BROWN, President.
This court adopts much of the well considered opinion of the circuit court, rejecting such parts as are not approved.
The court is of opinion that under the 9th section of the Code of 1860, p. 412, upon which this motion is founded, reasonable notice of the application is all that is required; [319] the defendants below having appeared by counsel on the 11th of September, when the motion was first called and the notice proved, and having asked and obtained a continuance of the case until the 13th, without offering any objection to the notice, ought therefore to be considered as waiving all objection to the notice, even if otherwise insufficient. The trial of the motion on the day selected by the defendants, the number of counsel, both legal and clerical, who wrere permitted to appear in their defence, and above all, the admission of all the evidence, whether oral or documentary, which can be supposed to have aúy bearing upon the case, preclude all idea that any prejudice could have resulted to the defendants, either from the character of the notice, or from a trial thereof at that term.
The court is further of opinion that there is nothing in the objection that the plaintiffs in this case were bound to proceed by bill in chancery instead of motion. The removal or appointment of trustees is an old and well established branch of equity jurisprudence, which required no statutory enactment to warrant the institution of such a suit, and the court cannot presume that by the 9th see. of chap. 78 of the Code of 1860, the legislature simply intended to authorize a proceeding under the statute, which was in force without it. In the opinion of the court, the object of that statute was to provide a summary remedy upon motion, by which, at the instance of the proper authorities of the congregation, and in the exercise of a sound discretion by the court, trustees might be removed or appointed upon reasonable notice, without the necessity or expense of a regular suit.
The court is further of opinion that it is clearly shown by the evidence that this motion was made at the instance, and upon the application of the proper authorities of the church at Lewisbnrg, and that it was necessary to the proper exercise and enjoyment of their ecclesiastical as well as legal rights in the said church.
The court is further of opinion that by the deed of February 5th, 1851, the legal title to the church in controversy became vested in trustees for the use and benefit of the con[320] gregation at Lewisburg in connection with the Methodist Episcopal Church of the United States; and that, until legally divested in some way, it must continue to be held as a trust for the use and benefit of the said church so long as it continues to have existence; and that if at any time it should cease to exist entirely, and thus the pui’pose for which the property was conveyed became completely frustrated, that the property in that ease would constitute a resulting trust in equity, and revert back to the original donor or his heirs. See 2 Story’s Eq., §§ 1175,1196,1200; Supplement to U. S. Dig. (1847), p.' 436, § 308; 2 Story’s Eq., § 1191, and note, § 1192 Id.
The court is further of opinion that a charity given for a particular purpose cannot be altered or diverted to any other. 2 Story, § 1175. That an organized church cannot be divested of its property by even a majority of its members who enter into a new organization, although they adopt the same name, provided the old organization still exists; and that when seceders from an organized church enter into such new organization, they forfeit all claim to any interest in the former church, and lose all identity with it. Harper vs. Straws, 14 B. Monroe, 48.
The court is further of the opinion that by a resolution of the New York general conference in 1844, a plan of separation was agreed upon, which, if strictly complied with on the part of the church south, would have taken this case out of the operation of the principle of Harper vs. Straws, and brought it clearly within the principle of Brooke vs. Shacklett, 13 Gratt., 307, which was cited and relied upon with so much confidence.
But the court is furthermore of opinion, that upon the facts shown as evidence, the case of Brooke vs. Shacklett is an express authority against the appellants, and establishes the right of the appellees to the church in controversy. That case simply decided that in the case of a border conference, such as this is, that a separation of the churches pursuant to the plan of 1844, that is, by a vote of the majority of the society, station, or conference within which the property [321] lies, not only established a separate ecclesiastical institution in the church thus separating, but carried with it all the church domain within the limits of such conference, station, or society. That the vote of such majority, whether adhering to the original church, or joining the church south, not only determined the particular ecclesiastical complexion, but the future rights of property in the local church.
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BROWN, President.
This court adopts much of the well considered opinion of the circuit court, rejecting such parts as are not approved.
The court is of opinion that under the 9th section of the Code of 1860, p. 412, upon which this motion is founded, reasonable notice of the application is all that is required; [319] the defendants below having appeared by counsel on the 11th of September, when the motion was first called and the notice proved, and having asked and obtained a continuance of the case until the 13th, without offering any objection to the notice, ought therefore to be considered as waiving all objection to the notice, even if otherwise insufficient. The trial of the motion on the day selected by the defendants, the number of counsel, both legal and clerical, who wrere permitted to appear in their defence, and above all, the admission of all the evidence, whether oral or documentary, which can be supposed to have aúy bearing upon the case, preclude all idea that any prejudice could have resulted to the defendants, either from the character of the notice, or from a trial thereof at that term.
