Bonham v. Harris

Mr. Justice Neil delivered the opinion of the Court. The bill in the present case was filed by E. W. Bon-ham, J. N. Hobbs, Thomas Harbinson, Joe H. Barbee-, John M. Smith, John D. Robertson, B. E. White, Thomas Allen, and J. H. Shaver, as elders; Andrew McLaughlin, L. W. Johns, H. E. Sheler, L. L. Alexander, J. R. Landis, and Ed Matthews,, as deacons; and W. H. Anderson, John W. Martin, Green B. Carr, and J. T. Macon, as members, of Grace Cumberland Presbyterian Church, at Nashville, Tenn., in behalf of themselves and all of the members' of the congregation similarly situated, against J. T. Harris,- H. B. Hill, W. T. Hardison, EC. Parrish, C. S. Johnson, W. B. Baird, R. E. Bartlett, Jr., J. M. Gaut, C. S. Johnson, and John White, as “el — 456 — ders of a congregation calling itself the Grace Presbyterian Church, U. S. A., Morris Fox, August Gwinner, Edward Jones, W. G. Jones, N. S. O’Callahan, W. H. Shearon, and Ben S. Williams, deacons in said church and congregation, and members of said church; all of whom are sued in their own right and for the entire class of members of said church and congregation, who, like themselves, have publicly renounced their allegiance to the Cumberland Presbyterian Church, and declared themselves to be members of the Presbyterian Church in the United States of America; and W. T. Rodgers, formerly a minister of the gospel in the Cumberland Presbyterian Church, but who, as the other defendants, has publicly renounced his allegiance- to said church and declared himself to be a minister of the gospel in the said Presbyterian Church in the United States of America, and is now acting as pastor of the other defendants, who have seceded from the Cumberland Presbyterian Church, residents of Davidson county, Tennessee, defendants. This suit grows out of the controversy which was settled by this court in the case of Landrith v. Hudgins, 121 Tenn., 556, 120 S. W., 783. In that case this court held that the union attempted between the Cumberland Presbyterian Church and the Presbyterian Church in the United States of America, or more briefly called the Presbyterian Church, U. S. A., was void, and that, in case of a division of a congregation of the Cumberland Presbyterian Church and a subsequent litigation over the church property, that faction — 457 — which adhered to the doctrinal standards of the Cumber land Presbyterian Church was the true congregation, and was entitled to the property. The court also held in that case that the faction of such congregation which went over to the Presbyterian Church, U. S. A., in recognition of such void attempted union, had no longer any right to the church property. The complainants in the present bill claim to be and represent that portion of the congregation of Grace Cumberland Presbyterian Church which remained with that church and did not go over to the Presbyterian Church, U. S. A., and the proof sustains this contention. The proof also shows that the defendants and those whom they represent recognize such void union and publicly claim to be members of the Presbyterian Church, IT. S. A. Under the foregoing- facts, and .the principles settled in Landrith v. Hudgins, the complainants are entitled to recover the church property for which they sue, being the church house and the land on which it rests, with the appurtenant property, nothing else appearing. It is insisted, however, that the complainants are es-topped on the ground that, after the alleged union was promulgated by the General Assembly of the Cumberland Presbyterian Church at Decatur, Ill., in May, 1906, and announced by the officiating minister of Grace Church in June, 1906, they acquiesced therein, and that they thereafter affiliated with those members who followed the alleged union in all church services, including contributions to the various church benevolencies and other church activities. — 458 — Under our practice, the complainants need not file a replication to the answer; but the law interposes a formal replication, making an issue upon the affirmative averments of the answrer. Shannon’s' Code, secs. 6132, 6138, 6244; Stainback v. Junk Bros., 98 Tenn., 306, 317, 39 S. W., 530. These matters must therefore be treated as being denied by the complainants. There is no evidence to sustain the averments of the answer upon this subject, except as to E. W. Bonham, John M. Smith, John D. Robertson, and Andrew McLaughlin. Therefore, if it should be held that they were estopped, it would not prevent the other complainants from obtaining a recovery. However, the most that can be said as to Bonham, Smith, Robertson, and McLaughlin is that, while they did not approve the attempted union, they went along as usual in attending- church and in contributing of their means, and from time to time attended the meetings of the official bodies of .the church to which they belonged; that is, as elders or deacons. This continued up until the late fall of 1906. In addition it appears that Mr. Bonham, early in 1904 or 1905, participated in the election of a delegate to the Presbytery, who announced that he was in favor of the union, and did not dissent from the view expressed by that delegate, who stated that he was going to vote for the union, and, in effect, allowed it to be understood at that time that he favored the union; no one dissenting of the board of elders, at that time, but John M. Smith. As to John M. Smith it also ¿ppeárs that in the fall of 1906 his son was nominated by the session of the organization répre459 sented by tbe defendants as a deacon in tliat organization, and