
    *Brooke & als. v. Shacklett. Carter & als. v. Wolfe.
    April Term, 1856,
    Richmond.
    1. Case Approved. — The case of Gallego’s ex’ors v. The Attorney General, 3 Leigh 450, approved.
    2. Religious Congregations — Statutes.—The act, Code, ch. 77, § 8, 9, 10,11,12, 13, relates only to conveyances, devises and dedications of property for the use of “religious congregations,” in the limited and local sense of the term, viz: for the members of those religious congregations, who, from their residence at or near the place of public worship, may be expected to use it for such purpose.
    
    3. Same — Gift Must Design Enjoyment of Local Society. —No deed which does not respect the rights of the local society or religious congregation; and no deed which does not design the enjoyment of the uses of the property conveyed by the local religions society or congregation, can be placed within the influence of the statute.
    4. Deed — Sanctions Hinisters’ Appointment — Validity. —A deed conveying property in trust for the use of the local society, is Inot without the operation of the statute, by reason that it sanctions the appointment of the ministers and authorizes them to use the house for preaching, without any reference to -the vote or wish of the congregation: it being a Methodist church, and the ministers being to be appointed by the conference, according to the constitution of that church.
    5. Same — Ministers’ Right to Preach in Church — Powers of — Majority—Laws of Church. — Deed conveys a house of worship in trust for a local religious congregation; and provides, that the trustees are at all times to permit the ministers belonging to the Methodist Episcopal church, who shall be duly authorized by the conferences of the church, to preach in the house. Upon a question of the right of a minister to preach in the house, that question is to be determined by enquiring, not whether he represents the wishes of a majority of the members of the society, but whether he has been appointed and assigned to the society in accordance to the laws of .the church.
    6. Plan for Separation of Church — Right to Adopt.— The general conference of the Methodist Episcopal church in the United States had the conditional power to adopt the plan for the separation of the church, adopted in 1844.
    302 *7. Same —Same—Right of Majority to Use Church-ffouse. — A society of the church which, according to the plan of separation, is a border society, having by a majority of its members resolved to adhere to the Methodist Episcopal church south, is entitled to the use of the church-house in exclusion of' those who repudiate the authority of said church, and refuse to receive the pastors appointed by it.
    By deed bearing date the 3d day of June 1842, John C. Davis and wife, in consideration of ninety dollars, conveyed to Benjamin Broolte, George W. Shacklett and three others, a lot in the town of Salem in the county of Eauquier, upon the following trusts: In trust that thfej* 1 2- shall erect and. build, or cause to be erected and built thereon, a house or place of worship for the use of the members of the Methodist Episcopal church in the United States of America, according to the rules and discipline which from time to time may be agreed upon and adopted' by the ministers and preachers of the said church at their general conferences in the United States of America; and in further trust and confidence, that they shall at all times forever hereafter, permit such ministers and preachers belonging to said church as shall from time to time be duly authorized by the general conferences of the ministers and preachers of the said Methodist Episcopal church, or by the annual conferences authorized by the said general conference, to preach and expound God’s holy word therein. And in further trust and confidence, that as often as any one or more of the trustees herein before mentioned shall die or cease to be a member or members of the said church, according to the rules and discipline as aforesaid, then and in such case it shall be the duty of the stationed preacher or minister (authorized as aforesaid) who shall have the pastoral charge of the members of the said church, to call a meeting of the remaining trustees as soon as conveniently may be; and when so met, the said minister or preacher shall proceed to nominate one or more persons to fill the place 'or places of him or them whose *office or offices has or have been vacated as aforesaid: provided, the person or persons so nominated shall have been one year a member or members of the said church immediately preceding such nomination, and be at least twenty-one years of age. And the said trustees, so assembled, shall proceed to elect, and by a majority of votes appoint the person or persons so nominated to fill such vacancy or vacancies, in order to keep up the number of five trustees forever. And in case of an equal number of votes for and against the said nomination, the stationed minister or preacher shall have the casting vote: provided, nevertheless, that if the said trustees, or any of them, or their successors, have advanced, or shall advance, any sum or sums of money, or are or shall be responsible for any sum or sums of money on account of the said premises, and they, the said trustees or their successors, be obliged to pay the said sum or sums of money, they, or a majority of them, shall be authorized to raise the said sum or sums of money by a mortgage on said premises, or by selling the said premises, after notice given to the pastor, or preacher, who has the oversight of the congregation attending divine service on the said premises. If the money due be not paid to the said trustees or their successors within one year after such notice given, and if such sale take place, the said trustees, or their successors, after paying the debt, and other expenses which are due, 'from the money arising from such sale, shall deposit the remainder of the money produced by the said sale in the hands of the steward or stewards of the society belonging to or attending divine service on the said premises, which surplus of the produce of such sale, so deposited in the hands of said steward or stewards, shall be at the disposal of the next yearly conference, authorized as aforesaid; which said yearly conference shall dispose of said money according to the best of *their judgment for the use of said society. And the said John C. Davis and Susanna his wife do by these presents warrant and forever defend all and singular the before mentioned and described lot or piece of land with the appurtenances thereto belonging, .unto them, the said Benjamin Brooke, W. H. Rector, G-eorge W. Shacklett, James R. Milton and Richard H. Carter, and their successors, chosen and appointed as aforesaid, from the claim or claims of them, the said John C. Davis and Susanna his wife, their heirs and assigns, and from the claim or claims of all persons claiming by or under them.
    The bill states, and it is not denied in the answer, that the said trustees, by means of subscriptions obtained from the members of the congregation, on whose behalf plaintiff sues, and from other sources, built a church-house on said lot, and that the same had been used by the congregation and the ministers and preachers aforesaid, according to the trust,' for a long time. This was the church-house in controversy in the case' of Brooke & als. v. Shacklett.
    By deed bearing date the 15th day of August 1805, Daniel Floweree and wife, in consideration of the conveyance of a lot of land to them, conveyed with general warranty to Benjamin Rector and others a lot of land in the village of Rectortown in the county of Fauquier, upon the same trusts as those above stated as contained in the deed from Davis and wife to Brooke and others. And a church-house was built thereon by the same means and was used in the same way. This is the church-house in controversy in the case of Carter & ais. v. Wolfe. All the proceedings and all the other facts in the two cases are precisely the same; and they were heard together in the court below and in this court.
    In 1844 a committee of the general conference of the Methodist Episcopal church held in New York, *made a report, which was adopted by the general conference, of which the introduction and the first, second and ninth clauses are as follows:
    The select committee of nine, to consider and report on the declaration of the delegates from the conferences of the slaveholding states, beg leave to submit the following report:
    Whereas a declaration has been presented to this general conference, with the signatures of fifty-one delegates of the body from thirteen annual conferences in the slave-holding states, representing that, for various reasons enumerated, the objects and purposes of the Christian ministry and church organization cannot be successfully accomplished (by” them) under the jurisdiction of this general conference, as now constituted; and
    Whereas, in the event of a separation, a contingency to which the declaration asks attention as not improbable, we esteem it the duty of this general conference to meet the emergency with Christian kindness and the strictest equity: therefore,
    Resolved, by the delegates of the several annual conferences in general conference assembled,
    That should the delegates from the conferences in the slaveholding states find it necessary to unite in a distinct ecclesiastical connection, the following rule shall be observed with regard to the northern boundary of such connection : All the societies, stations and conferences adhering to •the church in the south, by a vote of a majority of the members of said societies, stations and conferences, shall remain under the unmolested pastoral care of the southern church, (and the ministers of the Methodist Episcopal church shall in nowise attempt to organize churches or societies within the limits of the church -south; nor shall they attempt to exercise any pastoral oversight therein, it being understood that the ministry of the south reciprocally *observe the same rule in relation to stations, societies and conferences adhering by vote of a majority to the Methodist Episcopal church,) provided, also, that this rule shall apply only to societies, stations and conferences bordering on the line of division, and not to interior charges, which shall in all eases be left to the care of that church within whose territory they are situated.
    2d. That ministers, local and traveling, of every grade and office in the Methodist Episcopal church, may, as they prefer, remain in that church, or, without blame, attach themselves to the church south.
    9th. That all the property of the Methodist Episcopal church in meeting-houses, parsonages, colleges, schools, conference funds, cemeteries, and of every kind, within the limits of the southern organization, shall be forever free from any claim set up on the part of the Methodist Episcopal church, so far as this resolution can be of force in the premises.
    In May 184S the representatives of thirteen annual conferences which are within the slaveholding states, met at Louisville, Kentucky, and by a vote of ninety-four to three, adopted the following resolutions :
    Be it resolved, by the delegates of the several annual conferences of the Methodist Episcopal church in the slaveholding states, in general convention assembled, that it is right, expedient and necessary to erect the annual conferences represented in this convention into a distinct ecclesiastical connection, separate from the jurisdiction of the general conference of the Methodist Episcopal church, as at present constituted; and accordingly we, the delegates of the said annual conferences, acting under the provisional plan of separation adopted by the general conference of 1844, do solemnly declare the jurisdiction hitherto exercised over said annual conferences by the general conference of the Methodist Episcopal church, entirely *dissolved; and that said annual conferences shall be and they hereby are constituted a separate ecclesiastical connection under the provisional plan of separation aforesaid, and based upon the discipline of the Methodist Episcopal church, comprehending the doctrines, and entire moral, ecclesiastical and economical rules and regulations, of said discipline, except only in so far as verbal alterations may be necessary to a distinct organization, and to be known by the style and title of the Methodist Episcopal Church south.
    Resolved, that this convention request the bishops presiding at the ensuing session of the border conferences of the fdethodist Episcopal church south, to incorporate into the aforesaid conferences any societies or stations adjoining the line of division: provided, such societies or stations, by a majority of the members, according to the provisions of the plan of separation as adopted by the late general conference, request such, .an arrangement.
    The Virginia conference was represented in the convention at Louisville, and became a part of the Methodist Episcopal church south. The Baltimore conference was not represented in that convention, and in 1846 it formally resolved to adhere to the Methodist Episcopal church. A part of this conference was in Virginia, and the Loudoun and Warrenton circuits belonged to it; and they extended to the Rappahannpck river; which was the dividing line between the Virginia and Baltimore conferences.
    After the action of the Louisville convention, and of' the Baltimore conference, the societies worshiping at Salem and Rector-town, by the vote of a majority of their members, resolved to adhere to the Methodist church south. These societies claimed to be bonder societies, .and therefore entitled, under the plan of separation, to elect whether they would adhere to the northern or southern church. Whether they were *such border societies the proof was somewhat contradictory, though the weight of the evidence was in their favor.
    The trustees in the deeds holding the church-houses for the use of the societies and ministers connected with the southern church, George W. Shacklett in the first case, and Andrew Wolfe in the second, filed their bills in the Circuit court of Eauquier county, in behalf of themselves and the congregation worshiping in- the church-houses, respectively, against the trustees, in which, after setting out the deeds and the division of the Methodist church, as herein before stated, they insisted that these societies were not border societies, and entitled under the plan of separation to adhere to the church south; that the trustees were abusing their trust in excluding from the use of the said church-houses the members and ministers of the Methodist Episcopal church, and in converting them to the use of the members and ministers of the Methodist church south. And they prayed that the trustees might be compelled to execute the trusts of the deeds truly and faithfully, and apply the said church-houses to the use of the members and ministers of the Methodist Episcopal church in the United States worshiping in said houses, or that the said trustees be removed and others appointed in their place; and for general relief.
    The trustees answered the bills, insisting that these were border societies, and entitled to adhere to the church south. And the causes coming on to be heard upon the facts and evidence herein before stated, the court held, that the plaintiffs and the other members of the congregations of the Methodist Episcopal church worshiping at the church-houses in Salem and Rectortown, in the bills and proceedings mentioned, with the ministers duly appointed by the Methodist Episcopal church, for ^aid congregations and church-houses to minister therein, were the beneficiaries *in the deeds aforesaid; and the legal title only being in the trustees, that it was their duty to appropriate the same for the use and benefit of the said congregations and ministers and for none others: And the decree was, accordingly. And the court proceeded further to remove the trustees; and declared that it would upon the application of the proper authorities of the congregations aforesaid appoint new trustees in their stead. From these decrees the trustees applied to this court for appeals, which were allowed.
    The cases were elaboratelj' argued by Griswold, Patton- and Robinson, for the appellants, and Morson, for the appellees.
    
