of. While laches is often spoken of as the equitable equivalent of the legal statute of limitations, yet there is no fixed time which makes it an absolute bar. In Russell v. Southard, supra, there was between the fraudulent transaction and the commencement of the suit a lapse of nineteen years and eight months, and it was held that that was not sufficient, the court saying (p. 155):

"The absence of all valuable consideration for the surrender of the equity, and the circumstances of distress under which it was made, and which, so far as appears, continued to exist down to the filing of the bill, coupled with the conviction, which we think Russell mistakenly entertained, that his rights were probably destroyed, must prevent us from allowing the lapse of time to be a positive bar."

The rights of purchasers from Wagg subsequent to May 28, 1901, are protected by the accounting ordered, and as they did not appeal from the decree it must be assumed that they were satisfied with it.

The decree of the Supreme Court of the Territory of Oklahoma is

Affirmed.

Argument for Appellant.

215 U.S.

LOWREY v. TERRITORY OF HAWAII.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

HAWAII.

No. 469. Argued December 6, 1909.-Decided January 24, 1910.

The decision and opinion of this court in Lowrey v. Hawaii, 206 U. S. 206, construed and followed as to construction of contract involved and liability thereunder of the Hawaiian government.

A condition to teach a definite Christian doctrine is not satisfied by teaching merely a form of general evangelical Christianity. Where the breach of a covenant of use entails either forfeiture or payment of a specified sum, the grantee has the right of election until disavowal on his part and denial of the alternative obligation, and until then, notwithstanding a continuous breach, the statute of limitations does not run against the grantor.

A deed of trust conveying all lands of grantor or in which it has any interest held in this case to include its right to a liquidated sum in lieu of right of reëntry for a breach of covenant of use of lands theretofore conveyed by it.

19 Hawaii, 123, reversed.

THE facts are stated in the opinion.

Mr. David L. Withington for appellant:

It is law of this case that the terms of the agreement require the inculcation of general learning and knowledge accompanied with religious instruction in accordance with the confession of faith submitted to the Hawaiian government, Lourey v. Hawaii, 206 U. S. 206, and it is as much a breach to fail to teach doctrine as to teach religion.

The condition for religious teaching is unchanging, definite and absolute to-day. No waiver or statute of limitation bars the action.

A trust of this kind for religion is valid, and, so long as there is anyone in interest demanding its fulfillment, must be

215 U.S.

Argument for Appellant.

carried out. Watson v. Jones, 13 Wall. 679. The general doctrines of Christianity are a part of the common law of the country and we are a Christian people. Holy Trinity Church v. United States, 143 U. S. 457. And see Vidal v. Girard's Executors, 2 How. 127; Free Church v. Overtown, L. R. 1904, A. C. 515. While an independent church may by majority vote change its views as held in Wiswell v. Congregational Church, 14 Ohio St. 31; Keyser v. Stansifer, 6 Ohio, 363; Trinitarian Cong. Soc. v. Union Cong. Soc., 61 N. H. 384; Fadners v. Braunborg, 73 Wisconsin, 257; Landis' Appeal, 102 Pa. St. 467, that is not the case where the church has been founded for a particular form of worship and doctrine; in such case even all the members cannot alter the doctrine. Schnorr's Appeal, 67 Pa. St. 138; St. Mary's Church Case, 7 Serg. & R. 517; Den v. Bolton, 12 N. J. L. 206; Craigdallie v. Aikman, 1 Dow, 1; Foley v. Wonnter, 2 Jac. & W. 245; Leslie v. Birnie, 2 Russ. 114; Davis v. Jenkins, 3 Ves. & B. 156; Milligan v. Mitchell, 3 Myl. & C. 72; S. C., 1 Myl. & K. 446.

For cases in which courts have interfered to prevent funds given to support either Unitarianism or Trinitarianism from being used to support the other, see Roshi's Appeal, 69 Pa. St. 462; Rottman v. Bartling, 22 Nebraska, 375; Attorney General v. Hulton, 7 Ir. Eq. 612; Miller v. Gable, 2 Denio, 492, 548; 2 Story, Eq., § 1191a; Attorney General v. Pearson, 3 Meur. 353; S. C., 7 Sim. 290; Shore v. Attorney General, 9 Clark & F. 355; Attorney General v. Shore, 11 Sim. 592; Attorney General v. Wilson, 16 Sim. 210; Attorney General v. Drummond, 1 Dru. & W. 353; Christian Church v. Carpenter, 108 Iowa, 650; Cape v. Plymouth Church, 117 Wisconsin, 155; Rodgers v. Burnett, 108 Tennessee, 173.

It is the duty of courts to see that dedicated property is not diverted from the trust to which it has been dedicated. Lamb v. Cain, 129 Indiana, 486; Smith v. Pedigo, 145 Indiana, 385 and 406; Princeton v. Adams, 10 Cush. 129. The guaranty of religious freedom does not affect this rule. Bear v. Heasley, 98 Michigan, 279. The right to the property depends

Argument for Appellant.

