author: Monell, J. Jones, J. Fithian, J.

text:
    THE MADISON AVENUE BAPTIST CHURCH, Plaintiffs and Appellants, v. THE BAPTIST CHURCH IN OLIVER STREET, Defendants and Respondents.
    A religious corporation Is the aggregation of the male members of the church and congregation, who have been stated attendants and contributed to its support.
    A notice given from the pulpit of a meeting to be held for the purpose of authorizing the trustees to take the proper legal steps to effect a union with another church and congregation, is a sufficient notice, and the proceedings of a meeting, convened in pursuance of such notice, are binding upon the corporation.
    A resolution adopted at such a.meeting, authorizing the trustees to apply to the Court for permission to convey the real estate of the corporation, is valid, notwithstanding a majority of ail the corporators were not present.
    In such a case the consent of pew owners or pew holders was not necessary.
    The trustees of a religious corporation, being vested with all the temporalities of the church, have power, with the sanction of the Court, to dispose of the real as well as the personal estate of such church, without obtaining any express authority from the corporators; and upon an application by the trustees for leave to convey, it would not be the subject of legitimate inquiry to investigate the preliminary proceedings which set the trustees in motion, unless their action was attacked by those who were opposed to the sale. Per Monell, J."
    The question of the common-law power of religious corporations to alien their real property re-examined by Monell, J., and affirmed.
    Before Monell, Jones, and Fithian, JJ.

      [Decided April 16, 1869.]
    (For opinion of General Term on a former appeal in this case, see 3 Robt., 570.)
    Action to recover the possession of a lot of land, and the building thereon, situate on the south-east corner of Madison avenue and Thirty-first street, in the City of New York.
    s The action was tried before Mr. Justice Jones, without a jury, who ordered judgment in favor of the defendants, confirming their title to the premises in question, from which judgment the plaintiffs have appealed.
    On a former trial, all the proof offered in support of the defences set up in the answer was excluded by the Court, as not constituting a defense to the action, and judgment was thereupon rendered in favor of the plaintiffs, that they recover possession of the premises. From that judgment the defendants appealed to the General Term of this Court, where the judgment was reversed, and a new trial ordered (see case reported in 3d Robertson, p. 570).
    On the second trial the defendants introduced all the evidence which had been excluded on the first trial, including a petition to the Supreme Court, presented in the name of the Trustees of the Madison Avenue Baptist Church, and signed and verified by the President and Secretary of the Board of Trustees; also resolutions, consent of pew owners, and of pew holders, annexed to and forming part of said petition. All the evidence was objected to by the plaintiffs. The objection was overruled, and the plaintiffs excepted.
    The plaintiffs then offered evidence with the view to impeach or contradict some of the statements contained in the petition to the Supreme Court for its approval of the conveyance of the property, which statements, so attacked, are as follows :
    That, owing to causes stated in the petition, the petitioners were unable to pay their liabilities, or meet the current expenses of the church:
    That, the plan of union having been agreed to by the joint committee of the two churches, at a public meeting of the church and congregation of the plaintiffs’ church, duly called, and held on the 29th of September, 1862, the report of the committee appointed by the plaintiffs, setting forth the plan, terms, and arrangement of the union, was adopted and approved, and the trustees of the plaintiffs authorized and directed to petition the Court for an order authorizing them to convey their church property to the defendants:
    That there were twenty-eight pew owners, and thirty-nine pew holders, or hirers of pews, in the plaintiffs’ church; that sixteen of the pew owners and twenty-five of the pew holders signed the consent and request annexed to the petition; and that all the other pew owners and pew holders in said church approved, and' were in favor of forming a union with the defendants, on the terms of the agreement set forth.
    The evidence thus offered by the plaintiffs tended to prove that on the 29th of September, 1862, the number of corpora-tors of the plaintiffs’ church was seventy-two, including such as merely contributed to the support of the church, but were neither pew owners nor pew holders, and that some of the persons who signed the consents, as pew owners or pew holders, were not corporators. It was further proved, that the meeting of the 29th of September was held in pursuance of the following notice, read from the pulpit of the plaintiffs’ church, on the preceding Sabbath, namely:
    “A meeting of the church and congregation will be held in the chapel to-morrow evening, at Y& o’clock, for the purpose of authorizing the trustees to take the proper legal steps for effecting a union with the Oliver street Baptist Church.”
    At that meeting, the plan of union was adopted, and the trustees of the church authorized and directed to obtain the consent of the Court to a conveyance of their property to the defendants. There was proof that there was present at the meeting only twenty-one corporators. The proceedings of a meeting of the trustees, on the first day of October, 1862, were proved, at which it was voted, by a majority of those present, that the President be authorized to petition the Supreme Court for permission to convey, &c., and that the President and Secretary be authorized to sign a deed conveying the property.
    Mr. Hilbank, one of the plaintiffs’ witnesses, contradicted the statement in the petition, that a majority of the pew owners and pew holders had signed a consent and request that an order be made authorizing the trustees to convey. He stated, that instead of forty-one being a majority, it was a minority of the pew owners and new hirers; that there were at that time - eighty-seven altogether, including both pew owners and pew holders. He also testified, that the meeting of the church and congregation, after the plan of union had been suggested, held on the 29th of September, was to consider the propriety of a union, and not to pass on the propriety of conveying the property. He further stated that only twenty-eight pew owners and pew holders signed the consents. There was also evidence that the petition, after it was prepared, was not submitted, or shown to, or brought to the knowledge of the trustees, before it was presented to the Court; and there was also some evidence in regard to the financial condition of the plaintiffs.
    The plaintiffs offered a variety of evidence, documentary and otherwise, tending to show that a large number of the corporators were opposed to the conveyance of the property. But it was objected to, on the ground that it was posterior to the delivery of the deed, and was excluded by the Court.
    Upon all the evidence, the Justice found, among others, the following facts:

    That the meeting of the 29th of September was a meeting of the corporation of the Madison avenue Baptist Church, duly called and convened, and that the resolutions authorizing and directing the trustees to petition the Supreme Court for an order to convey their property to the defendants, and, upon obtaining permission, to execute a conveyance thereof, were passed by a majority of the corporators present and voting in their favor.
    That none of the allegations contained in the two petitions presented to the Supreme Court were shown to be untrue, except the allegation that the plan or terms of the projected union, mentioned in the first petition, were agreed on by a joint committee, appointed by the corporate bodies respectively.
    The other findings of the Court were merely in affirmance of the matters of defence set up in the answer, and are not necessary to be stated.
    The plaintiffs’ counsel requested the Court to make several findings of fact, among them: That the meeting of the 29th of September was attended by certain members of the church and congregation, not exceeding thirty in all, of whom not more than twenty-one were corporators of the church:.
    That the petition to the Supreme Court, prior to being presented, was not seen by, or its contents communicated to, any officer, or trustee, or corporator of the plaintiffs, except the President and Secretary:
    That of the sixteen persons who signed the consent of pew owners, not more than fourteen were corporators; that of the twenty-five persons who signed the consent of pew holders, not more than fourteen were corporators:
    That at the time of such meeting there were not less than fifty-two corporators who neither attended such meeting nor signed such consents; and that the pew owners and pew holders were not less than eighty-seven.
    The Justice refused to make such findings.
    The conclusions of law were, that the defendants were vested with a good and valid title in fee in the premises, and were entitled to judgment confirming such title, and the possession thereof, with costs.
    The plaintiffs made exceptions to the several findings of fact, and to the refusals to find, and to the conclusions of law.
    Judgment was entered, and the plaintiffs appealed.

