Dix v. Pruitt, (No. 368.)

• Docket Nº: (No. 368.)
• Citation: 138 S.E. 412
• Case Date: June 10, 1927
• Court: United States State Supreme Court of North Carolina

138 S.E. 412
(194 N. C. 64)

DIX et al.
v.
PRUITT et al.

(No. 368.)

Supreme Court of North Carolina.

June 10, 1927.

Appeal from Superior Court, Bockingham County; Harding, Judge.

Action by W. G. Dix and others against B. H. Pruitt and others. A judgment setting aside a verdict for plaintiffs as a matter of law was reversed (192 N. C. 829, 135 S. E. 851), following which judgment was entered for plaintiffs, and defendants appeal. Affirmed.

This was an action brought by plaintiffs for possession and control of the church property of Dan Biver Primitive Baptist Church, and to restrain the defendants from

[138 S.E. 413]

interfering with the use and' control of said church. The pertinent facts are contained in Dis v. Pruitt, 192 N. C. 829, 135 S. E. 851, and are as follows:

"The Dan River Primitive Baptist Church was organized in Buffin township, Rockingham county, in 1884, and in 1900 it bought land and a church building and had the conveyance made to R. H. Pruitt and TV. G. Dix as trustees. This church was governed by the rules, customs, and usages of the regularly constituted Primitive Baptist denomination, some of which were written and some unwritten. One of the usages is that when a member has been excluded from one church he cannot unite with another of the same faith without first being restored by the church of which he had been a member, and the church that expelled him must withdraw fellowship from any other Primitive Baptist Church that receives him in disregard of the usage. In 1920 J. E. Wilson was called by the Dan River Primitive Baptist Church as its pastor. He had theretofore been a member of the Danville Primitive Baptist Church, and had been excluded from its membership. At the time he was called by the Dan River Church he was not a member of either of these churches. It is alleged that his credentials had been canceled and that he was no longer qualified under the usages of the churches to serve in the capacity of pastor. At a meeting of the Dan River Church held in September, 1923, objection was made to Wilson, as pastor, but it was contended that a majority of those present voted to retain him, and he has since continuously held possession of the church property to the exclusion of the plaintiffs. On October 9, 1923, the plaintiffs 'declared nonfellowship' with the defendants and those united with them in interest. In the Dan River Church there are two factions, one seeking to exclude the other and to recover the church property, and the other retaining possession and denying the plaintiffs' right to recover.

"Issues were submitted and answered as follows:

"(1) Were the plaintiffs and those united with them the sole and only members of the Dan River Primitive Baptist Church on October 9, 1923? Answer: Yes.

"(2) Are the plaintiffs and those united in interest with them entitled to the possession of the Dan River Primitive Baptist Church and its records, as alleged in the complaint? Answer: Yes.

"The verdict was set aside as a matter of law."

Upon the former appeal this court reversed the judgment of Lane, J., which set aside the verdict as a matter of law for the reason set forth in the opinion. Thereupon, at the February term, 1927, the parties appeared before Judge Harding at the regular term of Rockingham superior court, who entered the following judgment:

"This cause coming on to be heard, and it appearing to the court that it was heard before a judge and jury at the February term, 1926, of Rockingham superior court, and that the jury answered the issues submitted to them as follows:

"(1) Were the plaintiffs and those united with them the sole and only members of the Dan River Primitive Baptist Church on October 9, 1923? Answer: Yes.

"(2) Were the plaintiffs and.those united in interest with them entitled to the possession of the Dan River Primitive Baptist Church and its records as alleged in the complaint? Answer: Yes.