      
      Case Approved. — Por the law as laid down in Gallego v. Attorney General, 3 Leigh 450, and approved in the first headnote of the principal case, the principal case is cited and approved in the following cases: Com. v. Levy, 23 Gratt. 40; Wilson v. Perry, 29 W. Va. 189, 1 S. E. Rep. 317, and cases cited; Wilmoth v. Wilmoth, 34 W. Va. 436, 12 S. E. Rep. 734, and cases cited; Pack v. Shanklin, 43 W. Va. 317, 27 S. E. Rep. 394; Heiskell v. Trout, 31 W. Va. 812, 8
      5. E. Rep. 559; Knox v. Knox, 9 W. Va. 145; Kelly v. Love, 20 Gratt. 130, and monographic note on “Charities” appended at end of case.
    
    
      
      Church Property. — See monographic note on “Charities” appended to Kelly v. Love, 20 Gratt. 130.
    
    
      
      The substance of the statute is stated by Judge Daniel in his opinion.
      I. IN GENERAL.
      A Church — Definition.—The collective body of Christians, or those who acknowledge Christ as the Savior of mankind form the Church. Wilson v. Perry, 29 W. Va. 169, 1 S. E. Rep. 302.
      Same — Cannot Be incorporated. — “The General Assembly shall not grant a charter of incorporation to any church or religious denomination.” Constitution of Virginia, Art. V, § 17.
      
