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

with the addition of a few more sections, on the 5th April, 1813. The act of the 5th April 1813, was not revised or repealed when the Revised Statutes were adopted, and it still remains in force (see 3 Rev. Stat. 244, 3d ed). Section 11 of the act of 5th April provides that the chancellor, upon the application of a religious corporation, &c., may make an order for the sale of any real estate belonging to such corporation and may direct the application of the proceeds of the sale, &c. In Dutch Church in Garden street vs. Mott (7 Paige 81), the chancellor held that the 4th section of the act of March 1801 transferred to the trustees of an incorporated religious society, without any conveyance, the legal title of any real or personal property held in the name of others upon a mere naked trust, for the use of the church or congregation, or of the corporators. The 4th section of the act of the 5th April 1813, is a literal copy of the 4th section of the act of March 1801.

Daniel Deforest and his associates who, as the building committee appointed by the congregation, purchased the site of the new church, by taking the deed in their own individual names as grantees, 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, immediately transferred to the trustees of the corporation. It may be objected, as the use or trust in favor of the corporation is not expressed in the deed, or manifested by some declaration of trust in writing, that it is void under the statute of frauds; which declares that no trust can be created unless by act or operation of law, or by a deed or conveyance in writing (2 R. S. 135, 86, 1st ed.). I think, however, that the language of the 4th section of the act to provide for the incorporation of religious societies is sufficiently comprehensive and explicit to give effect to a use or trust in favor of an incorporated religious society, although not expressed in the conveyance to the trustees or in a declaration of trust. The words of that section are, that the trustees of the religious society when incorporated, “ shall hold and enjoy all estates belonging to the society, in whatsoever manner the same may have been acquired, or in

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

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.” The statute of frauds, passed the 26th February 1787, was not reenacted in either the revisions of 1801 or of 1813. It was, however, revised and consolidated in the Revised Statutes of 1830. The act to provide for the incorporation of religious societies was reenacted in both 1801 and in 1813. I am inclined to believe that the intent of the legislature was to give effect to even a parol trust in favor of a religious corporation. The subsequent reenactments of the act to provide for the incorporation of religious societies, without reenacting the statute of frauds, may be regarded as a modification or amendment of the statute of frauds, so far as to make a use or trust in favor of a religious society an exception to the provision of the statute of frauds, which required that declarations of trust should be in writing. That part of the statute of frauds, which relates to the creation of estates or trusts in lands being by deed or conveyance in writing contained in the Revised Statutes may be regarded as a mere consolidation and publication therein of that part of the old statute of frauds. And such consolidation and publication will not be deemed to alter the old statute of frauds so far as it effects uses and trusts in favor of religious societies (3 R. S. 184, 3d ed. Repeal Act, $2; 2 Hill, 380, note C.)

In Tucker vs. The Rector &c. of St. Clements Church (8 v. N. Y. Legal Observer, p. 257,(No. 8). The Superior Court of the city of New York decided that the powers of religious corporations incorporated under the general act, were not affected by the provisions of the Revised Statutes in relation to uses and trusts. See opinion of DUER, J. If the article of the Revised Statutes in relation to uses and trusts) which enacts the most radical changes in the law of uses and trusts) is not applicable to religious corporations incorporated under the general act, the 5th section of the title in relation to fraudulent conveyances (2 R. S. 135) requiring the creation of estates or trusts in lands to be by deed or conveyance in writing which is a substantial reenactment of section 10, and part of section 12 of the old statute of

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

frauds, without material alteration, should not be deemed applicable to uses and trusts in favor of such religious societies.

But under another view which may be taken of this case, the corporation had an equitable interest in the new church edifice and lot, which a court of equity will protect. It is a rule in equity that no party is permitted to purchase an interest in property and hold it for his own benefit, where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account and for his individual use (Van Eps vs. Van Ep. 9 Paige, 241; Torrey vs. Bank of Orleans, id. 649). And if he takes a conveyance in his own name he will in equity be considered as holding the estate in trust for his principal or cestui que trust (Sweet vs. Jacocks, 6 Paige, 355); and a subsequent purchaser with notice of the trust becomes a trustee chargeable with the trust, notwithstanding he may have paid a full consideration (I John. Ch. 450, 566; 4 John. Ch. 135). In this case Deforest and his associates acted as agents and trustees of the corporation or of the corporators, in the purchase of the site of the new church and in the erection of the new church thereon. They paid for the lot and the expenses of the new church with moneys belonging wholly to the corporation. The moneys so paid were composed of the proceeds of the old church lot and edifice and of moneys raised by subscription from the members of the congregation, which are to be regarded as donations to the corporation and therefore as belonging to the corporation. Deforest and his associates took the legal title to the new church lot as mere naked trustees of the corporation, and the equitable estate of the corporation as cestui que trust therein was immediately by the 4th section of the act for the incorporation of religious societies turned into a legal estate. The evidence shows that S. Voorhees had at least a knowledge of facts sufficient to put him on inquiry as to the trust in favor of the corporation at the time he purchased the pew in question; and having such notice he purchased subject to all the legal and equitable rights of the corporation in the new church lot and the new church edifice; and as at the time Voorhees received from the building

