Montgomery agt. Johnson, 9 How. Pr. 232

Welles, Justice. The answer states that in 1807 a religious society was formed in the usual way in the town of Prattsburgh, by the name of “ The Prattsburgh Religious Society,” &c. The defendant derives his title from the trustees of this society by purchase; and one question presented is, whether the trustees had the power to confer upon him any such title as he claims. The answer states that the corporation was formed in the usual way. I know of no usual way of creating religious incorporations, which existed at the time this one came into existence, but that prescribed in the act entitled “

An act to provide for the incorporation of religious societies,” passed March 27th, 1801. (1 K. & R. 336; Ed. of the statutes published by Chas. R. and Geo. Webster, Albany, 1802.) I shall assume, therefore, that the “ Prattsburgh Religious Society ” was incorporated in pursuance of that act, which contains no provision conferring authority upon the trustees to sell any portion of the real estate.

The 4th section, which enumerates the powers of trustees of religious corporations, contains the following clause: ic And such trustees shall also have power to make rules and orders for managing the temporal affairs of such Church, congregation, or society, and to dispose of all moneys belonging thereto, and to regulate and order the renting the pews in their churches and meeting-houses, and the perquisites for breaking of the ground in the cemetery or church-yards and in the said churches and meeting-houses, for burying the dead, and all other matters relating to the temporal concerns and revenues of such Church, congregation, or society,” &c.

There is no other

section or clause in the act which vests in the trustees any power of alienation or disposition of the pews in the church or meeting-house. And this is certainly not a power to sell or dispose of in fee. It is no more than a power to lease the pews for a limited time, with a reservation of rent. The same provision is contained in the act of the same title, reenacted with additional provisions April 5, 1813. (1 R. L. 212; 3 R. S. 244,3d ed.) By the eleventh

section of the last-mentioned act, the chancellor has power, on application of any religious corporation, to order the sale of the real estate belonging to such corporation. There is no pretence that the sale of the slip in question to Tichnor was under or in pursuance of this section. The general common law power of corporations in regard to the disposition of their property, real as well as personal, is coextensive with that of natural persons. It is not limited as to objects or circumscribed as to quantity.

But with regard to religious corporations, chancellor Kent says:—“ The better opinion upon the construction of the statute for the incorporation of religious societies is, that no religious corporation can sell in fee any real estate without the chancellor’s order. The powers given to religious societies, incorporated under that act, are limited to purchase and hold real estate, and then to demise, lease, and improve the same for the use of the congregation.

This limitation of the corporate power to sell is confined to religious corporations; and all others can buy and sell at pleasure, except so far as they may be specially restricted by their charters or by statute.” (2 Kent’s Com. 281.) In the case of Vielie agt. Osgood, (8 Barb. S. C. R. 130,) it was held by the general term in the 4th district, Paige, Willard, and Hand, Justices, that the trustees of a religious corporation, under the act before referred to, have not the power to sell and convey by an absolute deed in fee a slip in the church or meeting-house.

That such power is limited to a demise or lease of the real estate of the corporation, or to the renting of the pews in the church of the corporation. See also Voorhees and wife agt. the Presbyterian Church of Amsterdam, (8 Barb. S. C. R. 135,) and the Reformed Protestant Dutch Church of Garden-st. agt. Mott and others, (7th Paige R. 77.) There are no authorities, which I have met with, in conflict with those to which I have referred.

Applying the principles deducible from those to the present case, it seems to follow, that neither Tichnor nor Johnson, the defendant, have acquired any title to the slip in question. But how stands the case with the plaintiffl Has he acquired any title 1 Most clearly not, if the views above expressed are sound. The action proceeds upon the assumption that the defendant is in the possession and occupancy of the slip, and is in the place of the former action of .ejectment by the plaintiff to recover the possession from the defendant.

In order to recover he must show a title in himself better than that of defendant. This he has not done. No one, it seems to me, but the trustees of the society can deny the defendant’s right to remain in the occupancy of the slip in question. The plaintiff’s claim is founded upon a purchase from the trustees, which was equally void, for want of power in the latter to sell, with the sale to the defendant. The defendant is, in my opinion, entitled to judgment.