      The case of Trustees v. Guthrie, 86 Va. 125, 10 S. E. Rep. 318, called for a construction of this section of the constitution. The facts were as follows: A corporation styled the “Trustees of the General Assembly of the Presbyterian Church in the United States,” with power to carry on foreign missions, etc., to establish committees, etc., deemed branches, for its purposes, with a provision that any bequest to the corporation for any such committees, etc., should pass to said trustees, created a committee called the “Executive Committee of Foreign Missions,” commonly known as “The Board of Foreign Missions,” and the executive officer as “the secretary,” and the corporation itself as the “Southern Fresbyterian Church.” Held, the creation of such corporation was not the incorporation of a church or religious denomination, which is forbidden by Virginia Const., Art. V, § 17.
      Religious Congregations. — Religious congregations include, as well those which are united with others under a common government, as those which are independent or congregational in their organization and government. The phrase, however, does not apply to whole denominations of sects, but it is to be understood in the limited and local sense of the words, so as to restrict the' benefit of such conveyances to single congregations, whose members, from their residence at or near the place of public worship, may be expected to use it for such a purpose. Brooke v. Shacklett, 13 Gratt. 313; Hoskinson v. Pusey, 32 Gratt. 431.
      Public Policy. — The legislation of Virginia has never exhibited any hostility to bequests for religious uses. Prot. E. Ed. Soc. v. Churchman, 80 Va. 718; Trustees v. Guthrie, 86 Va. 125, 10 S. E. Rep. 318.
      II.. VALIDITY OP GIRTS TO CHURCHES.
      A. INDEPENDENTLY OP STATUTE. -In Virginia gifts for religious purposes in general are void as they create trusts of a vague and indefinite character. The Virginia decisions as to the validity of such trusts, and the general powers of a court of chancery, in the absence of statute, over trusts of this nature, have been conflicting. As held in Fifield, v. Van Wyck, 94 Va. 557, 27 S. E. Rep. 446, the latest Virginia case involving a determination of this question, chancery courts have no jurisdiction to declare vague and indefinite charity trusts, independently of statutory provisions.
      As to the general subject of chancery jurisdiction over vague and indefinite charities, see mono-graphic note on “Charities.”
      B. CONSTITUTIONAL AND STATUTORY PROVISIONS.
      1. Constittjtionai, Provisions. — The Virginia Constitution, Art. V, §17, provides that the general assembly may secure the title to church property, to an extent to be limited by law. For construction of this section of the constitution, see Trustees v. Guthrie, 86 Va. 125, 10 S. E. Rep. 318.
      2. Statutory Provisions. — In 1866-67 (Acts 1866-67 p. 907, Va. Code.1887, § 1398), the Virginia Legislature enacted a statute providing that gifts of land for certain religious purposes should be valid when such donations were made by conveyance, devise or dedications since Jan. 1, 1777, and after that date (1866-67), donations made by conveyance only, for such purposes, should be valid. For amendments toVa. Code, 1887, § 1398, see Pollard’s Supp. Va. Code, § 1398.
      For like provision in West Virginia relative to gifts for religious uses, the law governing which is very similar to Virginia, see W. Va. Code, 1899, ch. 57, § 1. These statutes have been brought in question and construed in'the following cases: Brooke v. Shacklett, 13 Gratt. 301; Hoskinson v. Pusey, 32 Gratt. 428; Finley v. Brent, 87 Va. 103, 12 S. E. Rep. 228; Boxwell v. Affleck, 79 Va. 402; Prot. E. Ed. Soc. v. Churchman, 80 Va. 718; Seaburn v. Seaburn, 15 Gratt. 423; Bible Soc. v. Pendleton, 7 W. Va. 79; Wilson v. Perry, 29 W. Va. 169, 1 S. E. Rep. 302: Trustees v. Guthrie, 86 Va. 125, 10 S. E. Rep. 318; Carskadon v. Torreyson, 17 W. Va. 43.
      Objects and Purposes of the Statute.
      
        a. Zand. — The statute validates conveyances of land for religious congregations for the following uses: As a place for public worship; as a burial place, or a residence for a minister. If any other purposes and objects than those above designated shall be aimed at, the conveyance is, as to such purposes at least, as void as if the statute had never been enacted. Brooke v. Shacklett, 13 Gratt. 301; Linn v. Carson, 32 Gratt. 170.
      Same — Gilt Must Design Enjoyment by Local Society. —No deed which does not respect the rights of the local society or religious congregation; and no deed which does not design the enjoyment of the nses of the property, conveyed, by the local religions society or congregation, can be placed within the influence of the statute. Brooke v. Shacklett, 13 Gratt. 301.
      Dedication — Local Society. — No dedication of property to religious uses which does hot respect the rights of the local society or religious congregation can be placed within the purview of the statute Brooke v. Shacklett, 13 Gratt. 301.
      Statute Authorizes a “Conveyance,” Not a “Devise.” —The act, Code 1849, ch. 77, § 8 (Va. Code 1887, § 1398), relative to gifts for the use of religious congregations, does not authorize a devise of land, but only a conveyance by deed. Seaburn v. Seaburn, 15 Gratt. 423. Por like interpretation of W. Va. Code, 1899, ch. 57. § 1, which is similar to Va. Statute, see Bible Soc v. Pendleton, 7 W. Va. 79, winch cites Seaburn v. Seaburn, 15 Gratt. 423.
      Bequest of Money — Building Church — Supporting Pastor. — The statute does not authorize a bequest of money to be expended In building a church at a specified place, or for the support of the pastor of such church. Seaburn v. Seaburn, 15 Gratt. 423. See Bible Soc. v. Pendleton, 7 W. Va. 79, for like interpretation of W. Va. Code, ch. 57, § 1, this statute being similar In Its provisions to Va. Code 1887, § 1398.
      Conveyance — Congregation Distinguished from Church at Large. — A conveyance for the use of a particular congregation, in the limited and local sense of the term, that is, for the members, as such, of a certain, defined congregation, who, from their residence at or near the place of public worship, may be expected to use it for that purpose, is valid under Va. Code 1873, ch. 76, § 8 (Va. Code 1887, § 1398).
      If it were for the use of the church in the general sense, as for the use of the Methodist Episcopal Church, such conveyance would be void. Hoskinson v. Pusey, 32 Gratt. 428; Boxwell v. Affleck, 79 Va. 402.
      Deed — Sanctions Minister’s Appointment — Validity.— A deed conveying property in trust for the use of a local society, is not without the operation of the statute, by reason that it sanctions the appointment of the minister and authorizes them to use the house for preaching, even though it be without reference to the wishes of the congregation. Brooke v. Shacklett, 13 Gratt. 301.
      Construction. — No very liberal rule of construction, should be given to the statute, Va. Code 1887, § 1398, but it should be construed according to the general rule. Seaburn v. Seaburn, 15 Gratt. 423.
      