215 U. S.

not on numbers but on those who adhere to the doctrine specified in the dedication. Baker v. Ducker, 79 California, 365; Peace v. Christian Church, 20 Tex. Civ. App. 85; Greek Church v. Orthodox Church, 195 Pa. St. 425; Dochkus v. Lithuanian Society, 206 Pa. St. 25; Roshi's Appeal, 69 Pa. St. 462; Clark v. Brown, 108 S. W. Rep. 421; Mack v. Kime, 129 Georgia, 1; Marien v. Evangelical Congregation, 132 Wisconsin, 650. This property whether in the hands of the mission, government, or trustees was impressed with a trust for a religious use, and failure to enforce a trust is not barred by mere lapse of time. Oliver v. Piatt, 3 How. 333, 411; New York Indians v. United States, 170 U. S. 1.

Mere silence or delay will not defeat the action where the obligation is continuous. Tynan v. Warren, 53 N. J. Eq. 313; Union College v. New York, 173 N. Y. 38; Ryder v. Loomis, 161 Massachusetts, 161; Stockbridge Iron Co. v. Hudson Iron Co., 107 Massachusetts, 290; Royal v. Aultman Co., 116 Indiana, 424; Angell on Limitation, 5th ed., § 72; Ganley v. Bank, 98 N. Y. 487.

Past breaches can be waived by considering the condition still in effect with knowledge of the breaches. Hubbard v. Hubbard, 97 Massachusetts, 188; Payson v. Burnham, 141 Massachusetts, 547; Linzee v. Mixer, 101 Massachusetts, 512; Bacon v. Sandberg, 179 Massachusetts, 396. Neglect and remissness may not constitute a breach. There must be an intent not to carry out the contract. Osgood v. Abbott, 58 Maine, 73; Mills v. Seminary, 58 Wisconsin, 135; Coleman v. Whitney, 62 Vermont, 123. Mere silence and delay do not create estoppel against forfeiture. Gray v. Blanchard, 8 Pick. 284; Maginnis v. Ice Co., 112 Wisconsin, 385. Parol assent without change of situation does not destroy express condition. Jackson v. Crysler, 1 Johns. Cas. 125; Plumb v. Tubbs, 41 N. Y. 442; Congregationist Society v. Osborn, 94 Pac. Rep. 881; Howe v. Lowell, 171 Massachusetts, 575. Patient endurance of repeated breaches does not bar right to rescind when the conduct becomes unendurable. Gall v.

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Argument for Appellant.

Gall, 126 Wisconsin, 390; and on this point see also Bleecker v. Smith, 13 Wend. 530; Doe v. Woodbridge, 9 B. & C. 376; Dakin v. Williams, 17 Wend. 447; Doe v. Jones, 5 Exch. 498; Farwell v. Easton, 63 Missouri, 446; Alexander v. Hodges, 41 Michigan, 691; Adams v. Copper Co., 7 Fed. Rep. 634. A demand or equivalent act is necessary to set statute in motion. Preston v. Bosworth, 153 Indiana, 458; Water Power Co., v. Belin, 69 Minnesota, 253; Lewis v. Lewis, 74 Connecticut, 630; Hadley v. Manufacturing Co., 4 Gray, 140; Crane v. Hyde Park, 135 Massachusetts, 147; Merrifield v. Cobleigh, 4 Cushing, 178; Ward's Appeal, 35 Connecticut, 161; Yeary v. Cummins, 28 Texas, 91; Link v. Jarvis, 33 Pac. Rep. 201; Eames v. Savage, 14 Massachusetts, 425; United States v. Louisiana, 123 U. S. 32; Bonnivell v. Madison, 107 Iowa, 85; French v. Merrill, 132 Massachusetts, 525; Cromwell v. Norton, 193 Massachusetts, 293; Stretch v. Schenck, 23 Indiana, 77; Parks v. Satterthwaite, 123 Indiana, 411; Horner v. Clark, 27 Ind. App. 6.

For cases in which the statute did not run from the breach but the demand, see Lydig v. Braman, 177 Massachusetts, 212; Babcock v. Wyman, 19 How. 289; Stringer v. Stringer Co., 93 Georgia, 320; Parker v. Gaines, 11 S. W. Rep. 693; Goodwin v. Ray, 108 Tennessee, 614; Bolles v. Stearns, 11 Cush. 320; Owen v. Higgins, 113 Iowa, 735. Nor after condition broken until forfeiture asserted. St. Louis R. R. v. McGee, 115 U. S. 469; Bybee v. Ore. & Cal. R. R., 139 U. S. 663; Topham v. Braddick, 1 Taunt. 572; Wright v. Hamilton, 2 Bailey's Law, 51; Collard's Admr. v. Tuttle, 4 Vermont, 491.

Where an agreement is in the alternative a money demand does not arise until a refusal to convey. The choice is primarily in the promisor. Mayer v. Dwinell, 29 Vermont, 298; Foster v. Goldschmidt, 21 Fed. Rep. 70; Dessert v. Scott, 58 Wisconsin, 390; Smith v. Sanborn, 11 Johns. 59.

The day before payment the obligor, the day of payment the obligee, can elect. McNitt v. Clarke, 7 Johns. 465; Patchen v. Swift, 21 Vermont, 292; Ross v. Sutton, 1 Bailey's Law, 129. See also Barker v. Jones, 8 N. H. 413; White v.