The opinion of the court was delivered by
Smith, J. :
There was some conflict in the testimony as to whether the congregation, at the time the property was obtained, inclined toward the doctrinal teachings of the Iowa synod, yet, there being considerable testimony tending to that effect, we cannot disturb the conclusion reached by the court below that such was the fact. The controlling question in the case is whether or not the decree ordering a division or sale of the property is authorized by the rules of equity applicable to such cases. Plaintiffs in error refer to the constitution adopted in 1885, and insist that by the terms of articles 8, 13 and 15 the rule of the majority is recognized by the church organization and is equally binding upon the courts. These articles read:
“Article 8. Every member is obliged to submit to each and every word of God, and in case where the Word of God allows us freedom he is obliged to yield to the majority, and to sign this constitution.”
“Article 13. Everything bought by or donated to the congregation is the property of the congregation. [77]*77Whosoever is excluded loses all claim to the property.”
“Article 15. The services shall be conducted in the German language, and as long as five members adhere to this constitution the property shall be theirs.”
The obligation resting on the members by article 8 to yield to the majority is invoked against the plaintiffs below, defendants in error here. The latter, until January 1, 1895, were greater in numbers. At that time the admission of those persons known as the Bender congregation, adherents of the Missouri synod, gave the faction of plaintiffs in errqr a majority. At that time fourteen persons belonging to what was known as the Bender-schoolhouse congregation, holding the faith of the Missouri synod, were admitted to membership without previous notice, and in violation of a rule adhered to' by ministers of the Iowa synod. The chairman of the meeting at which said persons were admitted was not an elder, and consequently acted in violation of the spirit of article 10 of the by-laws.
The defendants in error, shortly before the commencement of the action, at a time when there was no minister in charge, solicited the president of the Iowa synod to furnish a preacher. Reverend Mueller was sent from the Iowa synod in pursuance of that request. The faction of plaintiffs in error was in control of the church buildings, and refused to permit Reverend Mueller and his followers, adherents of the Iowa synod, to use the same for religious services. About this time the majority procured the services of Reverend Kleinhans, of the Missouri synod, against the wishes of the minority, and installed him as pastor of the church. It is probable that the methods employed by the plaintiffs in error, by which they se[78]*78cured a voting majority, would have been condemned by a supervising tribunal of the church, had one existed to review the proceedings. From the date of the adoption of the constitution, in 1885, to and including the year 1894, during which time the real estate upon which the church was built was donated, ministers from the synod of Iowa acted as pastors of the congregation, and during this time voluntary contributions were solicited and received sufficient in amount to build the meeting-house in controversy.
Under article 15 of the constitution, as long as five members adhered thereto the property was to be theirs. Both factions, being about equal in number, claimed to have adhered to the constitution, and the court found that neither party had forfeited any rights in the property. Neither faction, then, having forfeited any rights, and there being irreconcilable differences between them, do the rules of equity require that the property should be divided? It will be noticed that this church is independent. There was no ecclesiastical tribunal superior in authority to which controversies concerning faith and doctrine could be submitted for settlement. If such higher authority existed, courts would remand the adjustment of such difficulties to the church tribunal, where they rightfully belong. Here, no member of the congregation having forfeited any property rights, and the church being disrupted and torn with internal strife, seemingly irrepressible, what is the equitable thing to be done?
It would be manifestly unfair, in the face of the findings of the court, to hold that the faction represented by the plaintiffs in error may keep possession of the church property and pex*petually dedicate it to the teaching and advancement of the doctrines of the [79]*79Missouri synod when the donors of the land on which the church was built were adherents of the Iowa synod, and the minister in charge at that time, at whose solicitation funds were contributed for the erection of the building, was teaching the same belief. (Baker v. Ducker, 79 Cal. 365, 21 Pac. 764; Wheelock v. First Presb. Church, 119 Cal. 477, 51 Pac. 841; Attorney General v. Pearson, 3 Merrivale, 353.) The doctrines of the Missouri and Iowa synods are fundamentally different. The trial court found :
“58. There is á fundamental difference between the doctrines and tenets of faith and usages of the synod composing Missouri, Ohio, and other states, and that of the faith and doctrine of the synod of Iowa and other states, of the Evangelical Lutheran sect; both, however, claiming to be of the Evangelical Lutheran sect and denomination, the fundamental difference being with reference to election, foreordination, and as to what is the Antichrist, and as to the teachings with reference to the millenium. These differences are recognized by their respective synods as fundamental differences and teachings.”
