Kisor's Appeal

The opinion of the court was delivered, by Agnew, J. A congregation, since known as the Bartholomew, existed before the year 1855, composed of members of the German Reformed and Lutheran Churches. By a deed of October [434] 1st 1855, Sarah Ann Ford conveyed the premises in controversy to trustees — “in trust, for the use of the Presbyterian and Lutheran congregations,-respectively, as at present organized, or hereafter to be organized; with this provision, however, that if either congregation deem it conducive to their interests the above-mentioned property be equitably divided by a committee of impartial persons selected by both congregations.” The “Presbyterian congregation,” it is admitted and proved, designates the congregation professing the German Reformed faith. The congregations worshipped together in an old church on the property until 1864. In the meantime they had, on the 27th December 1855, formed a constitution and adopted by-laws for the government of the united congregation, discarding denominational .differences ; founded solely on a conscientious reception, by all its members, of the writings of the Old and New Testaments as the. revealed word of God, to be preached in this church in their purity. The by-laws provided fully for measures to allay discord and dissatisfaction, requiring the elders, if unsuccessful, to bring the matters before the whole church council for mediation. In 1864 the congregation undertook the building of a new church on the premises, from their joint'means. In the latter part of that year discord arose; after which, in 1865, the Lutherans, with some of the German Reformed members, forcibly took possession of the new building before it was quite finished, and have since held it; refusing to permit the German^Reformed congregation to participate with them in its use; and taking to themselves the sole management of the affairs of Bartholomew congregation, on the ground that the German Reformed party were seceders. This bill is brought to restore the German Reformed party to their right to the joint use of the property, to compel an account of the expenses of building the new church, and to enjoin the Lutheran party and their adherents from interfering with the'plaintiffs in the use of the joint property, under the deed of gift. The bill prays also for such other relief as the nature and circumstances of the case shall require. The first question is whether the court below had jurisdiction. The bill is not drawn with a clear apprehension of the rights and relations of the parties, and describes them simply as tenants in common. But the deed of trust is made a part of the bill, and the character of the use and relations of the parties are sufficiently set forth to show that, substantially, the plaintiffs are seeking a restoration of their rights as members of the united congregation, under their articles of association, including the privilege of membership, as well as the use of the joint property; and the decree of the court below was' made accordingly. Under these circumstances, the Court of Common Pleas had jurisdiction of the bill, and the case does not fall within the decision in North Penn. Coal [435] Co. v. Snowden, 6 Wright 488. The Courts of Common Pleas have the jurisdiction and powers of a court of chancery so far as relates to the supervision and control of all corporations (other than those of a municipal character) and unincorporated societies or associations, and partnerships;” “the prevention, or restraint of the continuance, of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals;” and “the affording specific relief,'when a recovery in damages would be an inadequate remedy.” This is a dispute and division between members of an unincorporated society, in relation to the enjoyment of .their rights and privileges as an association, and not merely as tenants in common of real estate. By reason of numbers, and of the character of the rights of the parties, damages are unsuitable as a means of redress; and the case admits of no adequate relief at law. Equity alone can apply the required remedy, while the malcontents can be restrained, and held to a full performance of their associated duties, only by the powers of a chancellor. Lowrie, C. J., said, in Kerr v. Trego, 6 Wright 296, “ It is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in the last year. One of the cases was Sutter v. The Dutch Church, 6 Wright 503.” See also Thomas v. Ellmaker, 1 Parsons 98; Price v. Maxwell, 4 Casey 23; Stockdale v. Ullery, 1 Wright 486. The finding of facts by a master, sanctioned by the approval of the court below, will not be set aside except for plain error. In this case there is no such error. The appellants committed the first wrong. There is no evidence that the Rev. Mr. Shade, and the young candidate, Mr. Iioupt, were invited to preach by the German Reformed congregation. Possibly some members may have been informed of their design, yet of this there is no actual proof. But the evidence of the appellants shows that these gentlemen came there of their own motion, and probably under the instruction of the classes to which they belonged. The Rev. Mr. Reising himself, who headed the Lutherans, says that Mr. Shade sent a letter which was handed to him in the pulpit. He read it to the congregation. It stated that he would come and preach for them. Reising, in making the announcement, says he told them they could come to hear him, or stay away — -just as they pleased. Glassinger, another witness, says he was present when Shade came to preach. He had Mr. Houpt, a candidate, with him, who preached. After the sermon Shade requested the German Reformed portion to stay — that he had something to say to them. It is admitted on all sides, this announcement it was which gave rise,,to the difficulty; angry words, and .a fight, almost, ensuing.. The witness states that Mr. Reising said, “ they Could not help it; that the Presbyterian or German Reformed could not allow the Lutheran and German Reformed to stay together.” [436] It is very evident tbe unauthorized intrusion of Shade and Houpt began the difficulty; ■ which, instead of being allayed by mild words and an appeal to reason, or a resort to the means pointed out by the rules, was fomented to some extent by the imprudent expressions of Mr. Reising and bis Lutheran coadjutors. There is no evidence that there was a predetermined intention on the part of the German Reformed portion to divide the congregation, or to introduce a German Reformed preacher, contrary to rule. It was the duty of the Lutherans and their adherents, if aggrieved by the occurrence in the church, to have sought to repress the discord under the by-laws ; and if that did not avail, to have tendered a partition under the terms of Miss Ford’s deed, and not to take forcible and exclusive possession of the new building, denouncing the German Reformed party as seceders, and entitled to no common rights with themselves. There is no doubt there was not a good feeling among the German Reformed party after the occurrences in the church, and still less doubt that Mr. Shade and Mr. Houpt were much-to blame as disturbers of'the peace of this congregation by their unauthorized intrusion upon its quiet; but this was not secession on part of the German Reformed party. Finding no error, the decree is affirmed, with costs to be paid ' by the appellants. <