      Mr. C. C. Langdell for appellants.
    The action was brought in proper form.
    In making the order under which the deed to the defendant was executed, the Supreme Court was not exercising its general jurisdiction, but was acting by virtue of a special statutory authority. Unless, therefore, the application upon which the order was made came within the terms of the statute, and all the,requirements of the statute were complied with, the order was null and void, and not merely erroneous. - The distinction between a void and an erroneous proceeding has no application to proceedings of this nature. They are either in conformity to the statute and so free from error, or they are absolutely void (Wheaton v. Gates, 18 N. Y., 395). Assuming the order to be void, an action of ejectment was the proper remedy (Denning v. Corwin, 11 Wend., 646; Rogers v. Dill, 6 Hill, 415). In Clark v. Van Surlay (15 Wend., 436; 20 Wend., 365), it was held that the decretal order there drawn in question was made by Chancellor Kent in the exercise of his general jurisdiction, and was subject to appeal or rehearing, like a decree rendered upon a bill filed ; and hence, however erroneous it might be, it was not void, and so could not be attacked collaterally. If the premises were correct, the conclusion would obviously follow (see 15 Wend., 448, per Bronson, J.; 20 Wend., 378-9, per Walworth, C.; 20 Wend., 384-6, per Verplanck, Sen.; 8 How. (U. S.), 536-544, per Wayne, J.; 8 How., [U. S.], 552-8, per Nelson, J.).
    The fourth section of the act for the incorporation of religious societies (2 R. L. of 1813, pp. 214, 215), by its true and settled construction, renders the real property of such societies absolutely inalienable, except for a term of years; and but for the 11th section of the same act, no such society could make a conveyance in fee of its real estate for any purpose whatever, without obtaining special authority from the legislature (De Ruyter v. St. Peter’s Church, 3 Comst. 238, 240,' 241; 2 Kent’s Com., 281). The Supreme Court is only authorized by that section to order a sale of the property of a religious society, i. e., a transfer thereof for money. “Sale is a word of precise legal import, both at law and in equity. It means at all times a contract between parties, to give and pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold.” The 11th section requires the application for the order of sale to be made by the corporation, which consists, not of the trustees, but of those who have in this suit been termed corpora-tors (Robertson v. Bullions, 1 Kern., 243). The application, therefore, must be authorized by at least a majority of the corpo-r rators; it cannot be made by the mere authority of the board of trustees (Wyatt v. Benson, 23 Barb., 327). It is not claimed that a majority of the corporators signed the consent annexed to the petition, or assented to the petition individually in any form; but it is claimed that the resolutions adopted at the meeting of the 29th September, 1862, were, in legal contemplation, adopted by the entire body of corporators, and, consequently, express the assent of each individual corporator to the transaction. To tliis proposition several conclusive answers may be made. 1. The meeting in question was not a meeting of corporators, but of the congregation generally, including women and infants. 2. The meeting was not called for the purpose of authorizing an application for the conveyance of the plaintiffs’ property to the defendants, but simply “ for the purpose of authorizing the trustees to take the proper legal steps for effecting our union with the Oliver street Baptist Church.” “ Wherever notice is given for one particular business only, the body cannot go on to other business, unless the whole body is met, and it is done by consent ” (8 East., 546). 3. The meeting was not legally called for any purpose whatever. The only meetings specifically provided for in the statute, are the annual meetings for the election of trustees (2 R. L., pp. 214-, 216, secs. 3, 6), though other meetings are recognized (P. 217, sec. 8). The call must be supported, if at all, upon common-law principles, without the aid of any statute. And it is settled that, at common law, a corporate meeting can only be called by serving a notice personally upon every corporator (Stow v. Wise, 7 Conn., 19; Wiggin v. Freewill Baptist Society, 8 Met., 301). Independently of any statutory restriction, a religious society cannot make any conveyance of its real estate for any and all purposes it may see fit; but only for some purpose which may be considered to be for the interest of the society, “ as an association which is to continue organised for the purposes of its creation ” (Wheaton v. Gates, 18 N. Y., 395, 403).

      Mr. William R. Martin for respondents.
    The findings and conclusions at the Special Term were correct upon the evidence. The plaintiffs failed to establish that their petition was in any material respect untrue, or a fraud upon the Court; that the Supreme Court had no jurisdiction to make the order they asked for; or that their deed to defendants is void. The petition was formally presented by the trustees, and it was unnecessary to the legality of the proceedings that they should consult the corporators. The statute confers on the trustees (sec. 3) authority “ to take the charge of the estate and property belonging to the church, congregation, or society, and to transact all affairs relative to the temporalities thereof.” By that statute the trustees are, in fact, the only persons who can represent the interests of the society in Court. They have full control of the temporalities. They have the same authority to sell land as to sell any article of personal property. But for the requirement that the consent of the Court must be had to a sale, no question of their power to sell a lot of ground belonging to the society could arise. It may be proper, as a guide to the discretion of the Supreme Court, that the wishes of the corporators should be ascertained and stated. But that appertains wholly to the result of the proceeding in the Supreme Court, and has nothing to do with the jurisdiction of that Court to act in the premises (opinion of General Term in this case, 3 Robt., 570; in re St. Ann’s Church, 23 How. R., 285; in re Baptist. Soc. of Canaan, 20 How. B., 324; Wyatt v. Benson, 23 Barb., 327). By statute (1 Rev. Stat., 599, sec. 1), “ every corporation, as such, has power to hold, purchase, and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter ” (see sec. 2; and see Bowen v. Irish Pres. Cong., 6 Bosw., 266-7).
    How, the trustees are the parties, and the only parties, who are authorized by the statute “ to transact all affairs relative to the temporalities of the society.” Of course, then, they may apply for the consent of the Court, and, if it be given, may make the sale. If necessary that the trustees shall consult the corporators on the subject, it was done in this case, and is so proved. The proceeding was expressly authorized by them. The resolution authorized the consummation of the union, in the very manner in which it was carried out. There was no evidence that women voted. Silence implies assent to the act of the majority (Angell & Ames Corp., sec. 499; Commonwealth v. Green, 4 Whart. Penn. R., 531). The proceedings of the meeting of September 29 are a full authority for the application, although a majority of the corporators were not present. That meeting was duly called and was in all respects a regular meeting. It was called by public notice from the pulpit on the preceding Sabbath, inviting a full attendance, and expressing a purpose to “ authorize the trustees to take the proper legal steps for effecting the union ” of the churches. The notice called a meeting of the “ church and congregation.” These are the words used in the statute to designate the electors or corporators. It was called from the proper place—the pulpit—at the proper time, and reached the “ stated attendants.” Ho rule is prescribed by the statute for the repetition of such notices, nor for any interval between the notice and the meetings.
   Monell, J.

When this case was before the Court upon the former appeal, it was held, that the matters set forth in the answer, and which had been offered to be proved on the trial, constituted a defense to the action. I do not, therefore, propose to examine at much length any of the questions disposed of by the former decision, except as those questions may be affected by the evidence given on this trial.

It is now claimed that such evidence renders the proceedings to obtain the permission of the Court to convey the plaintiffs’ property entirely void, for the following reasons:

First—That no legal notice was given of the meeting at which the Trustees were authorized to make the application;

Second—That the resolution containing such authority was not adopted by a majority of all the corporators of the church; and,

Third—That a portion only of the pew owners and pew holders, who consented to such application, were corporators.

The only notice for the first meeting of the society was given from the pulpit of the church, notifying the- church and congregation that a meeting would be held for the purpose of authorizing the trustees to take the proper legal steps for effecting the union. Such notice, it is claimed, was not sufficient to bind the corporation, by a vote of a majority of those present at the meeting, unless such vote was a majority of all the corporators of the church.

The eleventh section of the act to provide for the incorporation of religious societies (Laws 1813, vol. 2, p. 212, see. 11) provides, that an order for the sale of its real estate may he made “ upon the application of the corporation,” but no mode or form is anywhere prescribed for making the application.

The corporation is the aggregation of the male members, of church and congregation, who have been stated attendants, and have contributed to its support; and it is such aggregation that is authorized to make the application.

All corporations act by and through their officers and agents, whose powers are delegated at public or private meetings. Such meetings may be convened in such manner, upon such notice, and at such place, as may be provided in the by-laws, or otherwise agreed upon by the corporation. The statute does not require that any notice shall be given; and it is entirely competent for a corporation to adopt any by-law respecting the notices which may be proper or necessary to be given, or in any other manner prescribe the mode of notifying the corporators, provided it is not in conflict or inconsistent with the statute. The only notice of which the statute has prescribed the nature and manner of giving, is in respect to the election of trustees; and it is provided, that the minister, elders, or deacons, &c., shall “publicly notify ” the congregation of the time and place of the election. But whether such notification shall be by announcement from the pulpit, or, as the plaintiffs claim it should be, in respect to other meetings, by personal service upon each corporator, is not defined. Yet I think it cannot he successfully contended that a notice announced from the pulpit would render an election of trustees void. In one case (People v. Peck, 11 Wend., 604), the Court held that even the omission altogether to give the notice prescribed by the statute in respect to elections of trustees, did not vitiate an election. If any thing can be gained from the statute, it is, that if the legislature thought the rights and interests of corporators, in so important a matter as the selection of trustees, in whom is vested the custody and control of all the property,' were sufficiently protected, by requiring a mere public notice in the church, it is not unreasonable to suppose that a similar notice of meetings for other purposes, of no more importance, would also be sufficient.

It may be, that the rule contended for by the plaintiffs is, to a limited extent, applicable to .all that class of corporations in which the corporators or stockholders have a material and direct interest in the property of the corporation, and have a right to be consulted with regard to its disposition. In those cases, I have no doubt that, if it is desired to get authority from the stockholders, and there is no particular mode of notifying them provided either in the charter or in any by-law, personal notice should be given. But in a religious corporation, where the corporators have not, individually, any pecuniary interest, and where any male person, who merely statedly attends divine worship and contributes a few pence annually to the support of the church, is a corporator, no such strictness can be required. And therefore, if a meeting is convened, after a public notice given in the manner usually adopted for giving notices of all meetings of the church and congregation, the proceedings of such meetings cannot, it seems to me, be otherwise than valid and binding upon all the corporators.

The two cases to which we were referred by the plaintiffs’ counsel have not, upon examination, been found to strengthen the position, that the notice of the meeting, in the case before ns, was not sufficient to bind the corporation. In one of the cases (Wiggin v. First Freewill Baptist Church of Lowell, 8 Met., 30), the decision was put upon the ground that there were special provisions in the incorporating law, directing the manner in which meetings should be convened, which were, “ in such manner as the society shall, by any by-law or vote, provide;" if there be no by-law or vote, then in such manner as the assessor, or the standing committee, shall, in their warrant for such meeting, direct.” And there was a further provision in case the assessors or committee refused or neglected. The meeting was not called in any of the ways provided, and the Court merely, and very correctly, I think, decided, that the proceedings were not binding on the corporators.

