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exceeded his authority,38 or whose result was not properly registered 37 or properly certified,38 or whose result was not affected by the illegal votes,39 have been upheld by the courts.
Nor does the number of votes cast at such an electon as compared with the number of persons entitled to vote make any difference. The number of votes cast is to be considered "as constituting the number of legal voters belonging to the church.''40 This principle is strikingly illustrated in a series of cases growing out of the dissension which rent the United Brethren in Christ in twain during the last decade of the last century. The question of adopting a new constitution had been submitted to the 200,000 odd numbers of the church, but little more than 50,000 voted on the proposition at all. An overwhelming majority of the votes cast being in favor of the new constitution, it was declared adopted by the church authorities, which declaration was seconded, with one exception, by the numerous civil courts to which appeal was made by the dissatisfied minority.41 It has therefore been said that in all elections the non-voting must be counted as willing to be bound by the action of the majority of those who vote and that a refusal to vote is "an ineffectual kind of opposition."42
However, even if the election has been very irregular,
this fact will not necessarily affect the de facto as distinguished from the de jure status of the officers. Provided that he is not a mere intruder without color of right43 whose claims have been resisted from the beginning and whose possession of the church property has been obtained by force44 he will be considered and treated as a de facto officer possessed of all the powers of a de jure officer. "Persons who are in the open and peaceable exercise of the powers and duties of officers in a corporation are presumed to have been duly elected and to be entitled to the positions they occupy. Strangers cannot be permitted to contest their title or to impeach the validity of their acts, by showing irregularities in their election or in any of the antecedent proceedings of the corporation.''45 While therefore it is not enough that the claimant claims that he is an officer, or that some people think that he is an officer, or that he assumes to act as such, it is sufficient if he acts as an officer under color of having been rightfully elected or appointed.46 Persons may therefore be de facto officers though they are chosen on a movable instead of a fixed date,47 or under an illegal by-law,48 or at a meeting not properly noticed,49 or fraudulently conducted,60 or improperly presided over,51 or though they are merely hold-over officers 62 or have been appointed by a court instead of being elected by the congregation.53 Such persons may establish
«Zion M. E. Church v. Hillery, 51 Cal. 155; Berrlam v. New York Methodist Society, 4 Abb. Pr. 424 (N. Y.)
44 Reformed Methodist Society v. Draper, 97 Mass. 349, 353.
••5 Reformed Methodist Society v. Draper, 37 Mass. 349, 352.
4e East Norway Lake Norwegian Ev. Luth. Church v. Halvorson, 42 Minn. 503, 506, 44 N. W. 663, 665.
47 People v. Runkel, 9 Johns 147 (N. Y.)
48 st. Luke's Church v. Mathews, 4 S. C. Eq. (4 Desaus) 578.
49 Green v. Cady, 9 Wend. 414; First Presbyterian Society v. Langley, 25 Ohio St . 128; West Koshkonong Congregation v. Ottesen, 80
Wis. 62, 49 N. W. 24; Reformed
so All Saints Church v. Lovett, 1 N. Y. Super. (1 Hall) 191.
si Vernon Society v. Hills, 6 Cow. 23; All Saints Church v. Lovett, 1 N. Y. Super. (1 Hall) 191.
»2 Reformed Dutch Church of Prattsville v. Brandow, 52 Barb. 228. In this case there had been no election for nine years. See Congregational Society of Bethany v. Sperry, 10 Conn. 200; Hendrickson v. Decow, 1 N. J. Eq. 577; People v. Runkel, 9 Johns 147.
53 Lovett v. German Reformed Church, 12 Barb. 67.
their de facto status by parol evidence,54 may accept service for the corporation,58 bind it by contract56 and begin suit for it.57 They have the power to pass on their office unimpaired to their de jure successors58 and cannot be dispossessed of it except by such successors duly qualified5' or by the state in a direct action to try their right to hold the office.60
Passing now to the duties of church officers these duties which refer to the church property naturally receive the greatest attention by the courts. It is fundamental and elementary that church trustees are entrusted with the care, management and in many cases with the legal title of the church property. When the church is unincorporated the real estate which it may have an interest in of necessity must be held by some person or persons in trust for it. The same holds good in States in which the trustees are the only members of church corporations. In such States they are "the legal owners of the property which the act of incorporation authorizes them to hold, to be used for the purposes specified in the charter. They are the sole temporal administrators, and cannot be controlled, by the clergy in their administration. They are responsible to the congregation only, who may choose others, if those in authority shall misuse or abuse the powers conferred by the legislature."61 But their situation is not greatly different so far as possession of the church property is concerned in states in which the aggregate theory of such corporations has supplanted the trustee theory. "There
"Walrath v. Campbell, 28 Mich. 115; Berrlam v. New York Metho
111. dist Society, 4 Abb. Pr. 424;
33Berriam v. New York Metho- Concord Society of Strykersville v.
dist Society, 4 Abb. Pr. 424 (N. Y.) Stanton, 38 Hun. 1; Zion's Church
ssBatterson v. Thompson, 8 v. Light, 7 Pa. Super. Ct. 223, 42
Phila. 251, 1 Leg. Gaz. R. 171. W. N. C. 251. See Connitt v. Re
5' Zion's Church v. Light, 7 Pa. formed Protestant Dutch Church,
Super. Ct. 223, 42 W. N. C. 251. 54 N. Y. 551, 568, affirming 4 Lans.
Smith v. Erb, 4 Gill 437 (Md.) 339.