If the plaintiffs below, among whom were the donors of the land aforesaid, were here asserting that the use of the church property should be devoted to the dissemination only of that faith held by the Iowa' synod, we would be inclined, under the findings, to sustain their claim. There has, however, been a decree entered in their favor at their suit which they insist should be upheld, viz., that the property be sold and the proceeds divided among the congregation. Unimportant as the differences in faith between the two factions of this church may seem to others, they appear irreconcilable and permanent so far as the contending factions are concerned, each side regarding its creed as the true one, vitally essential, [80]*80and adherence thereto necessary to the attainment of eternal salvation.
The plaintiffs in error insist that the incorporation of the church is an insuperable obstacle in the way of the division of its property among the members. We cannot agree with them in this contention. In Winebrenner et al. v. Colder et al., 43 Pa. St. 249, 252, it is said : “ The legislature never means, by granting or allowing such charters, to change the ecclesiastical status of the congregation, but only to afford them a more advantageous civil status." ( See, also, Wheelock v. First Presb. Church, supra.) In Brunnenmyer et al. v. Buhre et al., 32 Ill. 184, 190, we find the following:
“ By the election which organized the corporation, the title became vested in the trustees and their successors, for the use of the trust,, as completely as if the use had been declared by deed. ... A trust of this character is not distinguishable in this from any other trust over which courts of chancery exercise a supervisory power."
In the case of Ferraria et al.
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The opinion of the court was delivered by
Smith, J. :
There was some conflict in the testimony as to whether the congregation, at the time the property was obtained, inclined toward the doctrinal teachings of the Iowa synod, yet, there being considerable testimony tending to that effect, we cannot disturb the conclusion reached by the court below that such was the fact. The controlling question in the case is whether or not the decree ordering a division or sale of the property is authorized by the rules of equity applicable to such cases. Plaintiffs in error refer to the constitution adopted in 1885, and insist that by the terms of articles 8, 13 and 15 the rule of the majority is recognized by the church organization and is equally binding upon the courts. These articles read:
“Article 8. Every member is obliged to submit to each and every word of God, and in case where the Word of God allows us freedom he is obliged to yield to the majority, and to sign this constitution.”
“Article 13. Everything bought by or donated to the congregation is the property of the congregation. [77]*77Whosoever is excluded loses all claim to the property.”
“Article 15. The services shall be conducted in the German language, and as long as five members adhere to this constitution the property shall be theirs.”
The obligation resting on the members by article 8 to yield to the majority is invoked against the plaintiffs below, defendants in error here. The latter, until January 1, 1895, were greater in numbers. At that time the admission of those persons known as the Bender congregation, adherents of the Missouri synod, gave the faction of plaintiffs in errqr a majority. At that time fourteen persons belonging to what was known as the Bender-schoolhouse congregation, holding the faith of the Missouri synod, were admitted to membership without previous notice, and in violation of a rule adhered to' by ministers of the Iowa synod. The chairman of the meeting at which said persons were admitted was not an elder, and consequently acted in violation of the spirit of article 10 of the by-laws.
The defendants in error, shortly before the commencement of the action, at a time when there was no minister in charge, solicited the president of the Iowa synod to furnish a preacher. Reverend Mueller was sent from the Iowa synod in pursuance of that request. The faction of plaintiffs in error was in control of the church buildings, and refused to permit Reverend Mueller and his followers, adherents of the Iowa synod, to use the same for religious services. About this time the majority procured the services of Reverend Kleinhans, of the Missouri synod, against the wishes of the minority, and installed him as pastor of the church. It is probable that the methods employed by the plaintiffs in error, by which they se[78]*78cured a voting majority, would have been condemned by a supervising tribunal of the church, had one existed to review the proceedings. From the date of the adoption of the constitution, in 1885, to and including the year 1894, during which time the real estate upon which the church was built was donated, ministers from the synod of Iowa acted as pastors of the congregation, and during this time voluntary contributions were solicited and received sufficient in amount to build the meeting-house in controversy.
Under article 15 of the constitution, as long as five members adhered thereto the property was to be theirs. Both factions, being about equal in number, claimed to have adhered to the constitution, and the court found that neither party had forfeited any rights in the property. Neither faction, then, having forfeited any rights, and there being irreconcilable differences between them, do the rules of equity require that the property should be divided? It will be noticed that this church is independent. There was no ecclesiastical tribunal superior in authority to which controversies concerning faith and doctrine could be submitted for settlement. If such higher authority existed, courts would remand the adjustment of such difficulties to the church tribunal, where they rightfully belong. Here, no member of the congregation having forfeited any property rights, and the church being disrupted and torn with internal strife, seemingly irrepressible, what is the equitable thing to be done?