The other case (Stow v. Wyse, 7 Conn., 214) was .a manufacturing corporation, and there was no notice whatever to the stockholders of the meeting, and the Court said, that if there was no particular mode of notifying stockholders provided either in the charter or in any by-law, personal notice might be given ; and it was held, in that case, that without such personal notice the meeting had no authority to direct a sale of its property. But the doctrine of that case, even if it he approved, must be confined, I think, to the class of corporations to which I have before referred, in which the stockholders, as in the case from Connecticut, have a material and pecuniary interest, and where the trustees or directors are clothed with none of the large powers which are conferred by the statute upon church trustees.

If I am correct in supposing that the notice of the meeting was sufficient and the meeting was legally convened, it necessarily disposes of the second objection, namely, that the resolution authorizing the application to the Court was not adopted by a majority of all the corporators. It was adopted by a majority of the persons present and voting at the meeting; and that, upon well-established principles, was sufficient to bind the corporation. No question was raised that a quorum was not present; nor was the right of any person to vote challenged or questioned ; and we have the right to assume that a majority of the persons entitled to vote were present. If, therefore, the meeting was legally called, and there was a sufficient number present, of those who had the right to be present, the proceedings of the meeting, adopted by a majority, were binding upon all the corporators.

The third objection has even less force. It was not necessary to obtain the consent of the pew owners or pew holders at all, and it is quite immaterial whether or not they were corporators. They certainly had no greater rights than corporators, and it was not necessary to consult their wishes, after having obtained the authorization of the corporators. This was held by Mr. Justice Harris, in Matter of Second Baptist Church in Canaan (20 How. Pr. R, 324).

Hone of the objections, therefore, taken by the plaintiffs, seem to me to affect the validity and sufficiency of the proceedings to obtain the sanction of the Supreme Court to the proposed conveyance. As found by the learned Justice, the meeting was duly called and convened, and the resolutions authorizing the application of the Court properly passed, and nothing more was required to confer jurisdiction, or give binding effect to the action of the trustees.

I see no reason for disturbing such finding. The evidence, when subjected to well-understood principles, which I have attempted to express, would justify no other conclusion.

But if it were necessary to go a step farther in this case, the petition to the Court, and the order made thereupon, could be sustained on the further ground, that the authority of the corporators was not necessary, and, therefore, all question as to the sufficiency of the notice, or of the vote at the meeting, is disposed of. It has been held, by two judges at least (Matter of Second Baptist Church in Canaan, supra, and Matter of St. Ann’s Church, 14 Abb., 424), that the trustees of a religious society have power to make the application, without being authorized by the express vote of the corporation.

The fourth section of the Act of 1813 (supra;) vests all the temporalities belonging to the church, as well its real as its personal estate, in its trustees. They are authorized to purchase other real or personal estate, and to demise, lease, and improve the same; to erect meeting-houses, and to dispose of all moneys belonging to the corporation. All this authority may be exercised without consulting or obtaining the consent of the corporators; and therefore, in virtue of the care and custody of the real estate of the corporation with which the statute intrusts them, the trustees are the proper persons to obtain the sanction of the Court to a sale. As the giving or withholding its sanction is wholly in the discretion of the Court, it will always listen to objections from the corporators, as was done in the case of Wyatt v. Benson (23 Barb., 327), and will probably withhold its approval, if a majority of the society is found to be opposed to thé sale. But I apprehend the Court would not entertain the application át all, unless it proceeded from the trustees; and it would not be a subject of 'legitimate inquiry to investigate the preliminary proceedings which set the trustees in motion, unless their action was attacked by those who were opposed to the sale.

In short, trustees of religious- corporations have the power and the right, <and, as I think, the sole power and right, to seek the sanction of the Court to a proposed sale of the corporate property; and if an order is made allowing the sale, and the order is executed by a conveyance of the property, it must be that the title acquired would be valid and effectual.

It was earnestly contended by the plaintiffs’ counsel, that this Court was in error in holding, upon the decision of the former appeal, that the real property of a religious corporation was alienable at common law, and that such power of alienage was merely restrained by the statute.

The confidence with which that position was attacked has led me to a further examination of the question, although it is not necessary to the decision of the case.

That corporations aggregate have at common law such right, and, independently of any statute, the absolute jus disjoonendi, which is neither limited as to object nor circumscribed as to quantity, seems to be well settled upon authority (The Mayor and Commonalty of Colchester v. Lawton, 1 Ves. & Bea., 226; 1 Sid., 161, note at the end of the case ; Sutton’s Hospital, 10 Co., 30, b ; 1 Kid on Corp., 108 ; Com. Dig., tit. Franchise,” and cases cited in 3 Robt., 570).

In England, this common-law right of disposition was greatly restrained, on the part of religious corporations, by numerous statutes from 13 Ed. 1 (c. 41), to 5 Geo. 3. (ch. 17), and particularly by several statutes passed in the reign of Elizabeth. By those statutes the common-law right of disposition was taken away as to religious corporations. But it is enough to say that none of those statutes formed a part of the law of the Colony of ¡New York, at the adoption of our first constitution, and have not since been reenacted in this State; although the act of March, 1806, and the eleventh section of the act of 1813, are in effect a restraint upon such common-law right of alienation. Still it is understood that the right remained (Dutch Church in Garden Street v. Mott, 7 Paige, 77, 83), and-that the act of March, 1806, was passed merely to remove a doubt whether the English statutes were not applicable to church property here (Mott v. Dutch Church in Garden Street, supra). And the object, therefore, of that act was to give to every religions corporation an unlimited power to convey its real property, provided the previous consent of the Court was obtained.

The English statutes to which I have referred were enacted for no other purpose than to take from religious corporations their common-law powers of alienation. If such common-law powers had not existed, the Statutes of Westminster were supererogative and needless, and we should have to impute to the British Parliament ignorance of their own common law.

The first general incorporating act of religious societies, in this State, was passed in 1784 (1 Greenleaf ed. Laws of 1784, p. 71). That statute did not contain the present eleventh section of the act of 1813; and whether, until the act of 1806, there was any restraint upon alienation, depended upon whether the statutes of England, in regard to religious corporations, had been adopted by the colonial government in this country, of which Chancellor Walworth says there was a doubt (supra). Consequently, the special acts of 1803, authorizing sales of church property, were passed, and also the general act of 1806.

The reexamination of this question has confirmed the opinion I have heretofore expressed, that in this country, at least, the common-law right of alienation has not been taken away, unless the required sanction of the Court to a sale can be construed into something more than a restraint upon alienation.

The question, however, is of but little importance, inasmuch as it is not doubted, I think, that the only correct construction of the statute is, that with the approbation of the Court a religious corporation can convey its real property, and give a valid title in fee, in the same manner and with like effect as other corporations.

I have examined the exceptions taken to the exclusion of evidence offered by the plaintiff, and do not think any of them well taken. They were offers of evidence of matters transpiring after the order had been made by the Supreme Court, and after the deed of the premises had been executed and delivered to the defendants, and would at most have tended to show that some, and possibly a majority of the corporators, did not approve of or consent to the transfer. For the reason I have already stated, such evidence would have been immaterial upon the issues in the case, and ineffectual to impair or defeat the defendants’ title, and were therefore properly excluded.

I find no error in the decision or judgment, and think they should be affirmed, with costs.

Jones, J.

(concurring). I think the weight of authority is to the effect that the management of the temporal affairs and of the property of religious corporations is vested exclusively in the trustees; that they are to determine whether it is necessary or • expedient to sell the real estate of the corporation, and the terms on which the sale should be made ; and it is for them to apply to the Court to obtain leave to carry out their plans.

It follows from this that it is not necessary there should be any resolutions by the corporators authorizing a sale and application to the Court, nor that a sale and application should be assented to or authorized by the corporators, or any of them; but the application of the trustees only gives the Court jurisdiction to authorize a sale.

It is true, the Court may hear the corporators in opposition to the application of the trustees, and perhaps may even deny the application on the specific ground that a majority of the corporators object to a sale. So, also, the Court may, on application of a corporator, restrain the action of the trustees in like cases, where it will interfere with the action of the trustees or directors of any other corporation. But the action of the Court in these cases is based on the very ground that the trustees have power to contract to sell, and apply to the Court for leave to carry out this contract, without any special authorization from the corporators, and without asking for or obtaining the consent of the corporators, or any of them.

This view disposes of the first, second, and third of appellants’ points.

The fourth point has been passed on at a previous General Term adversely to the appellants.

I concur in affirming the judgment, with costs.

Fithian, J.

(dissenting). On the first trial of this case the defendants, to show title out of plaintiffs, offered in evidence the record of the proceedings had in the Supreme Court to dissolve plaintiffs’ incorporation, and authorize a sale and trans fer of its property. The Justice at Circuit excluded all evidence of these proceedings, on the ground that such evidence was immaterial and constituted no defence to the action, in that the Supreme Court had exceeded its authority in ordering a dissolution of plaintiffs’ corporation in directing a conveyance of plaintiffs’ property to the defendants, instead of a sale in market for money, and in ordering the proceeds, after payment of incumbrances, to be paid to defendants. Accordingly, the Justice ordered judgment for the plaintiffs. The General Term, on appeal, reversed this decision, ordered a new trial, and held that the record of the proceedings in the Supreme Court should have been admitted in evidence, for that the record on its face, uncontradicted, was sufficient to give the Court jurisdiction, and that the Court did not exceed its authority in the premises.

This is all, as I understand it, the Court on the first appeal did or could attempt to decide. The case, as it now appears, contains much additional evidence, and,, in my opinion, raises important questions not before considered by the Court.

