The opinion
CONCURRING- OPINION.
Mr. Justice La,nsden
delivered the following concur-’ ring opinion:
I concur in the result reached by the court in this case, but I desire to state the reasons of my concurrence in the result, as well as to express my disagreement with what appears to be a statement of general principle applicable to this and like controversies in the opinion of Mr. Justice Neil.
I do not believe that Landrith v. Hudgins should be overruled at this time. The unfortunate controversy arising between a faction of the Cumberland Presbyterian Church and the Presbyterian Church of the United States of America has been waged for a number of years, both in and out of the courts, and has been marked with a spirit of acrimony that is not creditable to the cause of Christianity.
Since the decision of Landrith v. Hudgins, the disputants have, in a large measure, conformed themselves to the results declared in that case, and no good could arise to any of the parties, or to the great cause which they represent, to reopen the controversy.
_ Still I believe it proper to say that, in my opinion, Landrith v. Hudgins was decided contrary to the great weight of authority, and is unsound upon principle. It is practically nothing more than a comparison of creeds and a substitution of the opinion of a majority*of this *467 court upon theological controversies for the opinion of the highest courts of the two churches, which were created by the disputants themselves for the settlement of such controversies. Differences of opinion have always existed upon theological questions, both in and out of the church, and in the very nature of things it is a matter that cannot be settled with any degree of certainty beyond a mere opinion upon questions which are inherently uncertain within themselves. It is a bold thing for a civil court to undertake to investigate and determine for itself, in opposition to the expressed opinion of trained theologians, questions of this character. More especially is this true when the two highest courts of the disputants have reached an agreement, after a discussion of the question covering a period of years, which finally resulted in a submission to the constituent bodies of each church of the question which this court now determines was wrongly decided by the churches themselves. The case of Landrith v. Hudgins stands alone.
It is also my opinion that the complainants Bonham and McLaughlin are estopped to maintain this bill. This is not important, so far as the result of the case- is concerned, as many of the complainants have done nothing upon which an estoppel against them could be based. Unless a different rule is to be applied to this class of litigation, it would seem clear that where officers of the congregation conform to the church services after the union, and subscribe to the church funds and take part in the various acts of the governing bodies of the church, *468 with full knowledge that it was claimed by their associates that the union had been effected, they would be estopped. Especially is this true where no expression of dissent was made upon their part. This clearly indicates a willingness upon their part to enter into and acquiesce in' the attempted union, and having done this with full knowledge of all the facts, under well-settled principles of equity, they could not be heard later to say to the contrary. While the opinion does not expressly support the proposition herein stated, there is a clear assumption that this might be true.
The opinion, however, states the true principle to be: “Where an attempted union 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 unanimous consent of the members of the church. Until such unanimous consent is had, the property is not transferred from one organization to the other, and prior to that time any member or members can signify dissent and retain the property in the old organization.”
As a'general statement of principle governing cases of this kind, I think the foregoing is correct, and would determine the legal title to the church property. However, the word consent should be understood in its substantive sense, and should be equivalent to acquiesce. Formal positive consent should not be required, and no length of time is necessary to establish consent. , If the members of a congregation, with full knowledge of all the facts, *469 acquiesce in the conduct of the governing authorities of the congregation whereby an unequivocal purpose to devote the church property to the uses of the Presbyterian Church is clearly manifested, they should be deemed to have consented. I understand the opinion to concede that there may be an acquiescence for such length of time in the action or course of conduct of the 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 church affiliation to another. This is correct, except so far as it may imply the necessity of any particular length of time of acquiescence to establish the consent. Time is not necessarily a material element of such acquiescence. If the facts are known and fully understood, and are sharply brought to the attention of the congregation, it is incumbent qpon those who may desire to object to the conduct of the. majority to do so. In my opinion, these principle are so familiar and elementary that citation of authority is unnecessary.