        Division in Church — Property—Retroactive Effect of § 1400, Va. Code 1887. — The provision of Va. Code 1887, § 1400, that in the contingency of a division of any religions society, it should be lawful for a majority to determine to which branch such congregation shall hereafter belong, etc., and should conclude questions as to property held in trust for such congregation, is void when applied to property theretofore granted in trust for a particular congregation, as it alters the terms of the trust and impairs the obligation of the contract, and is repugnant to both the federal and state constitutions. Finley v. Brent, 87 Va. 103,12 S. E. Rep. 228.
      
        b, Books and Furniture. — The statute, Va. Code 1887, § 1401, seems to contemplate books and furniture for the benefit of the congregation, church, or religious society, and their use on the land in the ceremonies of public worship, or at the residence of the minister.
      Same — Uses of Local Society. — The uses mentioned in the statute must belong peculiarly to the local society or “religious congregation” at or near the locality of the property conveyed. Brooke v. Shacklett, 13 Gratt. 301.
      Same — How Acquired. — No. particular mode of acquiring books and furniture (the only chattels allowed to be acquired) is prescribed. It may therefore be by gift or purchase inter ninos or by will. Va. Code 1887, § 1401.
      III. RIGHTS AND POWERS OF CHURCH BODIES.
      Civil War — How Property Rights Affected. — Const, of Va. art. 11, § 8, provides that the rights of ecclesiastical bodies in and to church property conveyed to them by regular deed of conveyance, shall not be affected by the late civil war, nor any antecedent or subsequent event, nor by an act of the legislature purporting to govern the same, but all such property shall pass to and be held by the parties set forth in the original deeds of conveyance, or the legal assignees of such original parties holding through or by conveyance, and any act or acts of the legislature in opposition thereto shall be null and void.
      Powers of General Church Bodies — Transfer of Prop» erty. — where property is given to the uses of a particular congregation, the gift is not to the church in a general sense, because as such it would be void, and the general conference of the church has no power, directly or indirectly, to transfer the property of the congregation. Boxwell v. Affleck, 79 Va. 402; Finley v. Brent, 87 Va. 103,12 S. E. Rep. 228.
      Powers of Majority over Property — Division in Congregation. — Where property is granted in trust for the sole and exclusive benefit oí a certain religious congregation óf a regular orthodox church, and the majority of the congregation leave that church and join another, they cannot take with them the property for the use of the church to which they go. Finley v. Brent, 87 Va. 103,12 S. E. Rep. 228.
      Powers of Majority — Minister’s Right to Preach in Building. — A deed conveyed a house of worship in trust for a local religious congregation. It provided that the trustees should at all times permit the ministers belonging to the church, of-which the local society was a part, and who should be qualified only by the conferences of that church, to preach in the house. Upon a question of the right of a minister to preach in the house, it was held, that such question should be determined by enquiring whether the minister had been appointed and assigned to the society in accordance with the laws of the chnrch, and not whether he represented the wishes of a majority of the members of the society. Brookev. Shacklett, 13 Gratt. 301.
      Powers of Majority — New Organization — Property.— An organized chnrch cannot he divested of its property even though a majority of its members enter into a new organization which adopts the name of the original chnrch; provided the old organization still exists. Venable v. Coffman, 2 W. Va. 310.
      Members Excluded from Buildings — Rights. —When members are improperly excluded from the chnrch buildings they may he restored to their rights and privileges by equitable proceedings. Seepost, “Procedure.” Wade v. Hancock, 76 Va. 620; Brooke v. Shacklett, 13 Gratt. 801; Hoskinson v. Pnsey, 32 Gratt. 428.
      Disregard of Congregation’s Wish — Validity of Gift.— The statute authorizes a gift hy deed in trust for the use of local societies, and such á gift is not void, or without the purview of the statute, because the deed sanctions the appointment of the minister in a certain way without reference to the wish or vote of the congregation. Brooke v. Shacklett, 13 Gratt. 301.
      Title in Trustees — Remains in Trust for Church during Existence. — Where the legal title to property was vested in trustees for the use and benefit of a certain church, it was held that until the title was legally divested, it must continue to be held as a trust for said church so long as it has an existence. Venable v. Coffman, 2 W. Va. 810.
      IV. TAXATION.
      The constitutions of Virginia, art. 10, § 3, and W. Va. art. 10, § 1, provide that property used for religious purposes may he exempted from taxation hy law. In accordance with the constitutional privilege, the legislatures of both states have enacted statutes, Va. Code 1887, §§ 457, 488, W. Va. Code 1899, ch. 29,143, relieving churches from the payment of taxes upon property held for religions uses.
      Constitutionality of Va. Code 1887, §§457, 488. — In passing upon these provisions the court in City of Petersburg v. Petersburg Ben. M. Ass’n, 78 Va. 431, held them to he valid.
      Proceeds of Property. — The court in the above case further held the grant of power to exempt from taxation all property used for benevolent purposes, to carry with it the power to exempt property the proceeds whereof is used for those purposes.
      V. PROCEDURE.
      Churches Hay Sue to Redress Any Wrong or Damage. — A church, although it has uo corporate existence in this state, is clearly recognized by the law of Virginia as being a legal organization, capable of holding property, and it may sue to redress any wrong or damage that it might suffer hy reason of an illegal infringement of its rights relative to property that it may lawfully hold. Perkins v. Seigfried, 97 Va. 444, 34 S. E. Rep. 64.
      How a Church ¡lay Sue — Equity.—A suit may be brought in equity by one member of the congregation suing on behalf of himself and the other members. Perkins v. Seigfried, 97 Va. 444, 34 S. E. Rep. 64; Berkshire v. Evans, 4 Leigh 223; Coffman v. Sangston, 21 Gratt. 263.
      Rights of members — Excluded from Building. — Where members of a congregation are entitled to the use of buildings, and are improperly excluded by the trustees, they may be restored to such rights and privileges by filing a bill in equity for this purpose. Wade v. Hancock, 76 Va. 620; Brooke v. Shacklett, 13 Gratt. 301; Hoskinson v. Pusey, 32 Gratt. 428.
      Suits by Members against Trustee to Compel Proper Application of Property. — See Va. Code 1877, § 1404.
      Recovery of Property — Action of Unlawful Detainer.— Trustees, who are the regularly appointed successors of the original trustees in the deed conveying the property, may'maintain an action of unlawful detainer to recover the possession of the church building. Allen v. Paul, 24 Gratt. 332.
      Sale — Extent of Equity Jurisdiction. — Va. Code 1887, § 1405, authorizes the circuit court of the county or corporation wherein the land lies, upon the application of any member of the congregation, in a proper case, to decree the sale of church property.
      Construing this statute in Linn v. Carson, 32 Gratt. 170, the court said, that the authority given in the instances mentioned in the statute does not exclude the authority of a court of equity in other cases in the exercise of its general jurisdiction to decree a sale. “It may be regarded rather as predicated of the amenability of church property to the general jurisdiction of courts of equity, jusj as the property of other individuals or association of individuals is, and that this section was designed only to give the jurisdiction upon the application of any member of a religions society to effect a sale for the benefit of the society, and for direction to the court in the disposition of the proceeds of the sale.”
      Sale — Powers of Trustees. — A deed conveyed land to certain trustees, on condition that they build thereon, when they thought fit, a church, and permit certain persons to preach in it, and further, to be used “for such other purposes as should be deemed appropriate and necessary to further the cause of Christ.” It contained no covenant to rebuild, on condition that the land revert, upon failure of the trustees to maintain the church. Held, the trustees may sell the land and invest the proceeds in a parsonage for the same congregation, in connection with a new church on a different lot. Hardy v. Wiley, 87 Va. 125, 12 S. E. Rep. 233. As to provisions for sale, see Va. Code 1887, ch. 64.
      Sale — Lien on Church Property. — Where the church discipline gives a lien to parties incurring debt on behalf of the congregation for the payment of the purchase price of lands, or for advancements, or where they have, at the instance of the trustees, made themselves liable for any such debt, a court of equity will enforce such claim. Linn v. Carson, 32 Gratt. 170; Hoskinson v. Pusey, 32 Gratt. 442.
      But compare Clark v. Oliver, 91 Va. 421, 22 S. E. Rep. 175, where it is held, that a court of equity will not in the absence of statutory authority, entertain j urisdiction to enforce a purely legal dem and. The right to charge the property specifically must he first acquired. In the course of the opinion the court cited Linn v. Carson, 32 Gratt. 170, and said that this case rested upon its own peculiar facts. The church discipline gave a “lien.”
    
