence, for it was the very strongest testimony which could have been offered. The personal information of the secretary was stated, and that the communication was not preserved. In matters which appear, by properly organized bodies of men, upon their minutes, the evidence of the sec[571]*571retary that they are the minutes is sufficient legal testimony to authorize their admission, in cases where such proceedings are required as evidence.
4. The third error assigned is, that the Court erred in holding the chairman of the board of trustees was the competent party to make the affidavit. The section 4005th of the Code says the affidavit may be made by the owner, his agent or attorney in fact or attorney at law. We do not deem it necessary to enlarge upon this question, as the statute is comprehensive, and the chairman of the board of trustees was competent to make the affidavit.
5. The fourth ground is, that the Court erred in charging the jury, “you must look and see if the defendant has made proof that the members are the members of the Methodist Episcopal Church, South.”
The fifth ground is, his charge, “If you find the defendants have not made this proof, the plaintiff is entitled to recover.” Both these assignments of error resolve themselves into the discussion of the legal question controlling this case, so far as the merits of recovery are concerned; and the judgment of this Court upon them will dispose of the seventh and eighth grounds taken in the motion for a new trial.
Was the charge of the Court error in placing the rights of defendants to the property upon the proof they were members of the Methodist Episcopal Church, South? For the-whole question of right hangs on this point. The argument of counsel for plaintiff in error is, “ that this deed was made-to the trustees for the use of the colored members of the-Methodist Episcopal Church, South; that, at the time the-deed was made, they were incapable of holding property;, that that incapacity being now removed, as they were originally the beneficiaries and had the equitable interest, as the-reason of the trust is at end, the trust is extinguished, and. the legal title goes over to them.”
The application of such principles does not come within-[572]*572the reach of this case. This deed must be construed in the light of the law, and as it was made in trust for the use of the members of the Methodist Episcopal Church, South, just as soon as the members dissevered this connection, which was perfected by their uniting with another organization, that instant they surrendered all claim to the use or occupancy of the church, except at the will or sufferance of the legal owners.
It has been argued that they are still members of the Methodist Episcopal Church, and the prefix of “African” to the name does not change their status; that the purpose of the trust was to provide a house of worship wherein to “expound God’s holy word;” and that they have not refused to permit preachers of the Methodist Episcopal Church, South, to occupy the pulpit; and this is brought to bear in construing the condition of the deed.
We do not propose to discuss the differences of these church organizations outside what appears upon the record.
The record shows that they had associated themselves with the African Methodist Episcopal Church, and asked that Andrew Chapel be ceded to them. Here is a distinct admission of their having gone into another church organization. The fact is presented by themselves; and the response of the Conference recognizes this fact. “This property,” says the Conference, “ is vested in trustees for the use of colored members of the Methodist Episcopal Church, South, and we have no right to convey it to any other organization whatever,” and concludes by saying, “ that the colored people, who were lately members of our church,” etc. Here is the admission of the one and the recognition of the other, that these two parties are not in the church, or members of the Methodist Episcopal Church, South.
If they are not, in what did the Court err in charging the jury ? If they are not, the plaintiffs had the right to recover. The title to this property was in the plaintiffs. The deed was in evidence, and the defendants did not shew any [573]*573title to themselves. And except they were members of the Methodist Episcopal Church, South, they were not cestui que trusts under the deed, and had no legal right to the house of worship, no more than a congregation of colored Baptists.
The fact that they were original members gave them no legal rights except they remained members. The fact .that they were colored had nothing to do with the question. The trustees of a white congregation, under the same facts, would recover. The whole question is as to the church organization entitled to the church property, and the answer is, from all law and authority, that it is the one that holds the title. The question is too plain to multiply words. When the members of the Methodist Episcopal Church, South, carried their membership elsewhere, they could not carry the house of worship, dedicated to the use of others as beneficiaries, with them; and, consequently, we think the Court charged the jury correctly upon this legal question.
6. We now come to the only question of embarrassment in this case, and that may be found in the sixth ground of error, and arises upon the charge of the Court, applied to the facts of the case, whether the relation of landlord and tenant existed, so as to authorize the proceeding instituted for the recovery of the possession. The Code, section 4005, applies “ in all cases when lands or tenements shall be held and occupied by any tenant-at-will or sufferance, whether under contract of rent or not.” Is this case within the provisions of that section ? There is no pretence set-up that the parties are under contract for rent or by express agreement for any definite time, or by contract at all. So that the question is narrowed down to one single view. Are they tenants-at-sufferance? Our statute is broad, and the remedy it lays down summary. These defendants have not assented to anything by words, they have seemingly reserved the question of determination for the Courts. But we must take this whole case, with the acts of the parties, to determine the legal effect of their occupancy. It is beyond doubt that they [574]*574have no legal right to the possession, and that they are in possession without warrant of law.
Let us see, briefly, how they are in possession. In 1864 or 1865, they were members of the- Methodist Episcopal Church, South, and were lawfully in possession. Their original possession was purely a legal one. Now, as soon as they ceased to be members of this organization, their right of possession ceased. They were out of the church, and out of the rights of the membership of the church, by their own act. And upon what terms did they remain in ? It was not by legal right; nor was it by contract. Was it by sufferance of the legal owners? A.party may be a tenant without being under a contract for rent. At the common law, a tenant-at-suflerance is one who comes into possession by a lawful demise and, after his term is ended, continues wrongfully and holds over. How, by the principles of this defininition, we are satisfied that the defendants below were members of the Methodist Episcopal Church, South, lawfully enjoying the possession of this church. It was not the subject matter of rent, but when they became members of the African Methodist Episcopal Church, their relation changed, .and by notice to them they went into the occupancy at sufferance of the rightful owners. They were not trespassers, for they had permission; nor were they owners for they had no shadow of title. They were not tenants-at-will, for they were not in under contract. We think they were tenants-at-sufferance, liable to be turned out without notice, when the lawful owners demanded possession. And when they refused, this section of the Code was properly invoked to remove them from the possession.
Judgment affirmed.