The opinion of the court was delivered by: Moss, Justice.
The McCarter Presbyterian Church, located in Greenville, South Carolina, was organized in 1895 as a member of the Presbyterian Church in the United States, and was a member of the Enoree Presbytery, a judicatory of said denomination. McCarter Presbyterian Church, since its organization, was part of and subject to the government and control of the Enoree Presbytery and the Synod of South Carolina.
In 1905 and 1909 the trustees of McCarter Presbyterian Church acquired, in fee simple, two pieces of real estate. Upon this land a church building was erected and used continuously by the church for many years.
On October 19, 1947, at a congregational meeting of McCarter Presbyterian Church, a motion was made, seconded and passed "for the Trustees to deed all church property to The Bible Mission Corporation, for a sum of money of Seven Hundred Fifty & 00/100 ($750.00) Dollars, and other consideration." No such deed was executed. The Bible Mission was a religious corporation, whose officers or trustees were all officers of McCarter Presbyterian Church. The Bible Mission Corporation was part and parcel of McCarter Presbyterian Church and was incorporated because there was some talk of the Southern Presbyterians and the Northern Presbyterians uniting or merging and it was the purpose of the conveyance to put the property beyond the reach of the Presbyterian Church in the United States of America.
On January 11, 1948, which was after the passage of the aforementioned resolution, the McCarter Presbyterian Church building was totally destroyed by fire. Thereafter, the congregation started working towards the construction of a new church building on the same site. Funds were collected from the Sunday School treasury and the regular church treasury and transferred to McCarter Presbyterian Church Building Fund. Various persons were solicited and contributions made to such fund. No contributions were made to The Bible Mission Corporation for such purpose. The new church building was erected at a cost of approximately $17,000.00.
McCarter Presbyterian Church was without a regular pastor, and Rev. Douglas Parris, who was an instructor at Bob Jones University, was approved by the Enoree Presbytery for several six months periods as a supply pastor. Finally, in 1953, the Presbytery notified McCarter Presbyterian Church that this arrangement could be no longer continued. Shortly thereafter, and on May 10, 1953, at a regular called meeting, the congregation of McCarter Presbyterian Church, which had a total membership of sixty-seven, voted 38 to 2 to withdraw from Enoree Presbytery. The Clerk of the Session of McCarter Presbyterian Church notified the stated Clerk of Enoree Presbytery of the congregational action and of the intention of the church to secede and to sever all relationship with the Presbyterian Church in the United States and of the intention to continue as the McCarter Independent Presbyterian Church. It appears that a large sign was placed in front of the church building which read "McCarter Independent Presbyterian Church."
It appears that those who withdrew and seceded from Enoree Presbytery and Presbyterian Church in the United States constituted a majority of McCarter Presbyterian Church. However, there was a group of eleven members which remained loyal to Enoree Presbytery and the Presbyterian Church in the United States, and they petitioned the aid of the Presbytery. This loyal group of the old congregation was recognized by the Presbytery on September 22, 1953, as constituting McCarter Presbyterian Church. This group, with the aid of the Presbytery, has a minister, holds regular church services, and is conforming to the government and discipline of the Presbyterian Church in the United States.
This loyal group brought the present action to have themselves declared to be McCarter Presbyterian Church and entitled to the possession and control of the church property; and to have the court construe and reform the deed of the Trustees of McCarter Presbyterian Church to the Bible Mission so as to show that the premises are held by the Bible Mission, in trust, for the use and benefit of McCarter Presbyterian Church, and the minority group representing said church; and for a permanent injunction prohibiting the majority constituting the McCarter Independent Presbyterian Church, and each and every member thereof, from interfering with the rights of the minority group constituting the McCarter Presbyterian Church.
All of the defendants, with the exception of Edgar Watkins, as trustee of the Bible Mission, jointly answered the said petition, on behalf of themselves and as representatives of the other members of the church, denied the material allegations of the petition, demanded that the action be dismissed, and among other defenses alleged that the property was owned by the Bible Mission in fee simple, in its own right, and that the McCarter Presbyterian Church had no interest therein, and that since they and those whom they represented constitute a majority of the membership of the said church were not subject to being barred from the use and enjoyment of any property of said church, nor from participation in its possession and control. An answer was filed in behalf of Edgar Watkins, as Trustee of the said Bible Mission, admitting the allegations of the petition and joining in the prayer thereof.
This entire matter was referred to the Master in Equity for Greenville County. He conducted references and, thereafter, filed his report, finding that the petitioners, who constitute a minority of the McCarter Presbyterian Church, but who were loyal to the denomination and who had been recognized by Enoree Presbytery as constituting the McCarter Presbyterian Church, are entitled to the property of the church as against the appellants, who are a majority of the former congregation but who have withdrawn from the denomination, severed all connection with the Presbytery, and in form and fact have constituted themselves an independent congregational type church, all without the consent or approval of Enoree Presbytery. He also found that the deed from the trustees of McCarter Presbyterian Church to the Bible Mission did not intend to convey away the title of McCarter Presbyterian Church to such property, but was intended to convey the title to the Bible Mission in trust for the use and benefit of McCarter Presbyterian Church, and that such deed should be reformed so as to show such intention. He also found that the premises should be surrendered to the group who remained loyal to the denomination, and that the appellants here should be enjoined from interfering directly or indirectly with the occupancy and use of the church premises and property.
Thereafter, the appellants filed Exceptions, seventy in number, to the Report of the Master. The Honorable W.B. McGowan, Judge of the Greenville County Court, after full and complete arguments, overruled appellants' exceptions to said report and affirmed such.