•'>» Appeal of Nolde, 2 Monag. 169 «i church of St. Francis of Pointe
(Pa.), 15 Atl. 777, affirming 4 Lane Coupee v. Martin, 43 La. (4 Rob.)
Law Rev. 347. 62, 67, 68.
«o Jackson v. Nestles, 3 Johns
is one principle common to the trustees of all incorporated churches. They have the possession and the custody of the temporalities of the church. They are considered virtute officii entitled to the possession and are lawfully seized of the grounds, buildings and other property belonging to the church. Though they hold the church property in trust for the congregation, still, it is their possession, and the courts are bound to protect them against every irregular and unlawful intrusion made against their will, whether by the pastor, members of the congregation, or by strangers."62
Since, however, church buildings actually stand empty the greater part of the time, the possession which the law thus casts upon the trustees is largely a constructive one. They are in possession "by reason of having the right of possession."63 Though their possession consists only of the ordinary use which is made of church property for divine services and Sunday-school purposes,04 it will nevertheless carry the same legal consequences as actual continuous possession of ordinary residence property,65 will include such of the land on which the building is standing as is used for purposes connected with it66 and will be notice to a purchaser of it.67 Such possession may be maintained by a clergyman as the agent of such trustees68 and may be defended by the trustees against the trespass of strangers69 representatives of the members70 and even the clergyman of the congregation71 by action of trespass dare clansum
62 German Evangelical Congrega- Macon v. Sheppard, 21 Tenn.
tion of Lafayette v. Pressler, 17 La. (2 Humph) 335.
Am. 127, 129; People v. Runkle, 9 as Probst v. Domestic Missions of
Johns 147, 156 (N. Y.) 'Presbyterian Church, 3 N. M. 373,
63 People v. Runkle, 8 Johns 464, 5 Pac. 702; Heiss v. Vosburg, 59
469. Wis. 532,. 18 N. W. 463.
04 Whitsltt v. Preemption Pres- s'.> First Parish of Shrewsbury v.
byterian Church, 110 lll. 125. Smith, 31 Mass. (14 Pick) 297.
"5 Randolph v. Alexander, 8 Tenn. TM Howard v. Haywood, 51 Mass.
(Martin & Yerger), 58, 60; Macon (10 Met) 408.
v. Shephard, 21 Tenn. (2 Humph) 71 German Evangelical Congrega
335. tion of Lafayette v. Pressler, 17 La.
no First Parish in Shrewsbury v. Am. 127; People v. Runkle, 8 Johns
Smith, 31 Mass. (14 Pick) 297, 301. 464, s. c. 9 Johns 147. (N. Y.)
fregif2 by injunction proceedings73 and even through indictments for a forcible entry and detainer.74
Real property, however, is not generally the only earthly possession which churches enjoy. While churches owning stocks and bonds and other forms of investments are rare almost all, even the humblest, will own articles of personal property such as altar pieces, communion plate, record books and the like. There can be no question that such articles in the absence of a by-law giving their control to some particular officer are to be kept and controlled by the trustees. This has been held or intimated in cases involving communion plate,75 church records,76 melodeons,77 corporate seals78 and funds collected for a particular purpose by a committee79 or by a ladies' society or a similar instrumentality of the church.80 Such personal property does not enjoy the protection of the ancient Spanish law which regarded it as holy, sacred and religious, and may, therefore, be sold,81 though courts will hesitate to affirm such sale when it has been effected by execution.82
It will sometimes be a question of intention whether bells used by a church are its property or are real or personal property83 or whether even the church building itself
12 Howard v. Haywood, 51 Mass. "M. E. Church of Cincinnati v.
(10 Met) 408; First Parish of Wood, 5 Ohio 283; First Church of
Shrewsbury v. Smith, 31 Mass. (14 Christ Scientist v. Schreck, 127 N.
Pick) 297; Green v. Cady, 9 Wend. Y. Supp. 174, 70 Misc. Rep. 645.
414; Walker v. Fawcett, 29 N. C. so First Baptist Church in Frank
44. lindale v. Pryor, 23 Hun. 271; Brls
73 German Evangelical Congrega- tor v. Burr, 120 N. Y. 429, 24 N. E
tlon of Lafayette v. Pressler, 17 La. 937 affirming 12 N. Y. St. Rep. 638
Ann. 127. See First Constitutional Presbyte
People v. Runkle, 8 Johns 464, rlan Church v. Congregational So
8. c. 9 Johns 147. (N. Y.) ciety, 23 Iowa 567; Eis v. Croze,
"Page v. Crosby, 41 Mass. (24 149 Mich. 62, 112 N. W. 943; KenPick) 211; Stebbins v. Jennings, 27 dall v. Calder, 2 Posey Unreported Mass. (10 Pick) 172. Cas. 732 (Tex.)
"Sawyer v. Baldwin, 28 Mass. H1 Ternant v. Bondreau, 45 La.
(11 Pick) 492; First Parish in Sud- (6 RoD ) 488
bury v. Stearns, 38 Mass. (21 Pick) 'HnrriiP R2 N C 241
Barb 49e61YOUn68 * RanS°m'" 33 Am R^ "83
"Shipton'v. Norrid, 1 Colo. 404. "Fourth Parish in West Sprlng
"Protestant Episcopal St. Steph- field v. Root, 35 Mass. (18 Pick)
ens Church v. Blackhurst, 11 N. Y. 318; Congregational Society of Du
Supp. 669. buque v. Fleming, 11 Iowa 533.