"And it further appearing to the court that, upon the coming in of the verdict of the jury, his honor, Judge Lane, set aside the verdict as a matter of law; that the plaintiffs appealed to the Supreme Court, and that judgment was rendered in the Supreme Court; that there was error, in that his honor set aside the said verdict as a matter of law, and judgment has never been entered upon the verdict of the jury appearing of record, it is therefore, upon motion, ordered, adjudged, and decreed that the plaintiffs and those united with them were the sole and only members of the Dan River Primitive Baptist Church on October 9, 1923. It is further ordered, adjudged, and decreed that the plaintiffs and those united in interest with them are entitled to the possession of the Dan River Primitive Baptist Church and its records, the said Dan River Primitive Baptist Church consisting of the real estate described in the deed recorded in the office of the register of deeds of Rockingham county, N. C, in Book 128, p. 97, as well as the buildings thereon, and in addition thereto plaintiffs are entitled to the possession of all records, books, and papers of said Dan River Primitive Baptist Church now in the hands of the defendants.

"And it is ordered, adjudged, and decreed that the defendants and those united with them immediately surrender to the possession of the plaintiffs and those united in interest with them the said real estate, and the Dan River Primitive Baptist Church and its records, to the end that said real estate, church property, and records may be used for church purposes in accordance with the rules, customs, usages, and faith of the Primitive Baptist Churches, and the defendants and all persons are now and forever enjoined from interfering with the plaintiffs and those united in interest with them in the use and control of the church property aforesaid and the records thereof, and are forever enjoined from preventing the plaintiffs and those united in interest with them from using said real estate and the church for public worship and for church purposes in accordance with the rule, customs, usages, and faith of Primitive Baptist Churches.

"It is further ordered that the clerk of this court, in the event the defendants fail to surrender possession as aforesaid to the plaintiffs, issue a writ of assistance directed to the sheriff of Rockingham county, directing said sheriff to take over and give to the plaintiffs the possession of said real estate, church, and records aforesaid, shall not be issued until further orders of this court.

"It is further ordered that the defendants pay the costs of this action to be taxed by the clerk."

[138 S.E. 414]

From the foregoing judgment the defendants appealed, assigning errors.

Sharp & Crutchfield, of Reidsville, and King, Sapp & King, of Greensboro, for appellants.

P. W. Glidewell, of Reidsville, and Brooks, Parker, Smith & Hayes, of Greensboro, for appellees.

BROGDEN, J. The question of law at issue is clearly and succinctly stated in the brief of the learned counsel for defendants in the following language:

"The question in this case involves the determination of which faction of the divided congregation of the Dan River Primitive Baptist Church shall have the use, custody, and control of the church property. The division grew out of a dissension in the congregation concerning the matter of discipline and church government, and the question is presented whether the majority faction, represented by the defendants who are in possession of the church property, have the right under the organization of the Primitive Baptist Church to continue in the possession and control, or whether they may be enjoined from interfering with the plaintiffs in the use and control of the church property, on the ground that the plaintiffs are adhering to the proper principles of government and discipline maintained in the Primitive Baptist Church, and that the defendants are not so abiding by those principles."

It was alleged in the complaint that the Dan River Primitive Baptist Church was organized in 1884, and—

"has at all times since then and is now a duly and regularly organized church of the Primitive Church faith. That said Dan River Primitive Baptist Church has at all times been conducted and governed by the rules, customs, and usages which control Primitive Baptist Churches. And the government of said Dan River Primitive Baptist Church at all times has been the same as all other Primitive Baptist Churches, being governed by the rules, customs, and usages which have been adopted and which were in force among the Primitive Baptist Churches, all of which had their origin in and were the outgrowth of the first or original Primitive Baptist Church established in this country."

The defendants, in their answer, admit that "said Dan River Primitive Baptist Church has at all times been conducted and governed by the rules, customs, and usages which control Primitive Baptist Churches." It is further averred that—

"The defendants have at all times and are now conducting the Dan River Primitive Baptist Church in exact accord with the rules, customs, and usages of the original Primitive Baptist Church established in this country."

Upon these allegations and admissions two questions immediately arise: (1) What are the rules, customs, and us ages which control Primitive Baptist Churches?

(2) What is the relation of these rules, usages, and customs to the independent governmental sovereignty of a Primitive Baptist Church?

The rules appearing in the evidence, bearing upon this controversy, are as follows:

(a) All business of the church shall be decided by a majority vote, except...