On the second trial, the Justice before whom the case was tried, after admitting in evidence the record of the proceedings of the Supreme Court, permitted (and I think correctly) evidence to be given on the part of plaintiffs, not offered on the first trial, showing, I think quite satisfactorily, that the proceedings had in the Supreme (?om-t to dissolve plaintiffs’ corporation, and to sell and dispose of its property, were instituted and prosecuted by the trustees without the authority and against the will of a majority of plaintiffs' corporators; that the meeting of the 29th of September, from which the “ trustees ” seek to derive authority for instituting the proceedings in the Supreme Court, was called without legal notice or authority, and attended by a small minority only of plaintiffs’ corporators; and thus contradicting substantially the allegations in the petition in these respects.

The Justice at Circuit, however, found as a fact, among other findings, that the proceedings of the corporators’ meeting of the 29th of September, 1862, and the meeting of the “ trustees ” of the 1st of October, 1862, were severally “duly called and convened.” But he does not find as a fact, that the proceedings of either of these meetings were attended, or assented to, by a majority of the plaintiffs’ corporators, or how or in what manner the meeting of the 29th of September was called. And he declines to find whether or not the papers called “ consent of pew holders ” and “ consent of pew owners ” contain the signatures of a majority of the corporators. To such refusal to find, plaintiffs’ counsel excepted. If the facts, therefore, are material, the refusal to find as requested was error.

The Justice found, as matter of law, that the title to the property in question was in the defendants, and that they were entitled to a judgment of confirmation of their title.

In my opinion, the evidence given, and the rulings' of the Judge on the second trial, raise important jurisdictional questions, which were not and could not have been considered on the former appeal.

And these questions are, whether upon the undisputed facts in the ease it is not made affirmatively to appear that in the proceedings to authorize the sale and conveyance of plaintiffs’ real estate the Court never obtained jurisdiction of the body corporate of the plaintiffs, and consequently the proceedings were coram non judice, and the conveyance authorized thereby void.

That the jurisdiction of any Court exercising authority over a subject may be inquired into in and by every other Court where the proceedings of the former are relied upon is well settled (1 Peters’ U. S. Rep., 328 ; 8 N. Y. R., 254 [4 Selden] ; 12 N. Y. R., 156 ; 6 Barb., 607).

I deem it immaterial to inquire whether, independently of any statute on the subject, a religious corporation could convey its real estate. For it is conceded that corporations organized under the act of 1813 can only convey by the permission of the Supreme Court first had and' obtained in the manner prescribed by the statute.

In respect to religious societies, incorporated under the provisions of the last-mentioned act, it is settled by the court of last resort that they are civil corporations aggregate, and that the body corporate ” is the male members of full age belonging to the church, congregation, or society, who statedly attend divine worship in such church, and who contribute to its support and that the title to all the corporate property (unless expressly otherwise held in trust) is vested in such body corporate and that the so-called trustees ” are only officers or agents to care for and manage the corporate property for the use and benefit of the corporation (Robertson v. Bullions, 1 Kernan’s R., 243; People v. Fulton, ibid, 94).

In my opinion, the general power and authority of officers or agents of a corporation do not extend to authorize them to dispose of, by sale, the real estate nf the corporation, or institute any proceedings for that purpose, unless expressly empowered so to do by the charter, or by the express or implied authority of a majority of the corporators. I am aware that there has been some conflict of decisions on the subject, but I think the weight of authority is as above stated, and that the opposite opinion is inconsistent, not only with the letter and spirit of the act of incorporation, but with well-settled general principles.

In ascertaining the general power and authority of officers and agents of a corporation, derived simply from their appointment as such, regard must be had to the character of the corporate body and the object and purpose of its corporate existence, and, that being ascertained, it then becomes the duty of its officers so to manage its affairs as to promote its prosperity and welfare, and advance and subserve the general purposes and designs of its incorporation; and any act of its officers intended or calculated to destroy the corporate body or subvert or defeat the objects and purposes of its corporate existence, or destroy or substantially impair its_ usual and ordinary business, will be held unauthorized and void, unless the authority to do the particular act is found in the charter, or expressly or impliedly authorized by the body of the corporators themselves, either in the form of by-laws^ rules, resolutions, or other act evidencing assent (Robbins v. Clay, 33 Maine R., 132; Angel on Corporations, sec. 480 ; Malborough Man. Co. v. Smith, 2 Conn. Rep., 579; Abbott v. The American Hard Rubber Co., 33 Barb., 578, and authorities cited). And so far was this principle carried, that in the case last cited a sale by the directors of all the.personal property of a manufacturing corporation, so as thereby to prevent the prosecution of the particular business for which the corporation was organized, was declared unauthorized and void, as against a non-consenting stockholder, although assented to by the holders of a majority of all the capital stock, and this, notwithstanding the corporate body was left intact with its factory and real estate, well adapted to the prosecution of other business. It is true that this was a case of a jovrit-stooh corporation, and rose between a non-consenting-stockholder and the purchasers of the property. But the principle decided is applicable to all corporations alike, viz., that the general power of the officers and agents does not extend to do such a thing, and that the act would be held void whenever and wherever questioned. And this upon the principle that such suicidal acts were not within the scope

and purview of the general corporate powers of the body corporate.

If I am correct in this, the next inquiry is, whether there is to be found any authority, express or implied, in the act of incorporation, authorizing the “ trustees ” to “ apply ” to the Court for leave to sell the real estate of the corporation.

The language of the statute is, that “ it shall be lawful for the Chancellor (Court), upon the application of any religious corporation, to make an order of sale,” &c. It is the application of the “ corporation,” and that alone, which confers upon the Court jurisdiction to proceed in the premises. But it is said the “ corporation ” can only act through - its agents. True, but these agents must be thereunto duly authorized in some way so to act, and" the inquiry is whether these particular agents can find any warrant of authority in the statute, of their own volition to put the “corporation” into court by making in its name the “application ” to sell its real estate. The powers and authority of the trustees in respect to the property and temporalities of the church are defined and specified in the fourth section of the act with more than usual particularity; and it will be seen that they are, with one' ex- . ception, powers of custody, management, and accumulation merely. They may have the “ custody ” of all “ temporalities,” enumerating many of them. They may collect all “debts and demands,” and assert and defend all “ rights and privileges,” in church property, may “purchase and hold" other additional “real and personal” property, and “ demise, lease, and improve” the same for the “ use of the chiorch,” &c. They may erect “ buildings for ministers,” “school-houses,” and other buildings for like “ use of the church ” (not for sale); and may “ make rules and orders for managing the temporal affairs of the church.” It will be seen that in all these carefully and specifically enumerated powers there is not a word expressing or implying a power to sell and dispose of property. They are powers coupled with a duty to Tceep and accumulate for the “ use ” of the church, and which duty would be violated by an attempt to sell and dispose of, so as to deprive the church of the “ use ” of its temporalities. The statute, however, is not silent on the subject of “disposition.” It has left nothing to implication. It has clothed the “ trustees ” with power to purchase lands and “ erect, repair, and alter” buildings; and in order to provide means for' that purpose, they are expressly empowered to “ dispose of all moneys belonging to the church.” If the general powers above specified were understood by the legislature to include the power of disposition, why expressly confer it as to “ moneys ” ? On the contrary, if the power to sell and dispose of was not intended to be included in the general powers, it was quite necessary to confer it specifically as to money. The maxim “ Exypressio unius, exdusio alterius” applies here. Even the power of disposition of money is so far restricted by the 8th section, as to prevent'the trustees from fixing the “minister’s salary.” It seems to be the manifest intent of the statute, clearly deducible from its language, to protect these religious corporations against the exercise of any such authority as is claimed for the trustees in this case; the reason of which is to be found in the nature and character of these corporate bodies, and the reason and object of their creation. These societies are voluntary associations of Christians, associated, together for the purposes of divine worship, in accordance with such creeds and tenets, religious observances, and forms of church government, as to them should seem meet. And to that end it is necessary they should possess and control property and temporalities sufficient to provide and maintain a house of worship, and such accessories as are requisite and proper for the support and maintenance of their religious observances and practices. For this purpose the civil power has enabled them to become incorporate, to have perpetual succession, and to take and hold property dedicated and set apart for such religious “ uses ” only / not for sale or traffic, or any secular use or purpose. There is no provision for the volnmimy dissolution of such corporations, and they are expressly excluded from the operation of general statutes of the State, providing for the voluntary dissolution of corporations, on the application of directors or officers.

The idea appears to he, that property once vested in a religious corporation, for religious uses, is solemnly dedicated to the service of God, in such mode and manner, and with such forms of worship, as the corporation shall choose (not inconsistent with the law of the land, and the general public policy of the country).

It is clearly the intent of the statute to withhold from these religious corporations that general power of sale and disposition of its property which is incident to other civil corporations, organized for the prosecution of secular affairs, and to confer this power on religious corporations only for special occasions and to meet particular emergencies, and not even then without the sanction and approval of the Court first had and obtained. Hence, whenever the occasion arises where the religious “ uses ” above stated may be subserved by a sale of the real estate of the corporation, it is provided, in the incorporating act, that whenever such corporation may desire to sell its real estate, such “religious corporation” (not its officers) may apply to the Supreme Court for an order permitting such sale. And the statute then immediately proceeds to clothe the Court with power to “ direct the application of the moneys arising from such sale, by the corporation, to such uses as the same corporation, with the consent and approbation of the Court, shall conceive to be most for the interest of the society to which the real estate so sold did belong thus precluding the possibility of the church property, or its proceeds, being in any manner disposed of, except by the particular and, specific action .of the “ corporation ” itself. The “ trustees ” may; manage and hold, buy and build, alter and repair, lease and demise, but it is the corporate body only that can sell and dispose of :the realty, and that only with the consent of the Court.