elected by tbe congregation, and that be participated in tbe subsequent meeting of tbe session of which be was .then a member in‘tbe consecration and setting apart of this son of bis through tbe ordinance of tbe laying on of bands. It should further be stated that it was well known in tbe congregation all along that there were dissenters in their midst, and tbe policy pursued was to deal gently with these, to discourage debate and controversy on tbe subject of tbe union, hoping that in time they would become fully satisfied to remain. They were told that they were still 'Cumberland Presbyterians, and that all things would go on in tbe church as before; that they would know no difference; that in truth tbe Presbyterian Church, U. S. A., bad come to tbe Cumberland Presbyterian Church, and not tbe latter to it — all of wbicb views we have no doubt were honestly entertained by those who expressed them. In addition, an idea bad gotten abroad among these dissenters, or some of them, based on an erroneous construction of a remark made by a very influential member of tbe congregation, Mr. Hardison, that all members would have a year in wbicb to decide whether they would remain Cumberland Presbyterians or go with those, who embraced tbe union. These various views bad a distinct effect upon tbe minds of tbe dissenting element, tbe representatives of wbicb are before us as complainants, sufficient of themselves to neutralize any inference to be drawn from apparent acquiescence. It should further be stated, in explanation of'the acts referred to of — 460 — apparent acquiescence on the part of the persons mentioned, that in July, 1906, the hill in the case of Landrith v. Hudgins was filed and an injunction was issued, which was understood by the Cumberland people to restrain them from claiming to be Cumberlands under the old •organization of that church. It also appears that it was understood that that case was to be a test case, that would decide the validity of the union in this State, and that it would settle all controversies. This case was not finally decided until December, 1908. It is fair to presume, in the light of the evidence, that the parties who ■conformed to the requirements of the alleged union, pending this suit, did so only provisionally, subject to their right to reassume their original position on the termination of the case against the union. The interval that elapsed between May, or June, 1906, and July, 1906, was not sufficient to hold any of the complainants responsible for such acquiescence as would estop them from subsequently assuming their true position and claiming their rights. After the suit of Landrith v. Hudgins was begun, and the injunction was sued out in the manner stated, no adverse inference could be indulged against these parties by reason of such apparent acquiescence. Moreover, long before that suit was determined, all of these parties made known publicly their purpose to remain with the old organization. This was done January 13, 1907, openly, in a meeting of the congregation of the church just after the completion of the day’s services, on a Sunday. Prior to that time, on about December 18th, there was a meeting of what was called — 461 — the official board of the church, consisting of the elders-, and deacons, at which twenty members were present. At this time the question was asked whether that was a meeting of officers of the Cumberland Presbyterian. Church, or the Presbyterian Church, U. S. A. .When, the minister in charge replied that it was a Presbyterian,. U. S. A., meeting, this was denied by others present, resulting in a controversy, at which it appears that the division was about equal — that is, ten on each side — one side openly claiming that they adhered to the old organization, and the other that they were members of the' Presbyterian Church, U. S. A. Soon after that the public meeting was held in thé church, as already stated. At that meeting proclamation was made that all who--wished to continue as members of the Cumberland Presbyterian Church should repair to a certain part of the-auditorium, and this was done.' A minister of the Cumberland Presbyterian Church was sent for, and certain persons were elected elders. It is insisted on behalf of the defendants that at this-meeting the parties who responded to the proclamation withdrew from the old organization of Grace Cumberland Presbyterian Church and established themselves as a new organization. This is based on the fact that the new elders who were elected were not nominated by the session, but by some member present, and elected by the congregation or assemblage of persons who had answered the proclamation. While it is said the rules of the Cumberland Presbyterian Church require that, in the case of the election of an elder in an established — 462 — congregation, nominations sliall be made by tbe session, and that when a new congregation is established they, shall be elected by the people without such nomination, the rule also permits that the people may nominate a person for the eldership, regardless of' the fact that the session has nominated some one else, and may elect the person so nominated by them. It is said, however, that Mr. Zwingle, a Cumberland Presbyterian preacher, who had come at the call of the dissidents, read from the Cumberland Presbyterian standards the passage above .referred to, and explained the practice to be followed when a new church is organized, and when an elder is elected in an established organization, and that he proceeded to follow the plan which was laid down as