The appellants come before this Court on thirty exceptions to the judgment of the lower court. In addition thereto they have, for the first time, and without exceptions, questioned the jurisdiction of the Greenville County Court to hear and determine the issues raised in this case. They assert that the Greenville County Court has no jurisdiction for the reason that this action is one for the recovery of specific real property of a value of more than $5,000.00, thereby exceeding the jurisdictional limitations of the County Court. The respondents contend that this action is not one for the recovery of specific real property but is an action brought on the equity side of the Court for the reformation of a deed, for an injunction, and for the declaration that the appellants hold the church property in trust for the use and benefit of McCarter Presbyterian Church.
The jurisdiction of the Greenville County Court to hear and determine the issues presented by the pleadings in this cause must, of necessity, depend upon the nature of the cause of action sued upon, because if the action is one for the recovery of specific real property and its value exceeds the sum of $5,000.00, the Greenville County Court would have no jurisdiction, but if the action is one of equitable cognizance, then the County Court has unlimited jurisdiction.
The Greenville County Court has jurisdiction as is conferred by Section 15-654 of the 1952 Code of Laws of South Carolina, which provides:
"Said county court shall have concurrent jurisdiction with the court of common pleas in all civil cases and special proceedings, both at law and equity, except that such jurisdiction shall not extend to actions at law for the recovery of money only when the amount demanded in the complaint exceeds five thousand dollars or for the recovery of specific real and personal property when the value of such property exceeds five thousand dollars."
Even though the appellants did not raise the question of jurisdiction in the lower court, objection to the jurisdiction of the subject-matter may be made at any time during the progress of the action, and such jurisdiction cannot be waived or conferred by consent. Want of jurisdiction of the subject-matter may be taken advantage of at any stage of the proceeding. Black v. Town of Springfield, 217 S.C. 413, 60 S.E.2d 854; Ladshaw v. Hoskins, 204 S.C. 346, 29 S.E.2d 480; Senn v. Spartanburg County, 192 S.C. 489, 7 S.E.2d 454. We, therefore, conclude that the objection to the jurisdiction of the Greenville County Court is timely made in this court.
We must now consider what is the nature of the action stated in the complaint in this cause, whether such is a legal action or one for equitable relief. If we determine that the action is equitable, it follows that the Greenville County Court was a proper forum for the trial of this cause.
In the case of Ogilvie v. Smith, 215 S.C. 300, 54 S.E.2d 860, 862, this court, in an Opinion by Mr. Justice Oxner, said:
"`The character of an action is determined by the complaint in its main purpose and broad outlines and not merely by allegations that are merely incidental.' Alford v. Martin, 176 S.C. 207, 180 S.E. 13, 15. `Allegations not in harmony with the theory of the pleading will be considered surplusage.' Speizman v. Guill, 202 S.C. 498, 25 S.E.2d 731, 737. `If the character of the action appears with sufficient clearness in the body of the complaint, it must control, unaffected by the prayer for relief or the intention or characterization of the pleader.' Speizman v. Guill, supra. While the prayer constitutes no part of the plaintiff's cause of action, Daniel v. Conestee Mills, 183 S.C. 337, 191 S.E. 76, `it is an element which may properly be considered in determining the legal or equitable character of an action, and, where the complaint states facts which would support either a legal or an equitable action, the relief demanded will ordinarily determine its character.' 1 C.J.S., Actions, § 54, page 1155. In Speizman v. Guill, supra, the Court said: `In a case where it is material or necessary to determine which of two different remedies arising upon the same state of facts a party has elected to pursue, undoubtedly the prayer for relief may be considered at least as tending to indicate which remedy the plaintiff elected.'
"Considering the second cause of action in the light of the foregoing principles, we think that plaintiff has elected to proceed on the theory of a constructive trust. The circumstances under which such a trust arises are discussed at length in the following cases, some of them quite recent: Bank of Williston v. Alderman, 106 S.C. 386, 91 S.E. 296; Greene v. Brown, 199 S.C. 218, 19 S.E.2d 114; All v. Prillaman, 200 S.C. 279, 20 S.E.2d 741, 159 A.L.R. 981; Dominick v. Rhodes, 202 S.C. 139, 24 S.E.2d 168; Searson v. Webb, 208 S.C. 453, 38 S.E.2d 654. Under the authority of these decisions, we think the allegations stated in the second cause of action, liberally construed, are sufficient to support the relief sought."
This Court has also announced another well established rule of pleading in the case of Speizman v. Guill, supra [202 S.C. 498, 25 S.E.2d 737], as follows:
"`Where it is doubtful upon what theory the pleading was drawn, the Court will construe it according to theory it deems most in accord with the facts alleged. The pleading should be construed so as to prevent parties from being misled. Thus it has been said that the Court should consider what the opposite party had reason to understand was the issue tendered. The theory of the pleading is not determined from the legal verbiage or the name or style given to the pleading, or the epithets found therein, or from the statements or concessions of counsel which form no part of the record. Allegations not in harmony with the theory of the pleading will be considered surplusage. The Court will, when possible, sustain the theory intended by the pleader. But that a certain theory was evidently contemplated by the person who drew the pleading is of no avail as against the theory shown by the facts alleged.' 49 C.J., p. 118, § 110."
In the case of Farmers' Union Mercantile Co. v. Anderson, 108 S.C. 66, 93 S.E. 422, 424, the following rule was announced:
"Under the old practice each form of action had distinctive earmarks, so that there was little or no difficulty in determining what kind of action the pleader intended to bring. But the Code requires only a statement of the ultimate facts constituting the causes of action; and, as precisely the same facts may give rise to an action ex contractu or ex delicto, at the pleader's election, and as the pleader is not required to name his action, or to specifically declare his intention or indicate his election, it is often difficult to determine what kind of action was intended. In doubtful cases the question must be determined by the substance of the allegations, and such other facts and circumstances as may throw light upon the intention; every reasonable intendment being ...