There is, therefore, nothing to be found .in the act of incorporation which does expressly, or by implication, confer authority lip on the trustees to make “ application ” to sell the church property; and aside from the proceedings of the meeting, hereafter referred to, it is not pretended that there is any by-law, regulation, resolution, or other act of the corporate body itself, conferring such authority in this case. These provisions and considerations seem to me wholly to preclude the idea of there being any power or authority in the officers of a religious corporation, of their own motion, to take or institute any proceedings whatever for the sale of the real estate of the corporation, unless especially thereunto authorized by the corporation itself.

I am not without authority for this conclusion. The case of the Malborough Manufacturing Co. v. Smith (2 Conn. Rep., 579), above cited, is in point on this question. It was there held, that a joint resolution of the Legislature of the State of Connecticut, increasing the power of the directors of the corporation, procured on the application of the directors alone, without the consent or knowledge of the body of the corporators, was null and void. This joint resolution authorized the “ corporation ” to do certain acts (making assessments upon stock) which by its original charter it was not authorized to do. The Court further held, that even if the joint resolution were held valid, it did not authorize the directors to do the acts, and that an assessment by the directors, without other authority, did not bind the body corporate, or any stockholder who might dissent; or, in other words, the Court held to the principle, that where a special power is conferred by statute upon a corporation,” eo nomine, to do some act not within the scope and power of its general corporate powers, such special power can only be exercised by officers specially thereunto authorized by the corporate body.

The only remaining question is, Had these trustees ” any express authority from the corporate body; or does any circumstance appear in evidence from which this Court can rightfully and legally imply an authority to the trustees ” to institute and prosecute the proceedings to sell the real estate and dissolve the corporation?

The act of incorporation provides for the ascertainment and registration'of all such persons as shall from time to time become corporate members in these religious corporations. This registry is to be kept by the Clerk of the Board of Trustees, and is accessible to and within the control of the trustees at all times. In these corporations for religious “ uses” (differing from moneyed or joint-stock corporations), the rights, interests, and power of all the corporators are equal, as between themselves. So that the poor and humble Christian, who contributes his “ penny,” possesses the same power and authority, and is entitled to the same consideration, as the millionaire who contributes his thousands. This is entirely in accordance with the spirit and teachings of the “Master,” whose precepts and example these “corporators” profess to follow. It appears in evidence, and is not controverted by a finding of the Court to the contrary, that the number of the corporators in plaintiffs’ corporation, at the time the proceedings in question were instituted, was “ eighty.” Of these eighty, it appears that “ thirty-one ” only gave consent to the trustees’ proceedings. The trustees had the authority and approval of but “ thirty-oné ” of the “ eighty ” corporators to do acts which required the specific approval of the “ corporate body.” Ordinarily this would dispose of the question of authority at once; but here it is attempted to raise an implied consent by way of “ estoppel” against the other “forty-nine” ' corporators (the great body of the corporation), by and through the proceedings of a church meeting held in the plaintiffs’ church on the 29th of September, 1862, at which, among other things, it was resolved^ that the trustees be directed to petition the Court for the sale of the plaintiffs’ real estate.

The effect given to this meeting and its proceedings renders it necessary to examine with some particularity the law and facts with regard to it. The meeting was held on Monday evening, September 29,1862, pursuant to the following call, read from the pulpit on the preceding day, viz , “A meeting of the church and congregation will be held in the chapel to-morrow evening, at 7-|- o’clock, for the purpose of authorizing the trustees to take the proper legal steps for effecting our union with the Oliver street JBa/ptist Ohurch.” It will be observed that this call was for the whole body of the church and congregation, and not particularly a corporate meeting. There is no evidence as to when or where, or by whom, this call was read, except it was on Sunday, from the pulpit. Whether by the minister, during divine service, and to the whole congregation,' or by some private person to an empty church, does not appear. The Justice, in the settlement of the case, was requested by plaintiffs’ counsel to find as a fact, among other things, how many corpora-tors attended and "took part in the proceedings of this meeting. The Justice refused to find on the subject. I deem this a material matter, and as the Justice declined to find upon it, I shall assume that, if he had made a finding, it would have been in favor of the evidence as claimed by the plaintiffs on this argument ; especially, as in his eighth finding of fact the Justice finds that the statement in the trustees’ petition “ that the plan and terms of the projected union (of the two churches) was agreed on by a joint committee, appointed by the corporatebodies respectively,” was shown to be wntrue. The plaintiffs’ evidence in substance shows that at'this meeting there were only twenty-one • corporators present. There was at best but one day’s notice of the meeting. Assuming the notice'to have been read in open meeting, it could be notice only to such corporators as happened to be present. The language of the call gave no intimation that any thing was to be done respecting the sale of real estate. It was to take legal steps for “ effecting the union ” with the Oliver street Church. Yet “ seventeen ” of the twenty-one ” corporators present at this meeting proceed by resolution to direct the trustees to take proceedings to dissolve the corporation, and dispose of all its property. And it is from the proceedings of such a meeting, thus called, and thus held and attended by scarcely one fourth of the corporators, that the requisite authority is sought to be derived to sanction the act of the trustees in their proceedings to destroy this religious corporation, sell all its real estate, including its house of worship, and merge its congregational identity into a different and larger body. Certainly, when such power and authority are asserted for the voluntary assemblage and action of less than one quarter of the members of the corporate body, some statute, or by-law, or established rule or regulation should be produced -to sanction the claim. None such has been or can be produced. The act of incorporation provides for holding’ corporate and church meetings for two purposes only; one of these is for the annual election of trustees, as to which the statute provides with some particularity the mode and manner of calling it, what notices aré to be given, how it shall be organized and conducted, and who. shall vote, and the qualifications of voters. The other purpose for which a meeting of the church and corporation may be held is to fix and determine the amount of the minister’s salary. There is no provision in the act as to the mode and manner of calling, organizing, or conducting a meeting specially held for the latter purpose, and for the reason, probably, that this matter of the minister’s salary could and ordinarily would be attended to at the annual meetings for the election of trustees; and that the necessity for calling or holding a special meeting, for such purpose, would seldom, if ever, arise; and for the still better reason that the statute expressly requires that the “ minister’s salary” shall be fixed and ascertained by a “majority of persons-entitled to elect trustees.” That is, a majority of dll the corporators must concur in fixing the minister’s salary. Consequently, it was of little consequence how or in what manner, or when or where, this majority assembled for that purpose, inasmuch as a meeting of less than a majority of all would be without authority; no matter how formal, particular, or extensive were the call and notice of such meeting; it was therefore useless to prescribe rules for calling such a meeting, while a meeting and concurrence of a majority would be effectual, no matter how called or noticed. The trustees, however, can be elected “byplurality of voices.” Hence the necessity in meetings for that purpose to prescribe rules for their calling, notice, assembling, and conduct, to the end that the “ plurality of voices,” however small in proportion to tire whole, may bind the whole. Except for the purposes above, mentioned, and in the mode and manner prescribed as above, it is conceded there is no statute, by-law, rule, or regulation whatever for convening or holding meetings of the body corporate. It would seem to follow, therefore, that if a meeting be convened and held for any other purpose, and in any other mode and manner, than that prescribed in the act, to have any binding authority or validity whatever it should be attended, and its proceedings participated in, by at least a majority of the corporators. It is true that in the case of People v. Peck (11 Wend., 604) the Court held that certain of the preliminary notices for the convening of the annual meeting for the election of trustees were directory merely, and not under all circumstances necessary to be complied with. But that case, it will be observed, was a controversy between two factions in the same church over the election of trustees; it being attempted by one faction, at the head of which was the minister, to unseat “ trustees ” declared duly elected, on the ground that the minister himself had omitted to give all the notices of the meeting required by the statute. In overruling this objection, the Court makes special mention and lays stress upon the conceded and undisputed fact that the meeting was attended, and its proceedings participated in, by every one of the corporators; and, inasmuch as the meeting was one authorised by the statute to be convened and held, and was held at the time prescribed by the statute, and inasmuch as the sole object and purpose of the preliminary notices were to give the corporators notice and opportunity to be present, and as they all were present, it might with great propriety be held that the object and purpose of the notices were in that case fully answered and subserved. The Court did decide, however, that the provisions of the statute in respect to the mode of organizing and conducting the meeting must be strictly observed and kept, and could not be departed from if a single corporator objected; and this, because a “plurality of voices,” though less than a majority of all, might elect. In every instance that has come under my observation where stockholders’ or corporators’ meetings, in civil or other corporations aggregate, are convened and held, they are so convened and held by authority conferred by some provision in the charter, or some by-law, rule, regulation, or special resolution previously existing, and conceded to have the force of a charter provision. I have searched hi vain for any decision or dictum ” of any court or judge holding that a minority of the members of a body corporate, without any authority emanating from the charter or the body itself, can voluntarily assemble on such notice, and at such time and place, as to themselves shall seem fit, and do any act or take any proceeding which shall bind the corporation, or any" other person than themselves. And I cannot, therefore, assent to any proposition or any reasoning by which it is sought to sustain such a claim.

