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Voorhees and Wife agt. Presbyterian Church of Amsterdam and others.

for a certain sum, as he alleges, and West afterwards recovered the whole amount, that seems to be a matter between him and Huling the payor. No liability of Carpenter therefor is suggested. This then is irrelevant. But the plaintiff Carpenter goes further, and expressly alleges and charges that West and Van Benthuysen “some one or both of them, have been guilty of the crime of forgery in crossing or obliterating “ the endorsement, and that it was done to cheat and defraud the plaintiffs. As to Van Benthuysen, this seems to be the only connection he has had with the note; for it does not appear that he ever heard of it before. As to West, the charge, if true, is wholly irrelevant, and not issuable in this cause, and bears cruelly upon his moral character, and is therefore scandalous; more so I think than in case of Simpson ex parte (supra), and Somers v. Torrey (5 Paige, 54), where the matter was expunged with evident marks of reprobation. The general charge of their dishonest and fraudulent acts to obtaining the judment, is also not issuable and is scandalous.

The motion must be granted with costs.

5 How. 68-AFFIRMED, 17 Barb. 103.

SUPREME COURT.

VOORHEES & WIFE agt. THE PRESBYTERIAN CHURCH of Amsterdam

Village and others.

Where a religious society, incorporated and organized under the act to provide

for the incorporation of religious societies, passed 27th March 1801, appointed D, D, and others, all members of the congregation, a building committee (on the 25th Nov. 1830,) for the purpose of purchasing a new church site and of erecting a new church edifice thereon; which purchase was made and a deed taken in their own names as individual grantees, (instead of the trustees of the society), and subsequently erected a church edifice on the premises so purchased; all being paid for with moneys raised by the society, on sale of the old church lot and by subscription. Then this building committee by an absolute conveyance (dated 9th Aug. 1832), granted and conveyed to S- V~, in consideration of $43, Pew No. 45 in the new church. Subsequently, the building committee, by deed (dated May 26, 1834), conveyed to the Trustees of the corporation the new church lot and edifice, reserving

Voorhees and Wife agt. Presbyterian Church of Amsterdam and others.

therein "to the owners of the pews or slips the right to use the same in perpetuity.” And in pursuance of a vote of the congregation, the Trustees (in 1848), made extensive alterations and repairs in the interior of the church, by which the pew of S. V. was removed and the pulpit erected upon its place. In an action by S. V. against the church and trustees to recover possession

of his pew, and damages for his ejection therefrom and for its removal, &c. Held, that the conveyance to S. V. of Pew No. 45, not being authorized by the

act to provide for the incorporation of religious societies (supra), was void,

and conveyed no title to him. D. D. and his associates acquired and held the title as mere naked trustees for the

use of the congregation. And this legal title was by the 4th section of the act of April 1813 (same as in 1801), immediately transferred to the trustees of the corporation. That act being sufficiently comprehensive to take the case

out of the statute of frauds (2 R. S. 135, 86). It seems, that by that act effect may be given to even a parol trust in favor of

a religious corporation. But the corporation had an equitable interest in the new church edifice and lot

to be protected. D. D. and his associates took the conveyance in their own names; but the consideration therefor having been paid by the corporation, they must be considered, in equity, as holding the estate in trust for their principal or cestui que trust. And this equitable estate of the corporation was immediately by the 4th section of the act (supra) turned into a legal estate. And a subsequent purchaser, with notice of the trust, becomes a trustee chargeable with the trust, notwithstanding he may have paid a full considera. tion. S. V. at the time he took his conveyance, having a knowledge of facts sufficient to put him on enquiry as to the trust in favor of the corporation, pur. chased subject to all the legal and equitable rights of the corporation in the church lot and edifice. And as D. D. and his associates had no title, nor any

right to convey, S. V. acquired under his deed, no estate whatever in the pew. But the trust in the new church edifice and lot in favor of the corporation can

be sustained as a valid resulting trust, either at common law or under the

article of the Revised Statutes relative to Uses and Trusts. There being no evidence in the case that either the trustees of the congregation

or the corporators, either consented that D. D. and his associates should take the deed in their own names, or that they had any knowledge, at the time, that it was so taken; and the consideration having been paid by the corporation; a trust therefore resulted in favor of the corporation; and the beneficial interest in the premises was immediately by the 45th section of the article relative to uses and trusts, or by the 4th section of the general act (supra), turned into a legal right. S. V. not being a purchaser without notice of the resulting trust, does not come within the 54th section of the

article relative to uses and trusts. The trustees of the congregation had an equitable title to the church edifice,

even if the legal title to the lot was not in them. S. V. being regarded as purchaser with notice of this equitable interest, took his title to the pew subject thereto.

Voorhees and Wife agt. Presbyterian Church of Amsterdam and others.

Under either of the cases mentioned, S. V. acquired no title whatever, either

legal or equitable to the pew in question by the conveyance of D. D. and his

associates. Regarding however the deed to S. V. (after a conveyance to the trustees by D.

