¶1 dissenting. I dissent. This is a proceeding to enjoin the trustees of a school district from pulling down and carrying away a building' formerly used by the school district as a schoolhouse.
¶2 The plaintiff alleges that they and others subscribed certain sums of money to build a schoolhouse on the grounds of the Reedy Creek Presbyterian church. That house was-destroyed by fire, and a new bulding was erected. The plaintiffs subscribed to- the new school building. The church needed a new building and sold the new schoolhouse, used the proceeds of sale in the erection of a new church, and turned over the old church building to the school district to be used as a schoolhouse, reserving the right to use it for certain church purposes. The old church was then used as a schoolhouse for some years. The school districts were consolidated and büilt a new schoolhouse on another location. The church then turned over the old church schoolhouse to the school district to be sold and the. proceeds •applied to the new schoolhouse. The plaintiffs, who were •subscribers to the funds with which the schoolhouses were built, bring this proceeding to enjoin the removal of the church schoolhouse, claiming that its removal was in contravention of a written contract between the subscribers to the school fund and the church. These subscribers were members of this church and got the benefit of the schoolhouse fund in their new church. This written contract has been 'lost and the plaintiffs have attempted to prove the written contract by parol, and, as usually happens, the proof- is vague, indefinite, and uncertain. One witness says the agreement was that the building itself was the subject of the agreement, and another that the agreement referred to the use of the land upon which the schoolhouse was to be erected; i. e.:
“They were to have the land as long as one of the subscribers wanted a school building: It was expressed in there just that way.”
¶3*51 If the agreement refers to the schoolhouse, the proceeds of sale are in the new church. If the parties are entitled to follow the fund, then the fund is in the new church, and not in the old. If the agreement referred to the land, the injunction will not lie, because there is no effort to dispose of the land. One of the plaintiffs testified:
“I was present at the church meeting when this question was brought up, after the erection of the new school building. I did not object to it, and had nothing to say, because I knew it was not right.”
¶4 The time to say “it was not right” was at the church meeting before the sale. When one does not speak when he ought to speak, the Court of equity will not hear him speak when he ought to keep silent. If the church has taken the property purchased by moneys subscribed by its members, and sold it, and converted the proceeds of sale to other uses, then the church should respond to its members.
¶5 There has been shown no sufficient agreement to substitute the old church for the second schoolhouse, and Judge Shipp was right when he refused to grant the injunction, and his order should be affirmed.