The court is further of opinion that there is nothing in the objection that the plaintiffs in this case were bound to proceed by bill in chancery instead of motion. The removal or appointment of trustees is an old and well established branch of equity jurisprudence, which required no statutory enactment to warrant the institution of such a suit, and the court cannot presume that by the 9th see. of chap. 78 of the Code of 1860, the legislature simply intended to authorize a proceeding under the statute, which was in force without it. In the opinion of the court, the object of that statute was to provide a summary remedy upon motion, by which, at the instance of the proper authorities of the congregation, and in the exercise of a sound discretion by the court, trustees might be removed or appointed upon reasonable notice, without the necessity or expense of a regular suit.
The court is further of opinion that it is clearly shown by the evidence that this motion was made at the instance, and upon the application of the proper authorities of the church at Lewisbnrg, and that it was necessary to the proper exercise and enjoyment of their ecclesiastical as well as legal rights in the said church.
The court is further of opinion that by the deed of February 5th, 1851, the legal title to the church in controversy became vested in trustees for the use and benefit of the con[320] gregation at Lewisburg in connection with the Methodist Episcopal Church of the United States; and that, until legally divested in some way, it must continue to be held as a trust for the use and benefit of the said church so long as it continues to have existence; and that if at any time it should cease to exist entirely, and thus the pui’pose for which the property was conveyed became completely frustrated, that the property in that ease would constitute a resulting trust in equity, and revert back to the original donor or his heirs. See 2 Story’s Eq., §§ 1175,1196,1200; Supplement to U. S. Dig. (1847), p.' 436, § 308; 2 Story’s Eq., § 1191, and note, § 1192 Id.
The court is further of opinion that a charity given for a particular purpose cannot be altered or diverted to any other. 2 Story, § 1175. That an organized church cannot be divested of its property by even a majority of its members who enter into a new organization, although they adopt the same name, provided the old organization still exists; and that when seceders from an organized church enter into such new organization, they forfeit all claim to any interest in the former church, and lose all identity with it. Harper vs. Straws, 14 B. Monroe, 48.
The court is further of the opinion that by a resolution of the New York general conference in 1844, a plan of separation was agreed upon, which, if strictly complied with on the part of the church south, would have taken this case out of the operation of the principle of Harper vs. Straws, and brought it clearly within the principle of Brooke vs. Shacklett, 13 Gratt., 307, which was cited and relied upon with so much confidence.
But the court is furthermore of opinion, that upon the facts shown as evidence, the case of Brooke vs. Shacklett is an express authority against the appellants, and establishes the right of the appellees to the church in controversy. That case simply decided that in the case of a border conference, such as this is, that a separation of the churches pursuant to the plan of 1844, that is, by a vote of the majority of the society, station, or conference within which the property [321] lies, not only established a separate ecclesiastical institution in the church thus separating, but carried with it all the church domain within the limits of such conference, station, or society. That the vote of such majority, whether adhering to the original church, or joining the church south, not only determined the particular ecclesiastical complexion, but the future rights of property in the local church.
There is nothing to show in this case that the vote of such majority has ever been cast, at least, in favor of the southern church. Certainly no station or society has thus spoken. And the court is of opinion, from the various annual registers and other proceedings which were offered in evidence, from the general conference at blew York in 1844, down to the Alexandria conference in 1866, that by the vote of no majority of the .Baltimore conference has the church in controversy, which undoubtedly once belonged to that branch of the original church, ever legally became an appurtenant of the Methodist Episcopal church south, or of its local authorities in Lewisburg. It was claimed for the defendants below, that the process of separation by which they claim the church in question, was initiated at the conference in Staun-ton in 1861, and consummated by the Alexandria conference in 1866. Is this pretension supported by the evidence ? IVhilst the Staunton conference disavowed and strongly protested against the doctrine of the old church on the subject of slavery, it still declared itself “to be an integral 'part oj the said church,” and as such., when it adjourned at Staunton in 1861, it resolved that its next general annual conference should be held in Baltimore. It,, that is, the same Baltimore conference which adjourned at Staunton in 1861, met pursuant to its adjournment, in conference, at Baltimore in 1862, and then and there, by the vote of a large majority of such conference, this protest or disavowal of the Staunton conference was in turn repudiated and disavowed, leaving the question, of course, as it stood before. In the proceedings and resolutions of these conferences for the year 1861 and 1862, it would be more correct to say, therefore, that [322] the separate organization of the MethodistEpiscopal Church south, in this department, was both inaugurated and ferfected by the Alexandria conference in 1866; and at that conference, although claimed by the church south to have been the Baltimore conference, the record shows that a large majority of the Baltimore conference proper were not present, and never recognized any of the resolutions or proceedings at Alexandria as the act of the Baltimore conference. All the Alexandria conference did, therefore, was to sever the ecclesiastical bond which bound it to the parent church, without acquiring any of the property of that Church according to the plan of separation of 1844, or under the decision of the court of appeals of Virginia in Brooke vs. Shacklett.