It is sought to avoid the force of these objections by general propositions, to the effect that the statute has authorized these corporators to apply to the Court for leave to sell their property; that corporations usually act by agents appointed at meetings, and, as the statute prescribes no method of calling such meetings, they may be called without notice, or on any notice, &c. But I deny in toto that corporations ever are or can be bound by the acts of officers or agents, unless the acts done are either within the scope and purview of the general power and authority of such officers, or are especially authorized by some rule or resolution of the corporate body; and further, that corporations never do or can act by or through meetings of a minority of the corporators, unless such meetings are expressly authorized to be convened and held' by some authority which is binding upon or has been assented to by all. If there be no such authority, then a majority at least must act or assent. And it is questionable, where the act sought to be authorized is one not within the scope of the general powers of the corporation, whether it is not necessary to have the assent of all the corpora-tors in order to bind all. Such is certainly the rule in reference to moneyed and joint-stock corporations. At all events, I am clearly of the opinion that without such authority the proceedings of a meeting, to be of any force or effect, must be participated in, or the meeting attended by, at least a majority of the corporators, and personal notice (or its equivalent) must be given to all the corporators,' of the time and place and object of the meeting (Wiggin v. Freewill. Baptist Society, 8 Met., 301; Stow v. Wise, 7 Conn., 19).

The learned Justice at the Circuit finds as a fact that the meeting of the 29th of September was “ duly called and convened.” The finding is general. The Judge could not have intended to find as a fact that the meeting was called by any charter or corporate authority for such purpose specially made and provided; because it is conceded there was no such authority It was doubtless intended merely as an assertion of the Judge’s conclusion that the mode and manner of calling and convening the meeting were such as to make it a meeting of the body corporate, sufficient in law to confer power upon the trustees to proceed. This I have endeavored to show was error.

The objection of the defendants’ counsel respecting the difficulty and inconvenience of personally notifying the corporators of the call for the September meeting, scarcely needs comment, in view.of the fact that the corporators were but eighty in all, residing in a small compass, their names registered, and their rights as corporators depending upon their “stated attendance upon divine worship” in that church. Neither do I consider it necessary to remark upon the effect to be given to the papers entitled “ Consent of pew, holders,” and “ Consent of pew owners.” It is substantially conceded, that these papers contained the signatures of but twenty-seven corporators, and it is 'not pretended that any authority for the proceedings of the trustees could be derived therefrom.

In conclusion, I desire briefly to notice the character of the proceedings to sell this church property. The petition was sworn to the 17th of October, 1862, and on the same day, without any order to show cause or notice of presentation or examination, save of the statements in the petition, the Court “ di/rected ” the trustees to convey all plaintiffs’ property to the “ Baptist Church in Oliver street.” And on the 21st of October this order was complied with by the execution, under its corporate seal and delivery of a conveyance to the last-named church, of all plaintiffs’ property, real and personal, for the consideration of five dollars. And thereupon the existence of the religious corporation, known as the “ Madison avenue Baptist Ohurch,” was taken and considered to have ceased and determined. It seems to me clear, from the facts appearing in evidence, that these proceedings were consequent upon the agreement and action of a small number of the (probably influential) members of this corporation, and not in accordance with the deliberate judgment and desire of the whole -or even of a majority of the body corporate. It does not appear that the petition was seen or its contents known by a single corporator, save the two persons who. signed it. It does not purport on its face to be the “ application’’ of the “ corporate body.” It is the petition of the two persons who sign it, one of whom, designates himself “President,” and the other “Secretary” of the “Board of Trustees.” It purports to be the “petition-of the trustees,” &e. But it does not state the residence of trustees, or their names, and, except by inference, it does not appear that the signers of the petition were trustees even.

Were the question open to me on this appeal, I should not hesitate to hold that such a paper was not, and could not be taken to be, in any sense, the “application” of the “religious corporation” whose property it sought to affect, and that the petition was void and of no effect on its face, and all subsequent proceedings based upon it were likewise void. And further, that the Court exceeded its authority in the mode and manner of disposition, both of the realty and its proceeds.

This Court, however, on the former appeal, has held otherwise on these questions. And in that decision I so far acquiesce, that if there were no other questions in the case, I should vote for affirmance of the judgment, upon the ground of stare decisis. But I cannot concur, in opinion.

It is with regret and some diffidence that I feel constrained to dissent from the opinions of my learned and more experienced associates, but such are my convictions.

The judgment should be reversed, and a new trial granted.


source: Caselaw Access Project

author: McCunn, J. Monell, J.

license: Public Domain

text:
    WILLIAM R. CARNES, Plaintiff and Respondent, v. GEORGE W. PLATT, Defendant and Appellant.
    The office of a jury is to find facts upon conflicting evidence. If there is no dispute, and the proof is clear, it is the duty of the Court to apply the law and pronounce’ judgment. And even where the evidence is not wholly on one side, yet if a verdict would be set aside as being against the clear weight of the evidence, the Court should direct the verdict.
    Although the question whether there had been a delivery of a deed is to some extent a question of “ intent,” it need not necessarily he submitted to a jury; and where the proof is such as to repel a presumption of any intention to deliver, it is proper for the Court to withdraw the question from the jury. A question of “ intent ”, is not so exclusively a question for the jury that the Court cannot take it from them.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided May 3, 1869.]
    This case was tried before Chief-Justice Robertson and a jury.
    The action was to recover possession of certain real property in this city.
    Upon a former trial the jury found a verdict for the defendants, which upon appeal was set aside and a new trial ordered.
    On the new trial, at the close of the evidence, the defendants’ counsel made the following requests:
    First—To direct a verdict for the defendant on the ground that it was clear upon the uncontradieted evidence in the case that the deed of Charles W. Houghton to Charles L., Anthony, covering the premises in question, was delivered, and the title thereby passed from said Houghton to said Anthony, before the recovery of the judgment in favor of the Merchants’ Bank.
    Second—If the foregoing request should be denied, then to submit to the jury the question whether Charles W. Houghton handed the deed aforesaid to Wetmore with intent to deliver the same as his deed for the use of Anthony.

      Third—Whether Wetmore had authority as agent for Anthony to accept a delivery of the deed at the time it was left with him.
    Fourth—Whether the assignment of the judgment was procured from the Merchants’ Bank for the benefit and on behalf of the said Charles W. Houghton, or in collusion with him for the purpose of enforcing the same as a lien upon the premises in question.
    The justice refused each of such requests, and refused to submit any question to the jury; to which refusals, and to each of them, the defendant’s counsel excepted.
    The justice thereupon directed the jury to find a verdict for the plaintiff, for an estate for his life in the premises described in the complaint, with a right to the present possession, to which direction the defendant’s counsel duly excepted.
    The jury thereupon found a verdict for the plaintiff, in accordance with the above direction.
    The defendant appealed from the judgment.

      Mr. James C. Carter for appellant.
    The weight of the testimony was that the deed executed by Anthony to Edwin and Elijah Houghton, of the premises in question, was for a valuable consideration. As this question was taken from the jury, the defendant is entitled to the assumption that the deed was for a valuable consideration.
    It was also proved that the mortgage to the defendant was for a new and valuable consideration. A.s a conclusion of law upon the uncontradicted evidence, the delivery of the deed by Charles W. Hougton to Wetmore was valid and effectual to pass the title to Anthony, the grantee named in it (Butler and Baker’s Case, 3 Rep., 26 ; vide the learned note to Jackson v. Dunlop, 1 Johns. Cases, 114; Wheelwright v. Wheelwright, 2 Mass., 447; Hedge v. Drew, 12 Pick., 141; Goodridge v. Walker, 1 Johns. Cases, 253, n. ; McKinney v. Rhoads, 5 Watts, 343; Doe dem Garnons v. Knight, 5 B. & C., 671).

      But- let it be conceded in the fullest manner that the question, whether the handing of the deed by Houghton to Wetmore was effectual to pass the estate, is one which, turns upon the intent with which this act was done, and that such intent is to be gathered from all the attending circumstances, the direction to the jury to find a verdict for the plaintiff,,withdrawing, as it did, every question of fact from the jury, was a plain error (Brown v. Austen, 35 Barb., 341; Chonteau v. Suydam, 21 N. Y., 179; Worrall v. Munn, 1 Seld., 229; Brackett v. Barney, 28 N. Y., 333).
    It appearing, therefore, that the question is, in its natu/re, one of fact, the ruling can be defended only by showing that the evidence was so conclusive as to leave no reasonable doubt that the deed was not ha/nded to Wetmore with the intent to' deliver it. The clear weight of the ^evidence establishes the intent to deliver the deed when it was handed to Wetmore.
    It was error also to take from the jury the questions whether the judgment was purchased by Carnes for the benefit of Charles W. Houghton, and whether the plaintiff and Houghton were not fraudulently and collusively endeavoring, for their mutual benefit, to enforce the lien of this judgment.