   DANIEE, J.,

delivered his opinion in the case of Brooke v. Shacklett, but it applies equally to both cases :

In the case of Gallego’s ex’ors v. Attorney General, 3 Eeigh 450, decided by this court in 1832, it was held that the courts of chancery in this state had no jurisdiction to enforce devises and bequests to religious societies or congregations. The court said, that as the statute of charitable uses, 43 Elia, under which alone such vague bequests could be established, if ever in force in Virginia, had been repealed in 1792, in the general repeal of English statutes, charitable bequests were to be treated as standing on the same footing with other bequests. If definite, they were to be treated as trusts which courts of equity would execute by virtue of their ordinary jurisdiction; but if indefinite, they were no longer recognized by law, and could not be enforced: And a devise or bequest of property to or for the uses of a religious congregation was, it was said, of the character last mentioned. It was too uncertain as to the beneficiaries.

The reasoning of the court, it is obvious, applies *with equal force to a conveyance of property to a religious congregation by deed.

I do not deem it at all necessary to en-quire how far the decision in the case just cited may conform to the views of courts elsewhere in respect to this branch of the law, inasmuch as I am not aware that the authority of the case as a true exposition of the law in this state, has been ever seriously questioned. If, therefore, the law now stood as it did prior to the passage of certain acts whose provisions will be presently noticed, I should find no difficulty in holding that the bill of the appellee ought to have been dismissed as stating no case for .the jurisdiction of a court of equity. For though there can be no reverter of the property in question to the grantor or his heirs, inasmuch as the deed purports to be founded on a valuable consideration, and contains a warranty warranting to the trustees and their successors, the property, against the claim of the grantors, their heirs, and all persons claiming by or under them ; Yet the same indefiniteness as to the beneficiaries which defeated the bequest to the Roman Catholic congregation in Gallego’s ex’ors v. Attorney General, is to be found in the deed here, and would present an insuperable difficulty in the way of the court’s undertaking to control the trustees in the performance of their duties, at the instance of a beneficiary in thé deed, whether he claimed a use in the property as a member of the Methodist Episcopal church, or as a member of the congregation of that church, worshiping at Salem church-house. It becomes necessary, therefore, to examine the acts of assembly just mentioned, and to enquire whether the trusts of the deed can be brought within the scope of their provisions.

The first of the acts to which I refer, is the act entitled an act concerning conveyances or devises of places of public worship, passed February 3d, 1842. *This act in substance declares, that where any lot or parcel of land has been heretofore, or shall be hereafter, conveyed to one or more trustees for the use and benefit of any religious congregation as and for a place of public worship, the same and all improvements thereupon shall be held by such trustee or trustees, and their successors, for the purposes of the trust, and not otherwise; that where such conveyance or devise has been heretofore made to trustees, or where such conveyance or devise shall hereafter be made, whether by the intervention of trustees or not, the Circuit superior court of law and chancery for the county or corporation where the property is situate, shall, on application of the attorney for the commonwealth on behalf of the authorized authorities of any such religious congregation, have power and authority to appoint trustees originally where there were none, or to substitute others from time to time, in cases of death, removal from the county or corporation, or other inability to execute the trust beneficially and conveniently; and the legal title shall thereupon become exclusively vested in the whole number of the then trustees, and their successors. The act, after further providing that a majority' of the acting trustees of any such congregation may sue and be sued in relation to the title, possession or enjoyment of such property, concludes with a proviso, that such trustees, for the use of a religious congregation, shall not hereafter take or hold at any one time any tract of land in the country, exceeding in quantity thirty acres, or in any incorporated town, exceeding two acres; and that such real property shall not be held byr them for any other use than as a place of public worship, religious or other instruction, burial ground and residence of their minister. The next in order is the act of 1846-7, which gives to any one or more of the members of any religious congregation the right, in his or their ‘names, on behalf of such congregation, to commence and prosecute a suit in equity against the trustees, to compel them to apply the property for the use or benefit of the congregation, as their duty shall require. In 1849 these acts were substantially re-enacted and are embodied in the Code, in the eighth, ninth, tenth, eleventh, twelfth and thirteenth sections of chapter 77. The only material changes made by these sections of the Code in the provisions of the acts of 1842 and 1846-7, are those to be found in the eighth and tenth sections; by the former of which, validity is given not only to every conve3Tance and devise, but also to every dedication of property for the uses aforesaid; and by the latter of which it is declared that when books or furniture shall be given or acquired for the benefit of such congregation, to be used on the said land in the ceremonies of public worship, or at the residence of their minister, the same shall stand vested in the trustees having the legal title to the land, to be held by them as the land is held, for the benefit of the congregation.