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

committee a deed of the pew in question, they had no title to, nor any right to convey the same, he acquired under his deed no estate whatever in the pew.

The counsel for the plaintiffs contend that the article of Uses and Trusts in the Revised Statutes is applicable to religious corporations, and that no trusts in favor of a religious society or corporation are now valid unless they are authorized by that are ticle. If this doctrine is to be received it would subvert all simple trusts in favor of a religious society not incorporated; and the trustees of the society when incorporated under the general incorporating act, would have no right or power as authorized by the 4th section of that act to take into their custody real estate which may have previously been granted to trustees for the use of the society. The act to provide for the incorporation of religious societies was neither revised or repealed when the Revised Statutes were adopted. And I believe that act remains in force with all the attributes it possessed previous to the adoption of the Revised Statutes. The Superior Court of the city of New York in the case of Tucker vs. the Rector &c., of St. Clements Church (supra), came to this conclusion. In that case Duer, J. and his associates Justices Mason and CAMPBELL, held that the powers of religious corporations, incorporated under the general act, were not affected by the provisions of the Revised Statutes in relation to uses and trusts. Notwithstanding the modification of the law of uses and trusts by the Revised Statutes a conveyance to a. person for the use of a religious society not incorporated, made since the adoption of the Revised Statutes, will create a valid trust in favor of such society; and the 4th section of the act to provide for the incorporation of religious societies will immediately on the incorporation of the society transfer the legal title to the trustees of the corporation. If the article of uses and trusts in the Revised Statutes should be regarded as applicable to religious corporations, a conveyance in trust for, or for the use of, an incorporated religious society, would by virtue of the 47th section of that article pass the legal estate directly to the corporation (Wait vs. Day, 4 Denio, 442).

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

But if there should be any doubt about sustaining the validity of a trust in the new church edifice and lot in favor of the corporation, upou either of the foregoing grounds, there can be no doubt that the trust was valid as a resulting trust, either at common law, or under the article of the Revised Statutes relative to uses and trusts. I have already stated that the facts of the case authorize me to find that the purchase money for the new church lot was wholly paid for by the religious corporation. At common law, if a conveyance of real estate is made to one person, and the consideration is paid by another, a trust in equity results in favor of him who paid the money. The Revised Statutes have modified this rule of the common law and provide that no such trust shall result in favor of the person paying the consideration, unless the conveyance shall have been taken without his consent or knowledge in the name of the alienee (10 Paige, 567; 2 R. S. 14, 9851, 2, and 3, 3d ed.; 4 Kent Com. 305, 306). In this case there is no evidence that either the trustees of the

congregation or the corporators, either consented that Deforest and his associates should take the deed of the new church lot in their own names, or that they or any one of them had any knowledge at thetime of the execution and delivery of the deed, that it was so taken. A trust therefore resulted in favor of the corporation and the beneficial interest of the corporation in the lot was immediately by the 45th section of the article relative to uses and trusts, or by the 4th section of the general act for the incorporation of religious societies turned into a legal right (Wait vs. Day, 5 Denio, 442; 7 Paige, 181). The evidence shows that the plaintiff S. Voorhees, had knowledge of facts sufficient to put him on inquiry as to the trust in favor of the corporation. It is a well settled principle that if a party acts in the face of facts and circumstances which are sufficient to put him on inquiry, he acts contrary to good faith and at his peril (Anderson vs. Van Allen, 12 John. 345). The plaintiffs therefore do not bring themselves within the 54th section of the article relative to uses and trusts. They are not purchasers without notice of the resulting trust in favor of the corporation, within the meaning of that section. The

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