It would be manifestly unfair, in the face of the findings of the court, to hold that the faction represented by the plaintiffs in error may keep possession of the church property and pex*petually dedicate it to the teaching and advancement of the doctrines of the [79]*79Missouri synod when the donors of the land on which the church was built were adherents of the Iowa synod, and the minister in charge at that time, at whose solicitation funds were contributed for the erection of the building, was teaching the same belief. (Baker v. Ducker, 79 Cal. 365, 21 Pac. 764; Wheelock v. First Presb. Church, 119 Cal. 477, 51 Pac. 841; Attorney General v. Pearson, 3 Merrivale, 353.) The doctrines of the Missouri and Iowa synods are fundamentally different. The trial court found :
“58. There is á fundamental difference between the doctrines and tenets of faith and usages of the synod composing Missouri, Ohio, and other states, and that of the faith and doctrine of the synod of Iowa and other states, of the Evangelical Lutheran sect; both, however, claiming to be of the Evangelical Lutheran sect and denomination, the fundamental difference being with reference to election, foreordination, and as to what is the Antichrist, and as to the teachings with reference to the millenium. These differences are recognized by their respective synods as fundamental differences and teachings.”
If the plaintiffs below, among whom were the donors of the land aforesaid, were here asserting that the use of the church property should be devoted to the dissemination only of that faith held by the Iowa' synod, we would be inclined, under the findings, to sustain their claim. There has, however, been a decree entered in their favor at their suit which they insist should be upheld, viz., that the property be sold and the proceeds divided among the congregation. Unimportant as the differences in faith between the two factions of this church may seem to others, they appear irreconcilable and permanent so far as the contending factions are concerned, each side regarding its creed as the true one, vitally essential, [80]*80and adherence thereto necessary to the attainment of eternal salvation.
The plaintiffs in error insist that the incorporation of the church is an insuperable obstacle in the way of the division of its property among the members. We cannot agree with them in this contention. In Winebrenner et al. v. Colder et al., 43 Pa. St. 249, 252, it is said : “ The legislature never means, by granting or allowing such charters, to change the ecclesiastical status of the congregation, but only to afford them a more advantageous civil status." ( See, also, Wheelock v. First Presb. Church, supra.) In Brunnenmyer et al. v. Buhre et al., 32 Ill. 184, 190, we find the following:
“ By the election which organized the corporation, the title became vested in the trustees and their successors, for the use of the trust,, as completely as if the use had been declared by deed. ... A trust of this character is not distinguishable in this from any other trust over which courts of chancery exercise a supervisory power."
In the case of Ferraria et al. v. Vasconcellos et al., 31 Ill. 25, 56, which was a case quite similar to the one at bar, Chief Justice Catón used this language:
“In a case thus peculiar in its facts, differing as it does from all others which we find reported, where neither party has incurred a forfeiture, we are to apply the rules of equity and a sound morality. This can only be done by a division of the property, where the members of the church have thus become divided in numbers nearly equal.
“We would not be understood that such a division should be made where one party or the other consisted of a single member, or but a very few members, for then the minority might be considered as acting obstinately or perversely ; but where, as in this case, the numbers are nearly equal, there is propriety in recognizing the rights of each." (See, also, Niccolls et al. v. Rugg et al., 47 Ill. 47.) [81]*81The court below adjudged the sale of the real estate and all the personal property, to be sold as upon execution, the proceeds to be first applied to the payment of costs, and the residue to be divided equally between the plaintiff and defendant factions of said congregation. In order that the property may not be diverted from the religious purposes for which it has been dedicated, but be preserved for church purposes, as expressed in one of the deeds, we think the privilege of purchasing should be reserved to the two factions in the church, and that whichever, upon the sale, offers to pay the higher price, should be entitled to exclusive ownership. This was done in the case of Niccolls et al. v. Rugg et al., supra, and was considered a proper and equitable method of disposing óf the property. If neither sees fit to purchase, then the sale should be opened to all bidders.
The judgment of the court of’appeals and of the district court will be affirmed in all respects, except that it will be modified in accordance with the views expressed herein so far as relates to the order of sale of the property.