There is, I think, nothing in the language of these laws to show that the legislature designed to confer peculiar benefits on any particular religious sect or sects. And the manifestation of any such design would not only have been utterly at war with the whole spirit of our institutions, but in direct conflict with the letter of the constitution declaring that the legislature “shall not confer any peculiar privileges or advantages on any one sect or denomination. ’ ’ The terms of the acts are broad enough to embrace not only such congregations as may be independent of others, choosing their own pastors, and making the laws for their own government, but also such as may be united with other congregations under a common government, from which they may respectively receive the pastors that are to instruct them or the laws that *are to regulate them, without having any voice either in the selection or appointment of the former, or in the framing or enactment of the latter. And such is, I think, the obvious design of the legislature. The benefits which these acts confer are intended for any and every religious congregation, without regard to the peculiarities of religious faith or the forms of church government. It is, however, equally obvious that the conveyances, devises and dedications to which the acts mean to give validity, are conveyances, devises and dedications of property for the use of the “religious congregations” therein mentioned, in the limited and local sense of the term, viz: for the members (of these religious congregations) as such, who, from their residence at or near the place of public worship, may' be'expected to use it for such purpose. This interpretation is to be drawn from the general tenor of the acts, but more especially from the language of those portions of them that stand in the Code as the eighth and tenth sections of the chapter before referred to. The dedications of real estate must be made for the use of the 1 ‘religious congregation, as a place for public worship, or as a burial place, or a residence for a minister;” and that of the “books and furniture,” “for the benefit of such congregation, to be used on the said land in the ceremonies of public worship, or at the residence of their minister;” uses, which it is plain, from their very nature and the connection in which they are mentioned, must belong peculiarly to the local society, “the religious congregation” at or near the locality of the property conveyed. No dedication of property to religious uses, which does not respect these rights of the local society or religious congregation, no deed which does riot design such enjoyment of the uses of the property conveyed, by the local religious society or congregation, can be placed within the influence and protection, of the statutes.

*The deed under consideration, in its first clause or declaration of trusts, provides that the trustees are to hold the property conveyed to them, and their successors forever, in trust that they shall build or cause to be built thereon a house or place of worship for the use of the members of the Methodist Episcopal church in the United States of America, according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of the said church, at their general conferences in the United States of America; and in further trust and confidence that they shall at all times forever hereafter permit such ministers and preachers belonging to said church, as shall from time to time be duly authorized by the general conferences of the ministers and preachers of the said Methodist Episcopal church, or by the annual conferences authorized by the said general conference, to preach and expound God’s holy word therein.

I am free to admit, that the first impression which this clause of the deed is calculated to make is that of a declaration of trust, not for the benefit of a local society, or congregation of Methodists worshiping or expected to worship at a particular place, but for the benefit of the “Methodist Episcopal church in the United States as an aggregate body or sect,” to the exclusion of any peculiar rights of property in the land conveyed, in such local society .or congregation. And if such is the true interpretation to be given the deed, it would plainly stand, for reasons already mentioned, out of the influence and operation of the statutes. Upon a fuller and more rigid examination of the deed, however, in which I have been much aided by the clear and forcible views presented by Chief Justice Marshall of Kentucky, in announcing the interpretation placed by . the Supreme court of that state, on a deed identical in its features with the deed under Consideration, (see Gibson v. Armstrong, 7 B. Monr. R. 481,) I have come to the conclusion that the deed is entitled to be regarded as substantially a conveyance of the property therein mentioned, to the uses of the local society. And that said property is thus placed within the pale of the statutes.

It is to be observed, as alread3r stated, that the house or place of worship to be erected is to be for the use of the members of the Methodist Episcopal church, &c. ; and as the members of the locdl society are necessarily members of the Methodist Episcopal church, in the sense in which the term is used in the deed, it follows that the land is conveyed for the benefit, to some extent at least, of the local society or congregation. It is to be noted further also, that except upon the happening of a certain contingency, the deed contemplates the perpetual use of the property as a place of worship. And it is obvious, from the nature of things, that the usual occupancy of the property, in attending upon the preaching and exhorations of their minister and in meeting for the observance of the various religious duties and exercises enjoined upon its members by the rules of the church, is one that can be enjoyed only by the local society; and that anj' use or occupancy of the house by other members of the church must be necessarily casual and infrequent; so much as not to interfere with the full use and enjoyment of it as a place of worship by the local members. -Hence it is fairly inferrible that the former use and not the latter was mainly if not exclusively within the contemplation of the parties to the deed. This view is made still more apparent in the subsequent declaration of the trusts. The deed proceeds to provide further, that in case one or more of the trustees die or cease to be a member or members of the said church, the stationed minister or preacher who shall have the pastoral charge of the ^members of the said church, (meaning plainly the society,) is to call a meeting of the remaining trustees, who, upon his nomination, are to appoint one or more. persons, who shall have been one year a member or members of said church, to fill such vacancy: showing that the minister provided for in the deed is to have charge of the members of the local society; who, consequently, are expected to attend upon and receive his religious instructions and ministrations ; and who are thus necessarily the members that are, peculiarly, to enjoy the occupancy of the house as a place of worship. And in the next and last clause, in which, upon a certain contingency, provision is made for the sale of the propert3r for the discharge of debts incurred by the trustees on account of the premises, the surplus arising from the sale, after paying the debts, is directed to be placed in the hands of the steward of the society attending divine service on the premises, and is to be disposed of b3' the next yearly conference, according to the best of their judgment, for the use of said society.

Does .not this provision strongly persuade to the conclusion of a design that, in the event no sale of the property is ever required, or until it is required, the immediate control and peculiar use of the property is to be and remain with the local society, by the contribution of whose members, in the main, (as is stated in the bill and not denied in the answer,) the church-house was erected, and to whose use the surplus proceeds of the property, in the event of a sale, are to be appropriated?

“The primary object of the whole transaction, (in the language of Chief Justice Marshall in the case before cited,) must necessarily have been to provide and secure a place of worship according to the Methodist Episcopal discipline for the local society of that denomination, by and for which contributions *were made, and which was expected to attend worship on the premises. The members of the Methodist Episcopal church at large, not belonging to the local society, can, in a general view, have no other use of the local premises but through the instrumentality of the local society, and by means of the subordination of the local use to the laws and authority of the church at large.”

The provision that the trustees are at all times to permit the ministers and preachers belonging to the Methodist Episcopal church, who shall be duly authorized by the conferences of the church,.to preach in the house to be erected, it is obvious, cannot in any degree detract from the character and effect of the deed as a dedication of property to the use and benefit of a religious congregation, in conformity with the statute. Eor ' the religious congregations, whose worship is not conducted under the lead and instruction of a minister, are comparatively few in number, and it is expressly provided in the statutes, as we have seen, that one of the uses to which the property dedicated may be applied, is, as “a residence for a minister.” The only ground, therefore, on which it can be argued that this feature of the deed places it without the pale of the statute, is, that it sanctions the appointment of the ministers, and authorizes them to use the house for preaching, without any reference to the vote or wish of the congregation. It is true, that under the deed, and according to the rules and discipline therein referred to, the local societies have no voice in the selection of their ministers. But it does not follow that the deed therefore fails to fulfill any requirement of the statute, or is in any regard in conflict with its spirit. It could not have been unknown to the legislature that a large number of the religious congregations in the state are in such predicament ; receiving their ministers from bodies who are bound by no rule *of church government to consult the preferences of the local societies or congregations in appointing the pastors who are to have charge of them. To declare the deed objectionable and invalid because of the feature in question, would therefore be to impute to the legislature the design of making a most unjust and invidious discrimination against all the congregations just mentioned, and in favor of those who have the selection of their own pastors. Such an idea is wholly inadmissible. Upon the whole, therefore, though some of the provisions of the deed, upon a first inspection, did seem to me to look another way, I am satisfied that it does import a substantial dedication of the property therein mentioned to the uses of the local society, and that we cannot reject it, without adopting in respect to it, rules of construction favorable to the defeat rather than the upholding of such instruments: And I cannot see that we have the warrant of any sufficient reason for such a course.

