#### The Leland Norwegian Lutheran Congregation in Winnebago County, Iowa, Appellant, v. L. L. Larson.

Church Subscription: condition: enforcement on payment. Where one agrees to pay a sum of money for the benefit of a church organization, conditional on the formation of a congregation entirely independent of the churches from which its membership is drawn, and the organization thereafter separates along the line of former church goyernment and divides its property, payment of the subscription cannot be enforced.

*Appeal from Winnebago District Oourt.*— Hon. J. F. Clyde, Judge.

Thursday, October 8, 1903.

Action at law to recover oí the defendant $75 sub scribed toward the building of a church. Trial to the court, and judgment for the defendant. The plaintiff *appeals.*

Affirmed.

*O. H. Belsheim*for appellant.

*JEL. A. Brown*for appellee.

SheRwin, J.

The Synod Lutheran Church and the United Lutheran Church are wholly distinct and separate church organizations, having different governing bodies, and different confessions. Both, however, base their faith and teachings on the Bible and on the same canonical and symbolical books. There is some difference in the doctrinal belief of the two churches, but there is no material difference in their form of service or in their church government. In the early summer of 1898, members of both churches, residing in and around Leland, agreed to unite and form a congregation which should be entirely free and independent, absolutely nonpartisan, and without affiliation with either tne Synod Luthern Church or the *152United Luthern Church. Pursuant to this agreement, a corporation was formed, which included members of both churches, and subsequently subscriptions were secured for erecting a place of worship; the defendant being among the subscribers thereto, and a member of the Synod Lutheran Church. When the church building was partially completed, and on the 2d of November, 1898, the members of the congregation met for the purpose of selecting a paster to minister to the moral and spiritual welfare of the new congregation. They could not agree, however, and divided along the line of previous church connections. It was then mutually agreed that it would be better to separate, and to divide the property held in common, and an agreement was reached whereby the United Lutheran people were to keep the building, and to xoa.y the Synod Lutheran people, who withdrew, the sum of $800, and, in addition thereto, to return the subscriptions paid by them. This agreement was carried out in good faith and temper, and afterwards the Synod Lutheran Church congregation of that locality built a church of its own, and the plaintiff is in fact under the government of the United Lutheran Church. The evidence conclusively-shows that the defendant’s subscription was conditioned upon the establishment of a congregation"entirely free and independent of tiie churches from which its membership was drawn, .and that such condition was not performed, because the building so built is not now owned or used by the congregation for whose benefit the subscriptions were made. This, alone, would be sufficient to defeat a- recovery by the plaintiff. *M. E. Church v.*Sweny, 85 Iowa, 627; *Keys v. Weaver,*95 Iowa, 13. That such was the understanding of all parties at the time of the separation and division on the 2d of November admits of no doubt, and that the plaintiff does not now represent such a congregation as was contemplated by the subscriptions is equally as clear.

The judgment of the district court is therefor aittirmed.