The court is further of opinion from the evidence, that so far as the Baltimore conference is concerned, that the separation or election as contemplated by the general conference of 1844, was in fact accomplished in 1845, and resulted in a formal resolution by a majority of the Baltimore conference, to adhere to the northern division of the church, which settled its ecclesiastical status and carried with it the right of property in the church in question. See Annual Register of Baltimore conference, p. 20; also Brooke vs. Shacklett, 13 Gratt., 307, 325, 326, where the proceedings of the Baltimore conference of 1845 are fully stated.
Nor is there anything in the record to show that the church at Lewisbnrg was a border station, within the meaning of the plan of separation adopted by the genei'al conference in 1844; nor that said congregation ever took any action as therein prescribed, to change its then existing ecclesiastical relations by adhering to, or uniting with, the church south; but on the contrary thereof, it must be supposed to have acquiesced in the action of the Baltimore conference, to which it belonged, and that it did so, in fact, is proved' by the evidence of the presiding elder, Rev. Mr. Waugh, of the church south, who was sent in 1848, to the Lewisburg church, or station, as minister of the M. E. Church, and as such received by it. but who since that [323] time seems to have left it and united with the church south. It is further proved by the fact that they received the deed for the church property, reciting the trust and use, for the M. E. Church, and excluding the idea of adherence to the church south at the date of the deed; and by the further fact that it 'is not even claimed by the parties, or any of them, that there ever was any attempt to change the ecclesiastical connection from the church north to the church south before 1861, when it is said the thing was first inaugurated in the conference at Staunton, and only claimed to have been completed by a controverted conference at Alexandria in 1866, Conceding them all that could possibly be claimed to legitimate the attempted change of ecclesiastical connection from one organization to the other, on the part of the Lewisburg station or congregation, .and suppose it a border station, and in 1866, in pursuance of the action of the Alexandria conference, took action by a vote of the congregation called by the minister of the M. E. Church, rightfully having that church in charge, and upon due notice, and after full and fair consideration of the whole subject, a large and decided majority of the members resolved to cut the connection with the M, E. Church north, and unite with and adhere to the church south from thenceforth, and conformed their action to this resolve, could that have the effect to change the ecclesiastical relations and connections of the minority in the same manner, without their consent, and against their will ? Such would undoubtedly be the case if the act were authorized by the plan of .separation adopted by the general conference in 1844, but would not he the fact if not so authorized. And this depends upon the fact whether that plan of separation is to continue open and existing for action and counteraction by border stations, and ever shifting borders for all time past and future, or whether action once taken is final, and the period for such action, in a reasonable time, after the plan of separation was adopted and executed ?
Upon this point it is most manifest that the plan of sep[324] aration was a plan of peace, to end strife. And the relations of the conferences, churches, stations, and societies along the defined and specified border, being once settled by the choice of those authorized so to act, by adhering to the one side or the other, was final and conclusive, and could never after be changed, or counteracted, under, or by virtue of that plan and authority. Nor was it contemplated to keep the question open to be shifting from side to side, from time to time, as one side or the other may have a majority. Such a construction would be to defeat the end in view — of peace and settlement — increase the dissensions among the people, and make confusion worse confounded. Upon no hypothesis, then, could the action of any portion of the members, whether small or great, influential or not so, male or female, black or white, of the Lewisburg church change the ecclesiastical connection of that church though reduced to a minority, from its former relations and connection with the M.E. Church to the M. E. Church south; neither could it thereby in anywise whatever, change or affect the property held in trust for the use of such congregation. The action (if any has been taken) uniting with and adhering to the church south, could only affect the parties so acting. They have the power to join whatever church they please, however it may be in disregard of the rules and constitution of the church to which they may have formerly belonged, but they cannot by so doing affect the rights of others, nor divert the use of property held in trust for a particular and specified purpose, to another and different purpose, or use.
The conclusion, therefore, is, that the particular congregation at’Lewisburg, having been a church in connection with the M. E. Church, and having never changed that connection under the plan of 1844, to the church south, still continues a church in its original connection, and is the same church,and in the same church connection, as mentioned and described in the deed of trust in question. And the proper authorities of said church having applied for and obtained the re[325] moval of tbe appellants, and tbe appointment and substitution of tbe appellees as trustees in said deed for tbe uses therein mentioned, there has been no injustice done to anyone, nor is there error in tbe judgment complained of.
Tbe judgment, therefore, of tbe circuit court of Green-brier county should be affirmed, with costs and damages to tbe appellees.
Judge Maxwell concurred.
Order affirmed.