The dangers to be apprehended from church establishments, and the evils lilcelj' to flow from allowing them to.acquire property under such broad powers as were at one time claimed and exercised by the chancellor in England as representing the superintendency of the crown, as parens patriae, over charities, might be very properly looked to and considered by a court engaged, as this court was, in the case of Gallego’s ex’ors v. Attorney General, in enquiring whether it had been left free to exercise a jurisdiction, which when once admitted it had no power to limit by any well ‘defined boundaries. The subject is however presented to our consideration under circumstances wholly different. The transfer and acquisition of property for religious purposes has been made the subject of a legislation in which the extent and the uses to which dedications of this character may be made, are precisely fixed and ascertained. The legislature has declared *that permanency may be legally assured to the houses of worship, the pastoral residences, and the burial places of the various religious congregations of the country. They have given the form and sanction of law to the opinion that the good to the community likely to result from placing the title to such property on a firm and certain footing, and thus putting an end, as far as the law can, to the unseemly disorder that might otherwise arise from leaving it to the uncertain tenure by which it has been hitherto held, is of such character and weight as to overbalance any vague apprehension that the object may not be attained without furnishing occasion for ecclesiastical encroachments dangerous to the institutions of the state. This course of the legislature has been approved by the convention of 1850-51, and in the 32d section of the 4th article of our new constitution it is declared, that the general assembly may secure the title to church property to an extent to be limited by law; whilst an additional guard against the dangers adverted to is thrown around the subject by a provision that there shall not be any grants of charters of incorporation to any church or religious denomination.

In passing now, therefore, on such a deed as the one under consideration, no jealousy of the extension of ecclesiastical power can be properly allowed to exert an influence in the selection of the rules of interpretation to be applied. On the contrary, we should rather favor that interpretation of the instrument which, consistently with the rules of construction, will place it within the operation of the changed policy of our legislation.

The deed being valid, as we must, I think, hold it to be, all doubt as to the jurisdiction of the court is ended; and we have decided which of the two parties litigant are entitled to the use of the property which the deed conveys. There is no dispute between *the parties about any matter of religious faith. The doctrines of the two parties are identical. Neither party denies that the ministers of the other are, in the doctrinal sense of the word, members of the Methodist Episcopal church. But it is most obvious that “simply holding the same faith, without submitting to the government and discipline of a church, cannot make or keep a man a member of that church. To constitute a member of any church, two points at least are essential, without meaning to say that others are not so, a profession of its faith and a submission to its government. ’ ’ Den v. Bolton, 7 Halst. R. 215.

The local society of which both of the parties litigant claim to be members, is not a separate and independent society or congregation making its own laws, but is one of a large number of local societies belonging (prior to a division of the church which will be presently noticed) to the Methodist Episcopal church in the United States. According to the plan of church government,. annual conferences were composed of the traveling' preachers within certain boundaries fixed by the general conference. The preachers were received into the church by the annual conferences, and distributed or assigned to their several charges by the bishops. The general conference was composed of one for every twenty-one members of each annual conference appointed either by seniority or choice at the discretion of each annual conference; Yet so that such representatives should have traveled at least a certain number of years. The general conference elected the bishops, and had “full powers to make rules and. regulations for the church under certain specified limitations and restrictions.’’ The members of the local societies had no right to be represented by delegates either in the annual conferences or in the general conference. They had no voice in making the rules for the government of the church; none in the appointment or selection *of the preacher to whose charge they might be committed. If at any time before the division of the church a controversy had arisen among the members of the society at Salem church-house, in respect to the occupancy of the house — each party under the lead of a preacher claiming its exclusive use for purposes of worship — the dispute must have been determined by enquiring, not which of the two parties constituted a majority, or represented the wishes of a majority, of the members of the society, but which of the two preachers had been appointed and assigned to the society in accordance to the laws of the church; which of the two parties was acting in conformity with the discipline of the church, and submitting to its lawful government.

These views conduct us necessarily to the enquiry as to what effect the division of the church is to have on the control of the uses of the houses of worship by the local societies.

I do not deem it necessary to go into,any statement of the causes which led to this division, which was effected under certain resolutions adopted by the general conference in 1844. The resolutions are preceded by a preamble setting forth that a declaration had been presented with the signatures of fifty-one delegates of the body from thirteen annual conferences in the slaveholding states, representing that for various reasons enumerated, the objects and purposes of the Christian ministry and church organization could not be successfully accomplished by them under the jurisdiction of the general conference as then constituted ; and that in the event of a separation, a contingency to which the declaration asked attention as not improbable, the conference esteemed it a duty to meet the emergency with Christian kindness and the strictest equity.

The first resolution declares^ that should the delegates *from the annual conferences in the slaveholding states find it necessary to unite in a distinct ecclesiastical connection, the following rule shall be observed with regard to the northern boundary of such connection: All the societies, stations and conferences adhering to the church in the south by a vote of a majority of the members of said societies, stations and conferences, shall remain under the unmolested pastoral care of the southern church (and the ministers of the Methodist Episcopal church shall in no case attempt to organize churches or societies within the limits of the church south; nor shall they attempt to exercise any pastoral oversight therein, it being understood that the ministry of the south reciprocally observe the same rule in relation to stations, societies and conferences adhering by vote of a majority to the Methodist Episcopal church) ; provided also that this rule shall apply only to societies, stations and conferences bordering on the line of division, and not to interior charges, which shall in all cases be left to the care of that church within whose territory they are situated.

By the second resolution it is declared that ministers, local and traveling, of ever3r grade and office in the Methodist Episcopal church may, as they prefer, remain in that church, or, without blame, attach themselves to the church south.

And by the ninth it is declared that all the property of the Methodist Episcopal church, in meeting-houses, parsonages, colleges, schools, conference funds, cemeteries, and of every kind, within the limits of the southern organization, shall be forever free from any claim set up on the part of the Methodist Episcopal church, so far as this resolution can be of force in the premises.

In Ma3r of the following 3rear (.1845) delegates, regularly appointed by the several annual conferences of *the Methodist Episcopal church in the slaveholding states, met in Eouisville, Kentucky, in a general convention, and adopted b3' a vote (of ninety-four to three) a resolution by which they declare the jttrisdiction hitherto exercised over said annual conference by the general conference of the Methodist Episcopal church entirely dissolved; and that said annual conferences shall be and they hereby are constituted a separate ecclesiastical connection under the provisional plan of separation aforesaid, and based upon the discipline of the Methodist Episcopal church, comprehending the doctrines and entire moral, ecclesiastical and economical rules and regulations of said discipline, except only in so far as verbal alterations may be necessary to a distinct organization, and to be known by the style and title of the Methodist Episcopal church south.