D, and his associates) as a deed from the trustees of the corporation, held, that the trustees of a religious corporation, incorporated under the act to provide for the incorporation of religious societies, can not make an absolute sale, in perpetuity, of the pews of the church, without the reservation of rent in the deeds of conveyance. They have no power except such as is derived from that act; and that, only authorizes them to demise and lease the real estate (or sell absolutely under the chancellor's order, or to rent the pews of

the church. But if the trustees had executed a valid lease of Pew No. 45 to S. V. he could

not maintain an action against the trustees to recover possession of it, or the place formerly occupied by it. The right acquired by S. V. would have been a right to the use of the pew during divine service' “in subordination to the more general right of the trustees in the soil and freehold,” His title would

be subject to the right and power of the trustees to alter and repair the church. The interest of a pewholder in his pew, is a qualified interest. It is limited to

its use during divine worship. It is limited too as to time. If the house is

burnt or destroyed by time, the right is gone. A pewholder has a remedy where his pew is destroyed for convenience only; or

where the trustees have been guilty of a wanton and malicious abuse of their power, in destroying it. The only remedy is, by an action to recover damages by way of an indemnity for the loss of his pew.

Montgomery Circuit, Feb. 1850. This cause was tried at the Montgomery circuit by the court. The action was brought to recover possession of Pew No. 45 in the church of the defendants or the place formerly occupied by such pew in the church edifice, and damages sustained by reason of the trustees of the church entering upon such pew and ejecting the plaintiffs therefrom and removing such pew with the appurtenances, &c. It appeared by the pleadings and was conceded on the trial that the church was regularly incorporated in 1807 under the general incorporating act of 1801 (1 Webst. & Skin. ed. 338); and that the other defendants were the trustees of the church. On the 25th Nov. 1830, David Deforest and others, all members of the congregation, were appointed by the congregation a building committee for the purpose of purchasing a new church site and of erecting a new church edifice thereon. This building committee by deed bearing date the 25th Nov. 1830, purchased a church lot, and instead of

Voorhees and Wife agt. Presbyterian Church of Amsterdam and others.

taking the deed in the names of the trustees of the society, took it in their own names as individual trustees. They after the purchase of the lot proceeded to erect and erected a church edifice thereon. The church lot and edifice were paid for with moneys raised from the sale of the old church lot and edifice owned by defendants and out of subscriptions by members of the congregation. After the new church edifice was erected, the building committee, by an absolute conveyance dated the 9th August, 1832, in consideration of $43 to them in hand paid, granted and conveyed to the plaintiff Samuel Voorhees, and his heirs and assigns, pew No. 45 in the new church edifice, described as being in the new brick Presbyterian church in the village of Amsterdam. This conveyance was signed and sealed by the grantors, but not witnessed or acknowledged. On the 1st January, 1840, S. Voorhees assigned all his right and interest in said deed to Betsey R. Voorhees his wife, the other plaintiff, in consideration of one dollar. This assignment was signed and sealed by S. Voorhees, but not witnessed or acknowledged. The conveyance of the pew to S. Voorbees and assignment to his wife were objected to as evidence on the ground that their execution were neither acknowledged nor attested by a witness. By deed dated May 26th, 1834, the building committee conveyed to the trustees of the corporation the new church lot and edifice, reserving therein “to the owners of the pews or slips the right to use the same in perpetuity.” Several years since the plaintiffs ceased their attendance upon divine worship at this church; but they have continued to rent their pew to members of the congregation. Most of the owners of the pews have surrendered their pews to the trustees to be rented for the purpose of raising means to pay the salary of the minister. In 1848 the church edifice needed extensive repairs, and the increase of the society required additional seats for the accommodation of its members. In that year in obedience to a vote of the members of the congregation, the trustees thoroughly repaired the church and caused all the old pews and slips to be removed, and others to be constructed, and the whole arrangement of the interior of the edifice to be altered and improved,

Voorhees and Wife agt. Presbyterian Church of Amsterdam and others.

and the pulpit to be taken down and a new one erected and its site to be changed. In this new arrangement, the plaintiff's pew was taken down and removed and the pulpit erected in its place. The repairs and alterations were judicious and required by the good of the society. Under the new arrangement of the seats, more persons can be seated in the church than could have been done before. The means of paying the expense of the repairs, were raised by subscription. Ever since the new edifice was erected in 1830, it has been used as a house of divine worship, and there has been maintained in it a stated preaching of the gospel.

T. B. MITCHELL and O. Meads, for Plaintiffs.

C. B. Cochran and D. P. Corey, for Defendants. Paige, Justice.—The Presbyterian Church of Amsterdam village, &c., one of the defendants, was regularly incorporated under the act to provide for the incorporation of religious societies,” passed 27th March 1801. The 4th section of that act provided that the trustees of the congregation incorporated under the act were authorized and empowered to take into their possession and custody all the temporalities belonging to the congregation whether the same consisted of real or personal estate, and whether the same should have been given, granted or devised directly to such congregation, or to any other person for their use. That section also authorized the trustees to recover, hold and enjoy all the debts, demands, rights and privileges, and all churches, meeting houses, &c., with the appurtenances, and all estates belonging to such congregation in whatsoever manner the same may have been acquired, or in whose name soever the same may be held, as fully and amply as if the right or title thereto had originally been vested in the trustees; and also to purchase and hold other real and personal estate, and to demise, lease and improve the same for the use of the congregation, &c.; and also to repair and alter their churches or meeting houses and to erect others if necessary, and to regulate and order the renting of the pews in their churches or meeting houses.

This general incorporating act was reenacted in haec verba

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