proper in the organization of a new congregation, and that Mr. Bonham arose and corrected him, stating, in effect, that this was not a new organization, but a continuance of the old, but that the minister proceeded as he had begun without regard to the interruption. There is evidence upon both sides of this question, but we do not think it material. As already stated, before Mr. Zwin-gle came the people had gathered into a separate body under the call of Mr. Bonham for the perpetuation of the old organization. If the minister mistakenly supposed that they intended to effect a new organization, it would not result in that manner, since their avowed purpose was, as already indicated, to continue the old organization, and the fact that they elected two elders .out of their midst without the nomination of their ses — 463 — sion was immaterial, since, as already stated, that practice was allowed. , As preyionsly stated, it does not appear that any of the complainants, or any of the congregation they represented, conformed in any way to the union at any time, except Bonham, Smith, Robertson, and McLaughlin. The fact that Bonham in 1904 or 1905 voted for a delegate to the Presbytery whom he knew was in favor of the union would not deprive him of the right of reconsidering the matter in 1906. In 1904 and 1905 the mat-, ter was inchoate, and it yet remained to he seen whether the union would he lawfully effected. It was not lawfully effected, as we have held in the case of Landrith v. Hudgins. As to the acts of these parties, after May, 1906, we have already stated our views upon that matter, and, as wTe have said, even if these particular parties could he held estopped by their apparent acquiescence after May or June, 1906, the other complainants and those whom they represented would not he estopped. In what we have said we have assumed that conforming to the church services with those who supported the attempted union, and subscribing to church funds and taking part in the various acts of the governing bodies of the church, would amount to an estoppel, nothing else appearing. As we conceive, however, the true principle is this: Where an attempted unión between two churches is void, because not in conformity with the constituent rules and principles required by one of these bodies to make such union effective, the church property can be carried into another denomination only by — 464 — unanimous consent of the members of tbe cburcb. Until such unanimous consent is bad, tbe property is not transferred from one organization to tbe other, and prior to that time any member or members can signify dissent and retain tbe property in tbe old organization. This is bound to be so on principle. Where property is owned by a cburcb congregation, it is devoted to tbe principles and doctrines professed by that denomination. Those who adhere to those principles and doctrines are tbe .true congregation. Those who do not are no longer a part of tbe congregation to which tbe cburcb property belongs, no matter whether they be tbe majority or tbe minority. These are tbe settled rules, as shown in Landrith v. Hudgins. However, as stated, if there is unanimous consent, tbe whole congregation can do with tbe property as it wills. Until there is such consent tbe ' property bolds its original status; that is, tbe property, for example, of a Cumberland Presbyterian congregation. Of course, there may be an acquiescence for such length of time in tbe action or course of conduct of tbe majority of a congregation as to amount to conclusive evidence of a unanimous agreement, although no formal vote was taken for transfer from one faith or cburcb affiliation to another. This rests, not upon tbe doctrine of estoppel, since the conduct of others was not affected thereby, nor any interest of theirs prejudiced, but upon a rule of evidence — an admission inferred from conduct, so long continued and so unequivocal as to admit of no other reasonable construction. Tbe facts of tbe present — 465 — case, we think, do not present grounds for such an inference. It is insisted, however, by defendants, that the case of Landrith v Hudgins should be overruled. That case was argued by some of the ablest counsel in the State on both sides of the question. Very voluminous briefs were filed, in addition to elaborate oral arguments. The court held the case under advisement for a year, and considered it in all' its bearings, and, after doing this, handed down the opinion which is published in 121 Tenn., 556, 120 S. W., 783. We had before us, at the time, the decisions of the supreme courts of Georgia and Texas and of the court of appeals of Kentucky, and declined to follow them, because we did not believe that those decisions were based on sound principles, or that the true result had been reached therein. The fact that the suprame courts of several other States have since followed those decisions is immaterial. The conclusion reached by this court was believed at the time to represent the sounder view, and we see no reason to change it. We decline to overrule that case. Under that case, it must be regarded that the controversy between the contending factions in the Cumberland Presbyterian Church is settled, and it is useless to bring cases to this court with the hope of inducing the court to disregard that decision. We understood, at the time, that it was a case brought to test the question as to the validity of the union, and, in that view, gave to it extraordinary attention and care. — 466 — . We see no error in the decree of the chancellor, and it is affirmed..