If this division of the Church was lawful, it is obvious, I think, that the members of the local societies in the southern organization of the church stand in the same relation to the general conference, the annual conferences, the bishops, pastors, rules and discipline of the Methodist Episcopal church south, that they occupied before the division, in respect to those of the Methodist Episcopal church. There has been no change of faith, no change of doctrine, no change of discipline, no change in the mode of administering it: All remain as before. By the express terms of the plan of separation, no blame is to be attached to the pastors in the south for adhering to the church south; and the members of the local societies are to remain under the unmolested care of the southern church, as they were before under that of the Methodist Episcopal church. And the southern church is to occupy the same relation to the church property in the south that the Methodist Episcopal church before occupied in respect to it. If the division has been lawfully effected, why may not a controvers3r among the local *members of a society in respect to the use of the church property be settled by a resort to the same mode of enquiry, (merely changing the name of the church,) that would have determined it before? Upon the- hypothesis that the plan of separation is constitutional, the questions upon which such a controversy would now turn, would be, Which of the two parties is in regular connection with the Methodist Episcopal church south, recognizing its discipline, submitting to its government, and receiving its pastors? Those who can identify themselves with the party indicated in the enquiry, are entitled to the use of the property.

We have still to enquire, Whether the general conference of 1844 had the power to adopt the resolutions authorizing the division? If I had the largest freedom of time and space, I should not desire to pursue any very extended course of statement or of argument in considering this question. And I do not think that there is any necessity for my doing so. The question is one which has been deemed for some years past of such public concernment, of such vast importance in its bearing on the rights, interest and feeling of a large portion of the community, as to have been made the subject of the fullest examination. The zeal, ability and research of the most eminent men of the bar and of the church have been enlisted in its discussion. No fact or argument that could elucidate the subject remains to be stated or urged. Not only so, but the question has been decided by the Supreme court of Kentucky and by the Supreme court of the United States, upon such mature deliberation and with such unanimity, in each case, as to leave but little room for hesitating as- to the propriety of regarding the question as settled. In each case the validity of the plan of separation was sustained. Smith v. Swormstedt, 16 How. U. S. R. 288; Gibson v. Armstrong, 7 B. Monr. R. 481.

*I deem it necessary to say but little more than that I concur in these decisions. I have not been able to perceive on what ground it is to be maintained that the general conference of 1844 was not invested with as full powers over the subject as any general conference that preceded it. The six restrictive articles adopted by the conference of 1808 and by succeeding conferences manifestly contain no limitation of power that can bear on the question. The ministers and preachers in whom resided the supreme power, had, when they assembled in 1784 to frame a government for the church, full power to place it under one or two or a still greater number of general organizations, if they had believed that the interests of the church woul'd be thereby promoted. And I do not see how it can be said that the general conferences of 1792, 1796, 1800, 1804 and 1808, composed as they were of the body of the ministers and preachers, did not each have the same power. And when they determined . at the last mentioned conference (1808) to meet no longer en masse, but thereafter, by a delegation from their own body, the provision, which they adopted, that the general conference should have full powers to make rules and regulations for the church, under the limitations and restrictions contained in the six restrictive articles just mentioned, amounted in substance to an authority to the delegates in conference thereafter to exercise all the powers (except those prohibited in said restrictive articles) that could at any time have been exercised by a full conference of all the ministers and preachers. No further limitation on the powers of the general conference having been subsequently made, it seems to me that the conference of 1844 was clothed with the power which it claimed and exercised.

The Baltimore conference sent no delegates to the Ivouisville convention, and in 1846 adopted resolutions ^declaring that they still regarded themselves a constituent part, of the Methodist Episcopal church in the United States. By virtue of this action of said conference, the society at Salem church being within 'the limits of that conference, would have been left to ■stand in connection with the northern division of the church, as they stood before the division of the church; and the appellants, under the influence of the principles which I have endeavored to establish, would thus have been entitled, though a minority, to prevail in this controversy were it not for "the provision in the first resolution of the plan of separation, by which the border societies have a right, by vote of a majoritj1- of its members, to choose to which jurisdictional division of the church they will belong. The members of Salem church, at a meeting which seems to have been fairly conducted, have determined, by a majority vote, to adhere to the church south.

A still further question, however, remains to be settled, viz: Whether this is a border society? The boundaries of the annual conferences have been from time to time fixed by the general conference, but no boundaries have been fixed for the societies, stations and circuits. In this state of things, it is obvious that in some cases it may be extremely difficult, if not impracticable, to carry out the plan of separation. It is next to impossible to lajr down any general rule by which to define a border societj'. In some cases, however, as in the case of the Maysville Church, in 7 B. Monr. R. 481, and in the case of Clift Church, (which was argued with this,) the proximity of the houses of wqrship to a common boundary of two conferences was so close that no question seems to have arisen as to the claim of the societies to be regarded as border societies, in the meaning of the resolutions.

One of the witnesses expresses the belief that Salem society is not a border society, and that a portion of *Warrenton circuit is interposed between it and the Rappahannock river, which is the common boundary of the Virginia and Baltimore conferences. But some five or six other witnesses express the belief that Salem is a border society, and that no portion of the country between the church and the river is attached to the Warrenton circuit. The weight of this testimony is in favor of the proposition that it is a border society; and upon a question of the kind the conduct of the parties interested, as showing how they have regarded the matter, is entitled to much weight. The minority, by-going into a vote on the question, have treated it as one on which a vote might be properly taken; which would not be the case on any other hypothesis than that of the society’s being a border society. And it seems to me, therefore, that this conduct of the parties, taken in connection with the other proofs in the cause, justifies us in treating this as a border society.

By the vote of a majority, the society has been placed, in the manner contemplated and allowed by the plan of separation, in jurisdictional connection with the ecclesiastical government of the Methodist Episcopal church south; which, by virtue of its organization under said plan, is now the lawful successor of the Methodist Episcopal church in respect to the disciplinary control and protection of the members of the church adhering to the southern division. And such members have now the same right to enjoy the church property which was held by their societies before the division, in exclusion of those who repudiate the authority of the Methodist Episcopal church south, and refuse to receive the pastors appointed by it, that they had, before the division and whilst in connection with the Methodist Episcopal church, to enjoy said property in exclusion of any who might have refused *to submit to the discipline and to receive the preachers of said last mentioned church.

Such being the views which I have taken of the case, it seems to me that the decree of the Circuit court is erroneous, and ought to be reversed, and that the bill should be dismissed.

LEE and SAMUELS, Js., concurred in the results of the opinion of Daniel, J., but not in the views or reasoning.

ALLEN, P., and MONCURE, J., concurred in the opinion.

Decree reversed.  