      Mr. D. T. Walden for respondent.
    The deed from Houghton to Anthony was not delivered so as. to take effect prior to the docketing of the judgment.
    There can be no perfect delivery of a deed without acceptance by the grantee, or some one by his authority (Bracket v. Barney, 28 N. Y., 333, 340; Charlean v. Suydam, 21 N. Y., 179 ; Jackson v. Richards, 6 Cow., 617; Crosby v. Hillyer, 24 Wend., 280, 284).
    Acceptance of' a deed will, in some cases, be presumed where there is no evidence to the contrary ; the law will, from the beneficial character of the deed or other circumstances, assume that it was accepted by the grantee; there can be no presumption against the positive testimony of the grantee, that he did not accept (Church v. Gilman, 15 Wend., 556, 660-66 ; Crosby v. Hillyer, 24 ib., 285, per Nelson, Jr.; Jackson v. Brodie, 20 Johns., 187).
    It is well settled that a delivery and acceptance cannot relate back so as to affect the intervening right of third parties; the doctrine of relation is a fiction, resorted to in some instances from, necessity, to prevent injury and to uphold the deed; but, as against intervening creditors’ claims, the fiction will not be resorted to, the transaction will be left to rest upon the simple and naked truth, and the deed take effect only from the time of its acceptance (per Chancellor, Frost v. Beekman, 1 John. Ch., 297, 18 ; Jackson v. Rowland, 6 Wend., 666, 670 ; per Sutherland, J., Jackson v. Ramsey, 3 Cow., 79 ; per Thompson, J., Jackson v. Bard, 4 Johns., 234; per Thompson, J., Case v. De Goes, 3 Caines, 263; Heath v. Ross, 12 Johns., 140; Jackson v. Douglass, 5 Cow., 462 ; per Sutherland, J., Crosby v. Hillyer, 24 Wend., 284).
    The ease was properly taken from the jury, the plaintiff’s case was in effect admitted, the legal title was proved, and the defendant failed to impeach it in any way; there was nothing in the testimony for the jury to consider, and if it had been left to them, and they had found for the defendant, it would have been the duty of the Court to set aside the verdict as against evidence (Godin v. Bank of Commonwealth, 6 Duer, 76 ; Herring v. Hoppock, 25 N. Y., 413 ; People v. Cook, 8 ib., 67, 75 ; Besson v. Southard, 10 ib., 236 ; Bowne v. Brahe, 3 Duer, 35).

       See 6 Robt., 270, for a full statement of the facts.

   McCunn, J.

The appeal presents but a single issue for decision in this Court; and that is, was the conveyance from Houghton to Anthony of the premises in controversy delivered before the 10th of August, 1854, the date of record of the judgment of the Merchants’ Bank of Boston v. Charles W. Houghton % If the docketing of the judgment be prior to the delivery of the deed, then the title of the respondent is indefeasible. If the delivery of the deed were prior to the record of the judgment, then the appellant is entitled to a new trial.

The delivery is essential to the effect of a deed; and that effect is determined not by the nominal date, but by the legal delivery of the conveyance.

And, when the circumstances are undisputed, delivery or no delivery is a -question for the Court.

On the uncontrovprted facts of this case, I infer, as matter of law, there was no delivery of the deed from Houghton to Anthony previous to the docketing of the judgment in favor of the bank.

Acceptance by the grantee is indispensable to an effective delivery. An absolute acceptance by an agent may operate a good delivery to the grantee. But, in the first place, it is apparent, on the face of the transaction, that Wetmore was the agent of Anthony to examine the title, and for no other purpose; and, secondly, that he did not in fact assume to accept the conveyance, lie held it until the return of Anthony to the city; and the judgment having been meanwhile recovered and docketed against the grantor, Mr. Anthony, the grantee, then declined to accept the deed. Acceptance of a beneficial conveyance may be presumed ; but the presumption in this case is repelled by the positive refusal of Anthony.

By reason of the cloud on Houghton’s title, arising from the judgment, Anthony refused to consummate the arrangement of which the delivery and acceptance of the deed were essential conditions; and by the abandonment of the whole arrangement by Anthony, the conveyance necessarily became a nullity. The consideration of the conveyance was the release by Anthony of an attachment on Houghton’s property ; but on discovery of the cloud upon Houghton’s title, Anthony proceeded to enforce his attachment. Here is the strongest possible evidence of rejection of the deed by Anthony, and neither he nor his privies can now be heard in a court of justice to assert the operative effect of the repudiated conveyance.

It is an elementary rule, which forbids a man to blow hot and cold with reference to the same transaction—to insist at different times on the truth of each of two conflicting allegations, according to the promptings of his private interest (Broom’s Legal Maxims, 4th ed., 169).

The judgment of the Court below finds support as well in technical law as in substantial justice.

Monell, J.

(concurring). The new trial of this action was upon substantially the same evidence as was given upon the first trial. The only difference claimed by the appellant’s counsel is in respect to the consideration of the deed from Anthony to Edwin and Elijah Houghton, and the consideration of the mortgage to the defendant.

Upon the first trial, it seems to me, the charge to the jury must be deemed to have assumed that there was sufficient proof of a delivery of the deed to the defendant, and the jury were instructed that if they found either that it was agreed between Anthony and Charles Houghton to take the property in question and release the Rhode Island property, or that the purchase of the judgment in Boston was really made for the benefit of Houghton, they should find for the defendant.

' Upon the appeal, the charge was held to be erroneous, not for assuming that there had been a delivery of the deed to Anthony prior to the title acquired by the plaintiff (which the learned justice who delivered the opinion of the Court would not admit had been assumed), but for assuming that the mere making of the agreement between Anthony and Charles Houghton transferred the legal title to Anthony, nevertheless, I think the question of the delivery of the deed to Anthony was involved, and if, required, as it certainly did receive, an examination of all the evidence touching such alleged delivery; and, as the Court then distinctly decided that point, it is res judicata.

The questions then examined were whether the leaving the deed with Wetmore was a delivery thereof by Houghton, as his deed to Wetmore for the use of Anthony, with intent to pass the title to Anthony, whether such deed was then accepted by Wet-more, he being authorized by Anthony to accept it for him; and whether there was any such acceptance by Anthony in September as would relate back to the day of the leaving the deed with Wetmore, and cut off intervening rights?

Upon these several questions the Court examined all the evidence, and decided that they must be answered in the negative.

There was nothing, therefore, on the second trial for the jury to pass upon, so far as related to the delivery of the deed to the defendant, unless, as is now claimed by the appellant’s counsel, the question of delivery was so entirely a question of fact that it could not correctly be taken from the jury.

The office of a jury is to find facts upon conflicting evidence. If there is no dispute and the proof is clear, then it is the duty of the Court to apply the law and pronounce judgment. And even where the evidence is not wholly on one side, yet if a verdict would be set aside as being against the clear weight of the evidence, the Court should so direct the verdict.

In this case there was not any dispute or conflict in the evidence establishing the facts constituting what was claimed to be a delivery of- the deed to Anthony; and the Court had the right, and it was its duty, to say which of the parties, upon such undisputed facts, was entitled to a verdict from the jury. And the learned justice following, as he was bound to do, the decision of the General Term, held the facts insufficient to constitute a legal delivery.

I do not find any thing in tills case which takes it out of the ordinary rule regulating trials by jury; and the only distinction which was attempted to be taken was that the alleged delivery and acceptance of the deed was a question of “intent” and therefore should have been determined by the jury. But I cannot admit there is any such distinction. If the facts and circumstances are such as to repel a presumption of an intention to deliver and accept, and the only conclusion which could legitimately be reached is that there could not have been an intention to deliver or accept, then it cannot be said there was any conflict) or that the jury should pass upon the question.

Under the statute relating to fraudulent conveyances, where fraud is made a question of “fact” it has been decided (Gris-. wold v. Sheldon, 4 N. Y. R., 581) that it was the duty of the Court to nonsuit, where the conveyance, under which the plaintiff claimed, appeared upon its face to be fraudulent. To the same effect is Edgell v. Hart, 9 N. Y. R., 213, in which a chattel mortgage was attached on the ground of fraud, and it was there said, if the facts are undisputed, the court should direct the judgment; and a non-suit was sustained. And in Butherson v. Jones, H. & D. R. (Lalor), 171, it is said that, although the inference is one to be drawn by the jury, yet, where the weight of the proof is so decisive that if the jury had found against it a new trial would be granted, it need not be left to them. That case involved a question of delivery of a deed.

Hone of the cases cited by the appellant’s counsel reach the point I am considering; nor am I aware of any case or principle which renders a question of intent so purely and exclusively a question for the jury that the Court cannot take it from them.

In this ease, therefore, as this Court has held upon the same facts that there had not been a delivery of the deed to Anthony prior to the recovery of the judgment against Houghton, it woixld have been error to have left the question of delivery to the jury.

The appellant’s counsel requested the judge below to submit to the jury whether the assignment of the judgment was procrn-ed from the Merchants’ Bank for the benefit and in behalf of Houghton, or in collusion with him, for the purpose of enforcing it as a lien upon the premises.

There was no attack made upon the judgment. That must have been conceded to have been valid; and I do not, therefore, see in what manner the allegation of obtaining the assignment of a good judgment for a small or inadequate consideration can very well affect the title made under it. It was so held when this case was up on the first appeal, and the evidence is no stronger now than it was then.

I have not found any evidence showing that the purchase of the judgment was made for Houghton, or that he had any beneficial interest in the purchase. Mrs. Carnes paid the consideration,-whatever it was, and however much her husband may have desired to befriend or assist Houghton, there was nothing shown in the transaction of any collusions or fraud between them which could in any way affect or impair the rights 'of the assignee. If the bank was imposed upon or overreached, it alone can complain. It would not, most certainly, invalidate a title obtained under.the assigned judgment; nor would it authorize a preference to be given to either subsequent grantees or creditors. At any rate, the evidence fell much short of showing that the judgment was assigned only nominally to Mrs. Carnes, and really to Houghton, so as to authorize a finding that the latter was the real owner of the judgment. Any thing short of such evidence would not support the allegations in the answer to which the proof was directed.

I have noticed all the requests to submit questions to the jury, and no claim can now be made that there were others which ought to have been submitted.

I am satisfied there was no error committed at the trial, and that we should affirm the judgment.


author: Freedman, J. Monell, J.

text:
    SAMUEL L. GRAHAM, Plaintiff and Respondent, v. ROBERT L. MAITLAND, Survivor, &c., Defendant and Appellant.
    In cases where the damages to be recovered depend upon the market value of the goods, the law contemplates a range of the entire market, and the average of prices as thus found, running through a reasonable period of time. Proof of a single sale is insufficient to establish the market value of the goods so sold.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided May 3, 1869.]
    This action was to recover damages alleged to have been sustained by reason of alleged violation of instructions in regard to sale of cotton consigned by the plaintiff to the defendants as commission merchants in New York City, and was tried before a referee.
    The case came up on ,appeal to the general term on exceptions to the referee’s report. The principal exception raised the question as to the value of the cotton in controversy. The plaintiff charged the defendant with selling in disobedience to orders. The defense was that the defendant sold according to instructions, and in trying the issue it became necessary to show what was done with the Coholl consignment. The referée found that a part of the consignment was sold in violation of instructions, and took as his measure of damages the price at which four bales of the consignment were sold on a particular day, making a deduction from this price of two cents for difference of quality. The referee, in estimating the damages, took the value of the cotton on the 21st day of October, 1865. The testimony as to the market value was introduced incidentally, being put in evidence on the question of instructions to sell. The instructions relied on by the plaintiff were given on the 11th of October, and the only evidence of what cotton sold for on the 21st of October is obtained from the account of sale of four bales of cotton on that day.

      Mr. Henry A. Cram for appellant.
    The measure of damage was the market value of the cotton at some subsequent time. This the plaintiff was bound to prove, and, failing to prove, could not recover. Evidence of a single sale, by either the defendant or by some third party, of four bales on a particular day, is not sufficient evidence of market value.
    The market value of the cotton should have been proved.
    “ The ordinary and proper manner of ascertaining such value (market value) is by the examination of witnesses acquainted with the market prices,” &c. (Dana v. Fiedler, 1 E. D. Smith, 470).

      “ The rule of damages was correctly laid down by the Court, and the market value of the article' * * * requires an investigation of the actual condition of the market ” (same case, 2 Kern., 47).

      “ The law, in regulating the measure of damages, contemplates a range of the entire market, and the average of prices as thus found, running through a reasonable period of time ” (Smith v. Griffith, 3 Hill, 333).

      Mr. Edgar S. Van Winkle for respondent.
    The case turned upon a question of fact, namely, whether the plaintiff gave the instructions which it is claimed he did in regard to the holding and sale of a certain quantity of cotton which had been consigned by him to the defendants in the summer and autumn of 1865.
    That question of fact the referee has decided in favor of the plaintiff.
    Upon that question conflicting testimony was' given by the respective parties, and the referee having found in favor of the plaintiff’s statements, his report is conclusive, unless it is against-the clear preponderance of the testimony (Van Steenburgh v. Hoffman, 15 Barb., 28; Woodin v. Foster, 16 Barb., 146 ; Sinclair v. Tallmadge, 35 Barb., 602; Dunning v. Roberts, 35 Barb., 468; Smith v. McClusky, 45 Barb., 610; Colwell v. Lawrence, 24 How., 326; Davis v. Allen and others, 3 N. Y., 168; Miller v. Lockwood, 32 N. Y., 293).
    The proof of market value was sufficient.
   Freedman, J.

The referee found that the plaintiff, on the 11th day of October, 1865, instructed the defendant to sell fifty bales of cotton, consigned to and received by the defendant since the 6th day of September, 1865. The plaintiff’s testimony shows that the said instruction was given by the plaintiff in a letter to the defendant, dated Pinewood, Tenn., October 7, 1865, as follows: “ I wish all this cotton sold, but insist that it should be held at the full price of middling cotton. If it will not command this price, after holding it on the market for a sufficient length of time, you will take what it will command,” &c., &e., and that the plaintiff, in another letter dated from the same place, October 11, 1865, addressed the defendant as follows: ‘‘I trust you will get me a good price for this cotton; at all events, if it is not sold when this reaches you, I wish it sold at the best price it will command,” &c., &c. The defendant, therefore, was not instructed to sell without the loss of a moment’s time upon the very day of the receipt of the order, but bad a reasonable time thereafter within which to negotiate and effect a sale at the best possible market price, and the measure of damages consequently is the market value of the cotton during that period of time. Such value the plaintiff was bound to establish affirmatively, by competent evidence, as a part of his case.

There is no evidence that the forty-nine bales of cotton previously sold in violation of prior instructions to hold the same, until expressly instructed to sell, were of the quality or grade denominated middling, and could be sold as such; on the contrary, the defendant showed that the said bales were of an inferior quality, termed low middling. It appears, however, that on the 21st day of October, 1865, the defendant sold for plaintiff’s account four other bales of cotton, which were middlings, at fifty-eight cents per pound, and that sometimes the difference in price between middling and low middling ranged from one cent to two and a half cents per pound, according to the scarcity of the one grade or the greater quantity of the other, and from these facts alone the referee found that the market value of the forty-nine bales on the 11th day of October, 1865, was fifty-six cents per pound. There is also evidence to the effect -that in consequence of advices from England the cotton market in the month of October, 1865, became very agitated and unsettled. The important question therefore arises whether upon the facts as alleged the finding of the referee in regard to said market value can be sustained. To ascertain the same required an investigation of the actual condition of the market on the 11th day of October, 1865, and for such a short time thereafter as the defendant might have claimed as being necessary for the purpose of negotiating and effecting a sale at the best possible price. The law, in regulating the measure of damages and fixing the market value in a case of this description, contemplates a range of the entire market and the average of prices as thus found, running through a reasonable period of time (Smith v. Griffith, 3 Hill, 333).

The ordinary and proper mode of ascertaining such value is by the examination of witnesses acquainted with the market prices of the article during that time. The actual sales of the same article during said time in the market generally might, in this case, have furnished a proper standard of such value; and, in the absence of any other means to fix said value, the plaintiff might have even resorted to the opinion of witnesses dealing in the same article, as formed from their general knowledge of the business (Dana v. Fiedler, 1 E. D. Smith, 463; same case, 12 N. Y., 40).

But no case can be found in the books in which proof of a single sale has been held sufficient evidence to establish the market value of the article so sold; and the difficulty in the present case is further increased by the fact that the four bales of cotton sold on the 21st day of October, 1865, were not even of the same'quality.

The evidence is insufficient to sustain,the finding of the referee upon this point, and the judgment entered in pursuance of said report. The judgment, therefore, should be set aside, and a new trial ordered, with costs to abide the event, and the order of reference should be vacated. '

Under these circumstances it is unnecessary to consider the other points raised by the defendant.

Monell, J.

(concurring). -1 think the referee in this case assessed the damages upon insufficient proof of the market value of the cotton. Hone of the usual proof of market value was given. Indeed, no proof whatever had been given when the plaintiff closed his case. On the part of the defendants, Wright, one of their clerks, testified that he had made up a table showing the dates of arrival, and times of sales and times of shipment of cotton, which was read in evidence. Such table contained, among other items, the following : Four bale's shipped by Graham, September 18; shipped by Hamilton, September 26 ; received by Maitland, October 11; sold by Maitland, October 21—58 cents.” Upon this table, showing a sale on the 21st of October, by the defendants, of four bales at 58 cents, the referee, without any further or other proof of the market value, fixed such market value at 56 cents.

I am inclined to think the rule of damages adopted by the referee was correct. Upon a sale by an assignee, in violation of instructions, the owner is entitled to damages, to be ascertained from the highest market value of the commodity between the period when the instructions were disobeyed'and a reasonable time thereafter, within which to commence an action for their recovery (Scott v. Rogers, 31 N. Y. R., 676). Proof, therefore, of the sale by the defendants of four bales, on the 21st, at 58 cents, was sufficient proof of value ás related to the four bales. But the referee has deemed it sufficient proof also of the value of the forty-nine bales previously sold. It was at most proof of a single sale, which has never, I believe, been regarded as sufficient proof of market value (Smith v. Griffith, 3 Hill, 333), and although it was some and probably competent evidence against the defendants, it was not by itself sufficient (Smith v. Griffith, supra). 1 do not see why this piece of evidence should be taken any more strongly against the defendants because it was furnished by themselves. It is at most an admission that they sold four bales of the plaintiff’s cotton for 58 cents. Had the same fact been proven by any other testimony, I do not think it would be claimed to be sufficient to establish market value; and to give it the effect which the reféree seems to have yielded to it, would make it operate as an estoppel upon the defendants to show that the market value was below the price they obtained for the four bales.

. I think that the evidence did not justify the referee’s finding the value of the cotton to he 56 cents, and I therefore, for that reason, concur in reversing the judgment.